Hari Ram Vs State of Rajasthan

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 907___OF 2009

(Arising out of S.L.P.(Crl.)No.3336 of 2006)

Hari Ram ... Appellant Vs.

State of Rajasthan & Anr. ... Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. This appeal raises certain questions which are

fundamental to the understanding and implementation

of the objects for which the Juvenile Justice (Care

and Protection of Children) Act, 2000 (hereinafter

referred to as the ‘Juvenile Justice Act, 2000’)

was enacted. The said law which was enacted to deal

with offences committed by juveniles, in a manner

which was meant to be different from the law

applicable to adults, is yet to be fully

appreciated by those who have been entrusted with

the responsibility of enforcing the same, possibly

on account of their inability to adapt to a system

which, while having the trappings of the general

criminal law, is, however, different therefrom.

The very scheme of the aforesaid Act is

rehabilitatory in nature and not adversarial which

the courts are generally used to. The

implementation of the said law, therefore, requires

a complete change in the mind-set of those who are

vested with the authority of enforcing the same,

without which it will be almost impossible to

achieve the objects of the Juvenile Justice Act,

2000.

3. The appellant, Hari Ram, was arrested along

with several others on 30.11.1998, for the alleged

commission of offences under Sections 148, 302,

149, Section 325 read with Section 149 and Section

323/149 Indian Penal Code. After the case was

2

committed for trial, the Additional Sessions Judge,

Didwana, by his order dated 3rd April, 2000, in

Sessions Case No.54 of 1999 determined the age of

the accused to be below 16 years on the date of

commission of the offence and after declaring him

to be a juvenile, directed that he be tried by the

Juvenile Justice Board, Ajmer, Rajasthan.

4. This appeal has been filed against the common

order dated 7th December, 2005, passed by the

Jodhpur Bench of the Rajasthan High Court in

Crl. Revision Petition No.165 of 2000, filed by

the Respondent No.2 herein and in Crl. Revision

Petition No.199 of 2005 filed by the appellant,

also being aggrieved by the said common order.

While Crl. Revision No.199 filed by the

appellant herein challenging the framing of

charges was dismissed, Crl. Revision No.165

filed by the State of Rajasthan was allowed

holding that the appellant was not a juvenile

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and the provisions of the Juvenile Justice Act,

2000, were not, therefore, applicable to him.

5. According to the appellant’s father, the

appellant’s date of birth is Kartik Sudi 1,

Samvat Year 2039, which is equivalent to 17th

October, 1982, whereas the offence was alleged

to have been committed on 30th October, 1998,

which mathematically indicates that at the time

of commission of the offence, the appellant had

completed 16 years and 13 days and was,

therefore, excluded from the scope and

operation of the Juvenile Justice Act, 2000.

Furthermore, the medical examination conducted

in respect of the appellant by a Medical Board

indicated that his age at the relevant time was

between 16 and 17 years. After considering

the various decisions of this Court indicating

the manner in which the age of a juvenile is to

be determined, the High Court observed that the

inescapable conclusion which could be arrived

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at is that on the date of the incident, the

accused-appellant herein was above 16 years of

age and was, therefore, not governed by the

provisions of the Juvenile Justice Act, 1986

(hereinafter referred to as the ‘1986 Act’).

6. It is the said order of the High Court which

has been impugned in this appeal.

7. Appearing for the appellant, Mr. Sushil Kumar

Jain, learned Advocate, submitted that the High

Court had acted in a highly technical manner in

holding that the appellant was not a juvenile

and had in the process defeated the very object

of the Juvenile Justice Act, 2000, which is

aimed at rehabilitating juvenile offenders in

order to bring them back to main-stream society

and to give them an opportunity to rehabilitate

themselves as useful citizens of the future.

In fact, the definition of “juvenile” in the

1986 Act was altered in the Juvenile Justice

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Act, 2000, to include persons who had not

completed 18 years of age. In other words, the

age until which a male child in conflict with

law would be treated as a juvenile was raised

from 16 years to 18 years.

8. Mr. Jain submitted that the learned Single

Judge of the High Court appears to have

misconstrued the decisions cited before him in

the case of Santenu Mitra vs. State of West

Bengal, [(1998) 5 SCC 697] and Umesh Chandra

vs. State of Rajasthan [(1982) 2 SCC 202],

wherein the admissibility of certain records,

including school records maintained by private

institutions, under Section 35 of the Indian

Evidence Act, 1872 was under consideration. On

the other hand, Mr. Jain referred to an earlier

decision of this Court in the case of Mohd.

Ikram Hussain vs. State of U.P. & Ors. [1964

(5) SCR 86], where certain copies from the

school registers were looked into and it was

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held that the same amounted to evidence under

the Indian Evidence Act as the entries in the

school registers were made long before the same

were used by way of evidence. This Court

observed that the said entries were reliable as

they had been made ante litem motam. Mr. Jain

also referred to certain observations made in

Umesh Chandra’s case (supra) while interpreting

Section 35 of the Indian Evidence Act to the

effect that there is no legal requirement that

a public or other official book should be kept

only by a public officer and all that is

required is that it should be regularly kept in

discharge of official duties.

9. In support of his submissions, Mr. Jain lastly

referred to the decision of this Court in the

case of Rajinder Chandra vs. State of

Chhattisgarh & Anr. [(2002) 2 SCC 287], wherein

in paragraph 5 this Court observed as follows :

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“5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das v. State of Bihar [(2005) 5 SCC 488] this Court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court squarely applies to the facts of the present case.”

10. Mr. Jain emphasised that this was also a

similar case in which the record, according to

the date of birth indicated by his father and

another witness – Narain Ram, shows that he was

just 13 days older than the cut-off limit of 16

years provided in Section 2(h) of the 1986 Act.

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11. Mr. Jain submitted that since the incident is

alleged to have taken place as far back as on

30th October, 1998 and more than 10 years have

elapsed since then and the definition of

“juvenile” had since been amended to include

children who had not yet attained the age of 18

years, the High Court should not have taken

such a hypertechnical view and should not have

interfered with the order of the Additional

Sessions Judge, Didwana, declaring the

appellant to be a juvenile.

12. On behalf of the respondents it was submitted

that even on the basis of the age as disclosed

by the appellant’s father, the appellant was

over 16 years of age on the date of commission

of the offence and could not, therefore, be

treated to be a juvenile as defined in the 1986

Act. It was submitted that the documents,

which were produced in support of the

appellant’s claim to be a minor, show him to

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have crossed the age of 16 years on the date of

commission of the offence and the High Court

had merely corrected the error of the

Additional Sessions Judge, Didwana, in

calculation of the appellant’s age. According

to the respondents, the order of the High Court

impugned in the present appeal did not call for

any interference and the appeal was liable to

be dismissed.

13. As indicated in the very beginning of this

judgment, the Juvenile Justice Act, 2000, was

enacted to deal with offences allegedly

committed by juveniles on a different footing

from adults, with the object of rehabilitating

them. The need to treat children differently

from adults in relation to commission of

offences had been under the consideration of

the Central Government ever since India

achieved independence. With such object in

mind, Parliament enacted the Juvenile Justice

10

Act, 1986, in order to achieve the

constitutional goals contemplated in Articles

15(3), 39(e) and (f), 45 and 47 of the

Constitution imposing on the State a

responsibility of ensuring that all the needs

of children are met and that their basic human

rights are fully protected. Subsequently, in

keeping with certain international Conventions

and in particular the Convention on the Rights

of the Child and the United Nations Standard

Minimum Rules for the Administration of

Juvenile Justice, 1985, commonly known as the

Beijing Rules, the Legislature enacted the

Juvenile Justice (Care and Protection of

Children) Act, 2000 to attain the following

objects :

(i) to lay down the basic principles for administering justice to a juvenile or the child;

(ii) to make the juvenile system meant for a juvenile or the child more appreciative of the developmental needs in comparison

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to criminal justice system as applicable to adults;

(iii) to bring the juvenile law in conformity with the United Convention on the Rights of the Child;

(iv) to prescribe a uniform age of eighteen years for both boys and girls;

(v) to ensure speedy disposal of cases by the authorities envisaged under this Bill regarding juvenile or the child within a time limit of four months;

(vi) to spell out the role of the State as a facilitator rather than doer by involving voluntary organizations and local bodies in the implementation of the proposed legislation;

(vii) to create special juvenile police units with a humane approach through sensitization and training of police personnel;

(viii) to enable increased accessibility to a juvenile or the child by establishing Juvenile Justice Boards and Child Welfare Committees and Homes in each district or group of districts;

(ix) to minimize the stigma and in keeping with the developmental needs of the juvenile or the child, to separate the Bill into two parts – one for juveniles in conflict with law and the other for the juvenile or the child in need of care and protection;

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(x) to provide for effective provisions and various alternatives for rehabilitation and social reintegration such as adoption, foster care, sponsorship and aftercare of abandoned, destitute, neglected and delinquent juvenile and child.”

The said Act ultimately came into force on 1st

April, 2001.

14. Section 2(k) of the said Act defines a juvenile

or child as a person who has not completed

eighteenth years of age. A broad distinction

has, however, been made between juveniles in

general and juveniles who are alleged to have

committed offences. Section 2(l) defines “a

juvenile in conflict with law” as a juvenile

who is alleged to have committed an offence.

Determination of age, therefore, assumes great

importance in matters brought before the

Juvenile Justice Boards. In fact, Chapter II of

the Juvenile Justice Act, 2000, deals

exclusively with juveniles in conflict with law

13

and provides a complete Code in regard to

juveniles who are alleged to have committed

offences which are otherwise punishable under

the general law of crimes.

15. Section 4 of the Juvenile Justice Act, 2000,

provides for constitution of Juvenile Justice

Boards for every district in a State to

exercise and discharge the duties conferred or

imposed on such Boards in relation to juveniles

in conflict with law.

16. Section 18 of the Act prohibits joint

proceedings and trial of a juvenile and a

person who is not a juvenile and the punishment

that can be awarded to a juvenile is enumerated

in Section 15.

17. Since the application of the Juvenile Justice

Act, 2000, to a person brought before the

Juvenile Justice Board (hereinafter referred to

as ‘the Board’) depends on whether such person

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is a juvenile or not within the meaning of

Section 2(k) thereof, the determination of age

assumes special importance and the said

responsibility has been cast on the said Board.

Subsequently, after the decision of a

Constitution Bench of this Court in the case of

Pratap Singh vs. State of Jharkhand & Another

[(2005) 3 SCC 551], the legislature amended the

provisions of the Act by the Amendment Act,

2006, by substituting Section 2(l) to define a

“juvenile in conflict with law” as a “juvenile

who is alleged to have committed an offence and

has not completed eighteen years of age as on

the date of commission of such offence”

(emphasis supplied) and to include Section 7-A

which reads as follows:-

“7A. Procedure to be followed when claim of juvenility is raised before any court.- (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary

15

(but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect.”

(Emphasis supplied)

18. Section 7-A makes provision for a claim of

juvenility to be raised before any Court at any

stage, even after final disposal of a case and

sets out the procedure which the Court is required

to adopt, when such claim of juvenility is raised.

It provides for an inquiry, taking of evidence as

may be necessary (but not affidavit) so as to

determine the age of a person and to record a

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finding whether the person in question is a

juvenile or not. The aforesaid provisions were,

however, confined to Courts, and proved inadequate

as far as the Boards were concerned. Subsequently,

in the Juvenile Justice (Care and Protection of

Children) Rules, 2007, which is a comprehensive

guide as to how the provisions of the Juvenile

Justice Act, 2000, are to be implemented, Rule 12

was introduced providing the procedure to be

followed by the Courts, the Boards and the Child

Welfare Committees for the purpose of determination

of age in every case concerning a child or juvenile

or a juvenile in conflict with law. Since the

aforesaid provisions are interconnected and lay

down the procedures for determination of age, the

said Rule is reproduced hereinbelow:

“12. Procedure to be followed in determination of Age.- (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile

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or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b)and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare

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the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) if the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia in terms of section 7A, section 64

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of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.”

Sub-Rules (4) and (5) of Rule 12 are of special

significance in that they provide that once the age

of a juvenile or child in conflict with law is

found to be less than 18 years on the date of

offence on the basis of any proof specified in sub-

rule (3) the Court or the Board or as the case may

be the Child Welfare Committee appointed under

Chapter IV of the Act, has to pass a written order

stating the age of the juvenile or stating the

status of the juvenile, and no further inquiry is

to be conducted by the Court or Board after

examining and obtaining any other documentary proof

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referred to in Sub-rule (3) of Rule 12. Rule 12,

therefore, indicates the procedure to be followed

to give effect to the provisions of Section 7A when

a claim of juvenility is raised.

19. One of the problems which has frequently arisen

after the enactment of the Juvenile Justice Act,

2000, is with regard to the application of the

definition of “juvenile” under Section 2(k) and (l)

in respect of offences alleged to have been

committed prior to 1st April, 2001 when the Juvenile

Justice Act, 2000 came into force, since under the

1986 Act, the upper age limit for male children to

be considered as juveniles was 16 years. The

question which has been frequently raised is,

whether a male person who was above 16 years on the

date of commission of the offence prior to 1st

April, 2001, would be entitled to be considered as

a juvenile for the said offence if he had not

completed the age of 18 years on the said date. In

other words, could a person who was not a juvenile

21

within the meaning of the 1986 Act when the offence

was committed, but had not completed 18 years, be

governed by the provisions of the Juvenile Justice

Act, 2000, and be declared as a juvenile in

relation to the offence alleged to have been

committed by him?

20. The said question, which is identical to the

question raised in these proceedings, was

considered in the case of Arnit Das vs. State of

Bihar [(2000) 5 SCC 488], wherein, in the light of

the definition of “juvenile” under the 1986 Act,

which was then subsisting, this Court came to a

finding that the procedures prescribed by the 1986

Act were to be adopted only when the Competent

Authority found the person brought before it or

appearing before it to be under 16 years of age, if

a boy, and under 18 years of age, if a girl, on the

date of being so brought or such appearance first

before the Competent Authority. This Court also

came to a finding that the date of commission of

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offence is irrelevant for finding out whether the

person is a juvenile within the meaning of Clause

(h) of Section 2 of the 1986 Act. In the said

decision, this Court sought to distinguish the

earlier decisions in the case of Santenu Mitra’s

case (supra), Bhola Bhagat vs. State of Bihar

[(1997) 8 SCC 720] and Krishna Bhagwan vs. State of

Bihar [AIR 1989 Pat. 217], which was a Full Bench

decision. It also over-ruled the decision of the

Calcutta High Court in Dilip Saha vs. State of W.B.

[AIR 1978 Cal. 529], where the Calcutta High Court,

while interpreting the provisions of the West

Bengal Children’s Act, 1959, which is a pari

materia enactment, took the view that the age of

the accused at the time of commission of the

offence is the relevant age for attracting the

provisions of the said Act and not his age at the

time of trial.

21. The question which fell for decision in Arnit

Das’s case (supra), once again fell for the

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consideration of this Court in the case of Pratap

Singh’s case (supra), where the decision of this

Court in Umesh Chandra’s case (supra), which

expressed a view which was contrary to that

expressed in Arnit Das’s case (supra), was brought

to the notice of the Court, which referred the

matter to the Constitution Bench to settle the

divergence of views. In fact, the Constitution

Bench formulated two points for decision, namely,

(a) Whether the date of occurrence will be the reckoning date for determining the age of the alleged offender as juvenile offender or the date when he is produced in the Court/competent Authority?

(b) Whether the Act of 2000 will be applicable in a case where a proceeding is initiated under the 1986 Act and was pending when the Act of 2000 was enforced with effect from 1.4.2001?

22. While considering the first question, the

Constitution Bench had occasion to consider the

24

decision of the three Judge Bench in Umesh

Chandra’s case (supra), wherein it was held that

the relevant date for applicability of the Act so

far as age of the accused, who claims to be a

child, is concerned, is the date of occurrence and

not the date of trial. Consequently, the decision

in Arnit Das’s case (supra) was over-ruled and the

view taken in Umesh Chandra’s case (supra) was

declared to be the correct law. On the second

point, after considering the provisions of Sections

3 and 20 of the Juvenile Justice Act, 2000, along

with the definition of “juvenile” in Section 2(k)

of the Juvenile Justice Act, 2000, as contrasted

with the definition of a male juvenile in Section

2(h) of the 1986 Act, the majority view was that

the 2000 Act would be applicable to a proceeding in

any Court/Authority initiated under the 1986 Act

which is pending when the 2000 Act came into force

and the person had not completed 18 years of age as

on 1.4.2001. In other words, a male offender, who

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was being proceeded with in any Court/Authority

initiated under the 1986 Act and had not completed

the age of 18 years on 1.4.2001, would be governed

by the provisions of Juvenile Justice Act, 2000.

23. In his concurring judgment, S.B. Sinha, J.,

while considering the provisions of Section 20 of

the Juvenile Justice Act, 2000, observed that for

the purpose of attracting Section 20 it had to be

established that (i) on the date of coming into

force the proceedings in which the petitioner was

accused was pending; and (ii) on that day he was

below the age of 18 years. The unanimous view of

the Constitution Bench was that the provisions of

the Juvenile Justice Act, 2000, have prospective

effect and not retrospective effect, except to

cover cases where though the male offender was

above 16 years of age at the time of commission of

the offence, he was below 18 years of age as on

1.4.2001. Consequently, the said Act would cover

earlier cases only where a person had not completed

26

the age of 18 years on the date of its commencement

and not otherwise.

24. The said decision in Pratap Singh’s case

(supra) led to the substitution of Section 2(l) and

the introduction of Section 7A of the Act and the

subsequent introduction of Rule 12 in the Juvenile

Justice Rules, 2007, and the amendment of Section

20 of the Act.

25. Read with Sections 2(k), 2(l), 7A and Rule 12,

Section 20 of the Juvenile Justice Act, 2000, as

amended in 2006, is probably the Section most

relevant in setting at rest the question raised in

this appeal, as it deals with cases which were

pending on 1st April, 2001, when the Juvenile

Justice Act, 2000, came into force. The same is,

accordingly, reproduced hereinbelow :

“20. Special provision in respect of pending cases.-Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act

27

comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence.

[Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.

Explanation.- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.]”

26. The Proviso and the Explanation to Section 20

were added by Amendment Act 33 of 2006, to set at

rest any doubts that may have arisen with regard to

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the applicability of the Juvenile Justice Act,

2000, to cases pending on 1st April, 2001, where a

juvenile, who was below 18 years at the time of

commission of the offence, was involved. The

Explanation which was added in 2006, makes it very

clear that in all pending cases, which would

include not only trials but even subsequent

proceedings by way of revision or appeal, the

determination of juvenility of a juvenile would be

in terms of Clause (l) of Section 2, even if the

juvenile ceased to be a juvenile on or before 1st

April, 2001, when the Juvenile Justice Act, 2000,

came into force, and the provisions of the Act

would apply as if the said provision had been in

force for all purposes and for all material times

when the alleged offence was committed. In fact,

Section 20 enables the Court to consider and

determine the juvenility of a person even after

conviction by the regular Court and also empowers

the Court, while maintaining the conviction, to set

29

aside the sentence imposed and forward the case to

the Juvenile Justice Board concerned for passing

sentence in accordance with the provisions of the

Juvenile Justice Act, 2000.

27. At this point it may be noted that the decision

of the Constitution Bench in Pratap Singh’s case

(supra) was rendered at a point of time when the

amendments to Sections 2(l) and 20 and the

introduction of Section 7-A had not yet been

effected, nor was Rule 12 of the 2007 Rules

available. Several decisions on the applicability

of the 2000 Act to children who were above 16 but

below 18 years on the date of commission of the

offence have been rendered after the Juvenile

Justice Act, 2000, came into force and several

others were rendered after the amendments were

introduced in the said Act by Amendment Act 33 of

2006 and the introduction of the 2007 Rules. The

decisions rendered by this Court and the High

Courts prior to 1st April, 2001, when the Juvenile

30

Justice Act, 2000, came into force and thereafter

can, therefore, be divided into two groups. The

decision in Pratap Singh’s case (supra) and in the

case of Munney @ Rahat Jan Khan vs. State of U.P.

[(2006) 12 SCC 697] fall into the first category,

whereas the decisions in Jameel vs. State of

Maharashtra [(2007) 11 SCC 420], Vimal Chadha vs.

Vikas Chaudhary [(2008) 8 SCALE 608], Babloo Pasi

vs. State of Jharkhand [(2008) 13 SCALE 137] and

Ranjit Singh vs. State of Haryana [(2008) 9 SCC

453] fall into the second category. Although, the

Constitution Bench decision in Pratap Singh’s case

(supra) and Munney’s case (supra) are not really

relevant since they have been rendered prior to 22nd

August, 2006, when the Amending Act 33 of 2006 came

into force, they assume a modicum of significance

since they have been referred to and relied upon

even after the Amending Act and the 2007 Rules came

into force on 22.8.2006 and 26.10.2007,

respectively.

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28. Of the decisions rendered after the amendments

effected in 2006 to the Juvenile Justice Act, 2000,

the first decision of note is that of Jameel’s case

(supra) rendered on 16.1.2007 wherein the

amendments to the Act effected by the Amendment Act

33 of 2006, which came into effect on 22.8.2006,

were not even noticed. The next decision rendered

on 27.5.2008 is in the case of Vimal Chadha’s case

(supra), wherein, although, the amendment of the

Act and the introduction of the Juvenile Justice

Rules, 2007, were brought to the notice of the

Court, the same were not considered and the

decision was rendered in the light of the decision

rendered in Pratap Singh’s case (supra) and other

cases decided prior to 1.4.2001.

29. The next decision rendered on the same point

on 11.9.2008 was the decision in Ranjit Singh’s

case (supra) wherein also the amendments to Section

2(l) and 20 and the introduction of Section 7-A in

32

the Juvenile Justice Act, 2000, and the

introduction of the 2007 Rules had not been

considered and the decision passed sub silentio.

30. Similar was the situation in Babloo Pasi’s case

(supra) decided on 3.10.2008 which basically dealt

with Section 49 of the Juvenile Justice Act, 2000

and Rule 22 of the Jharkhand Juvenile Justice (Care

and Protection of Children) Rules, 2003, which is

pari materia with Rule 12 of the 2007 Rules.

While deciding the said case, the Hon’ble Judges

did not also have occasion to consider the

amendments effected to the Juvenile Justice Act,

2000, by the Amendment Act 33 of 2006 which had

just come into force on 22.8.2006.

31. None of the aforesaid decisions are of much

assistance in deciding the question with regard to

the applicability of the definition of “Juvenile”

in Section 2(k) and 2(l) of the Juvenile Justice

Act, 2000, as amended in 2006, whereby the

33

provisions of the said Act were extended to cover

juveniles who had not completed 18 years of age on

or before the coming into force of the Juvenile

Justice Act, 2000 on 1.4.2001 (Emphasis supplied).

The effect of the proviso to Section 7-A introduced

by the Amending Act makes it clear that the claim

of juvenility may be raised before any Court which

shall be recognized at any stage, even after final

disposal of the case, and such claim shall be

determined in terms of the provisions contained in

the Act and the Rules made thereunder which

includes the definition of “Juvenile” in Section

2(k) and 2(l) of the Act even if the Juvenile had

ceased to be so on or before(emphasis supplied) the

date of commencement of the Act. The said intention

of the legislature was reinforced by the amendment

effected by the said Amending Act to Section 20 by

introduction of the Proviso and the Explanation

thereto, wherein also it has been clearly indicated

that in any pending case in any Court the

34

determination of juvenility of such a juvenile has

to be in terms of clause 2(l) even if the juvenile

ceases to be so “on or before the date of

commencement of this Act” (emphasis supplied) and

it was also indicated that the provisions of the

Act would apply as if the said provisions had been

in force for all purposes and at all material times

when the alleged offence was committed.

32. Apart from the aforesaid provisions of the 2000

Act, as amended, and the Juvenile Justice Rules,

2007, Rule 98 thereof has to be read in tandem with

Section 20 of the Juvenile Justice Act, 2000, as

amended by the Amendment Act, 2006, which provides

that even in disposed of cases of juveniles in

conflict with law, the State Government or the

Board could, either suo motu or on an application

made for the purpose, review the case of a

juvenile, determine the juvenility and pass an

appropriate order under Section 64 of the Act for

the immediate release of the juvenile whose period

35

of detention had exceeded the maximum period

provided in Section 15 of the Act, i.e., 3 years.

33. In addition to the above, Section 49 of the

Juvenile Justice Act, 2000 is also of relevance and

is reproduced hereinbelow :

“49. Presumption and determination of age.-(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.

(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person.”

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34. Sub-Section (1) of Section 49 vests the

Competent Authority with power to make due inquiry

as to the age of a person brought before it and for

the said purpose to take such evidence as may be

necessary (but not an affidavit) and shall record a

finding as to whether the person is a juvenile or a

child or not, stating his age as nearly as may be.

Sub-Section (2) is of equal importance as it

provides that no order of a Competent Authority

would be deemed to have become invalid merely on

account of any subsequent proof that the person, in

respect of whom an order is made, is not a juvenile

or a child, and the age recorded by the Competent

Authority to be the age of the person brought

before it, would, for the purpose of the Act, be

deemed to be the true age of a child or a juvenile

in conflict with law. Sub-Rule (3) of Rule 12

indicates that the age determination inquiry by the

Court or Board, by seeking evidence, is to be

derived from :

37

(i) the matriculation or equivalent certificates, if available, and in the absence of the same;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a Panchayat;

35. Sub-Clause (b) of Rule 12(3) provides that only

in the absence of any such document, would a

medical opinion be sought for from a duly

constituted Medical Board, which would declare the

age of the juvenile or the child. In case exact

assessment of the age cannot be done, the Court or

the Board or as the case may be, the Child Welfare

Committee, for reasons to be recorded by it, may,

if considered necessary, give benefit to the child

or juvenile by considering his/her age on the lower

side within a margin of one year.

36. As will, therefore, be clear from the

provisions of the Juvenile Justice Act, 2000, as

38

amended by the Amendment Act, 2006 and the Juvenile

Justice Rules, 2007, the scheme of the Act is to

give children, who have, for some reason or the

other, gone astray, to realise their mistakes,

rehabilitate themselves and rebuild their lives and

become useful citizens of society, instead of

degenerating into hardened criminals.

37. Of the two main questions decided in Pratap

Singh’s case (supra), one point is now well

established that the juvenility of a person in

conflict with law has to be reckoned from the date

of the incident and not from the date on which

cognizance was taken by the Magistrate. The effect

of the other part of the decision was, however,

neutralised by virtue of the amendments to the

Juvenile Justice Act, 2000, by Act 33 of 2006,

whereunder the provisions of the Act were also made

applicable to juveniles who had not completed

eighteen years of age on the date of commission of

the offence. The law as now crystallized on a

39

conjoint reading of Sections 2(k), 2(l), 7A, 20 and

49 read with Rules 12 and 98, places beyond all

doubt that all persons who were below the age of 18

years on the date of commission of the offence even

prior to 1st April, 2001, would be treated as

juveniles, even if the claim of juvenility was

raised after they had attained the age of 18 years

on or before the date of commencement of the Act

and were undergoing sentence upon being convicted.

38. The instant case is covered by the amended

provisions of Sections 2(k), 2(l), 7A and 20 of the

Juvenile Justice Act, 2000. However, inasmuch as,

the appellant was found to have completed the age

of 16 years and 13 days on the date of alleged

occurrence, the High Court was of the view that the

provisions of the Juvenile Justice Act, 1986, would

not apply to the appellant’s case. Of course, the

High Court, while deciding the matter, did not have

the benefit of either the amendment of the Act or

the introduction of the Juvenile Justice Rules,

40

2007. Even otherwise, the matter was covered by

the decision of this Court in the case of Rajinder

Chandra’s case (supra), wherein this Court, inter

alia, held that when a claim of juvenility is

raised and on the evidence available two views are

possible, the Court should lean in favour of

holding the offender to be a juvenile in borderline

cases. In any event, the statutory provisions have

been altered since then and we are now required to

consider the question of the claim of the appellant

that his date of birth was Kartik Sudi 1, Samvat

Year 2039, though no basis has been provided for

the fixation of the said date itself in the light

of the amended provisions. Often, parents of

children, who come from rural backgrounds, are not

aware of the actual date of birth of a child, but

relate the same to some event which may have taken

place simultaneously. In such a situation, the

Board and the Courts will have to take recourse to

the procedure laid down in Rule 12, but such an

41

exercise is not required to be undertaken in the

present case since even according to the

determination of the appellant’s age by the High

Court the appellant was below eighteen years of age

when the offence was alleged to have been

committed.

39. Having regard to the views expressed

hereinabove, we are unable to sustain the impugned

order of the High Court in holding that the

provisions of the Juvenile Justice Act, 1986, would

not be applicable to the appellant’s case since he

was allegedly 13 days above the age prescribed.

40. In the instant case, the appellant was arrested

on 30.11.1998 when the 1986 Act was in force and

under Clause (h) of Section 2 a juvenile was

described to mean a child who had not attained the

age of sixteen years or a girl who had not attained

the age of eighteen years. It is with the enactment

of the Juvenile Justice Act, 2000, that in Section

42

2(k) a juvenile or child was defined to mean a

child who had not completed eighteen years of age

which was given prospective prospect. However, as

indicated hereinbefore after the decision in Pratap

Singh’s case (supra), Section 2(l) was amended to

define a juvenile in conflict with law to mean a

juvenile who is alleged to have committed an

offence and has not completed eighteen years of age

as on the date of commission of such offence;

Section 7A was introduced in the 2000 Act and

Section 20 thereof was amended whereas Rule 12 was

included in the Juvenile Justice Rules, 2007, which

gave retrospective effect to the provisions of the

Juvenile Justice Act, 2000. Section 7A of the

Juvenile Justice Act, 2000, made provision for the

claim of juvenility to be raised before any Court

at any stage, as has been done in this case, and

such claim was required to be determined in terms

of the provisions contained in the 2000 Act and the

Rules framed thereunder, even if the juvenile had

43

ceased to be so on or before the date of

commencement of the Act. Accordingly, a juvenile

who had not completed eighteen years on the date of

commission of the offence was also entitled to the

benefits of the Juvenile Justice Act, 2000, as if

the provisions of Section 2(k) had always been in

existence even during the operation of the 1986

Act.

41. The said position was re-emphasised by virtue

of the amendments introduced in Section 20 of the

2000 Act, whereby the Proviso and Explanation were

added to Section 20, which made it even more

explicit that in all pending cases, including

trial, revision, appeal and any other criminal

proceedings in respect of a juvenile in conflict

with law, the determination of juvenility of such a

juvenile would be in terms of clause (l) of Section

2 of the 2000 Act, and the provisions of the Act

would apply as if the said provisions had been in

force when the alleged offence was committed.

44

42. In the instant case, there is no controversy

that the appellant was about sixteen years of age

on the date of commission of the alleged offence

and had not completed eighteen years of age. In

view of Sections 2(k), 2(l) and 7A read with

Section 20 of the said Act, the provisions thereof

would apply to the appellant’s case and on the date

of the alleged incident it has to be held that he

was a juvenile.

43. The appeal has, therefore, to be allowed on

the ground that notwithstanding the definition of

“juvenile” under the Juvenile Justice Act, 1986,

the appellant is covered by the definition of

“juvenile” in Section 2(k) and the definition of

“juvenile in conflict with law” in Section 2(l) of

the Juvenile Justice Act, 2000, as amended.

44. We, therefore, allow the appeal and set aside

the order passed by the High Court and in keeping

with the provisions of Sections 2(k), 2(l),7A and

45

20 of the Juvenile Justice Act, 2000 and Rules 12

and 98 of the Juvenile Justice Rules, 2007, hold

that since the appellant was below 18 years of age

at the time of commission of the offence the

provisions of the said Act would apply in his case

in full force.

45. The matter is accordingly remitted to the

Juvenile Justice Board, Ajmer, for disposal in

accordance with law, within three months from the

date of receipt of a copy of this order, having

regard to the fact that the offence is alleged to

have been committed more than ten years ago. If,

however, the appellant has been in detention for a

period which is more than the maximum period for

which a juvenile may be confined to a Special Home,

the Board shall release the appellant from custody

forthwith.

________________J. (ALTAMAS KABIR)

46

________________J. (CYRIAC JOSEPH)

New Delhi Dated: 05.05.2009

47

HARI RAM Vs STATE OF RAJASTHAN

HARI RAM Vs STATE OF RAJASTHAN