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CASE NO.: Special Leave Petition (crl.)  3749 of 2001

PETITIONER: Pratap Singh                                                             

RESPONDENT: State of Jharkhand & Anr.                                        

DATE OF JUDGMENT: 02/02/2005

BENCH: S.B. Sinha

JUDGMENT: J U D G M E N T

S.B. SINHA, J:

INTRODUCTION :

       Juvenile Justice Act in its present form has been enacted in discharge  of the obligation of our country to follow the United National Standard  Minimum Rules for the Administration of Juvenile Justice, 1985 also known  as Beijing Rules (the Rules).   

THE RULES :         Part I of the said Rules provides for the general principles which are  said to be of fundamental perspectives referring to comprehensive social  policy in general and aiming at promoting juvenile welfare to the greatest  possible extent, which would minimize the necessity of intervention by the  juvenile justice system and, in turn, will reduce the harm that was caused by  any intervention.  The important role that a constructive social policy for  juvenile is to play has been pointed out in Rules 1.1 to 1.13 inter alia in the  mater of prevention of juvenile crime and delinquency.  Rule 1.4 defines  juvenile justice as an integral part of the national development process of  each country, within a comprehensive framework of social justice from all  juveniles, and, thus, at the same time, contributing to the protection of the  young and maintenance of a peaceful order in the society.  While Rule 1.6  refers to the necessity of the juvenile justice system being systematically  developed and coordinated with a view to improving and sustaining the  competence of personnel involved in the services including their methods,  approaches and attitudes, Rule 1.5 seeks to take account of existing  conditions in Member States which would cause the manner of  implementation of particular rules necessarily to be different from the  manner adopted in other States.  Rule 2.1 provides for application of the  rules without distinction of any kind.  Rule 2.2 provides for the definitions  which are as follows:

"(a) A juvenile is a child or young person who, under the  respective legal systems, may be dealt with for an  offence in a manner which is different from an adult;

(b) An offence is any behaviour (act or omission) that is  punishable by law under the respective legal systems;

(c) A juvenile offender is a child or young person who is  alleged to have commited or who has been found to have  committed an offence."

       Rule 2.3 inter alia provides for making a set of laws, rules and  provisions specifically applicable to juvenile offenders and institutions and

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bodies entrusted with the functions of the administration of juvenile justice  and designed:

"(a) To meet the varying needs of juvenile offenders,  while protecting their basic rights;

(b) To meet the needs of society;

(c) To implement the following rules thoroughly and  fairly."

       The age of a juvenile is to be determined by the Member Countries  having regard to its legal system, thus fully respecting the economic, social  political, cultural and legal systems.  This has made a wide variety of ages  coming under the definition of "juvenile", ranging from 7 years to 18 years  or above.  Rule 3 provides for extension of the Rules covering (a) status  offences; (b) juvenile welfare and care proceedings and (c) proceedings  dealing with young adult offenders, depending of course on each given age  limit.  Rule 4 provides that the minimum age of criminal responsibility  should not be fixed at too low an age level bearing in mind the facts of  emotional, mental and intellectual maturity.  Rule 5 provides that the  juvenile justice system shall emphasize the well-being of the juvenile and  shall ensure that any reaction to juvenile offenders shall always be in  proportion to the circumstances of both the offenders and the offence.  Rule  6 provides for scope of discretion.  Rule 7.1 provides for the rights of  juvenile which is as under:

"Basic procedural safeguards such as the presumption of  innocence, the right to be notified of the charges, the  right to remain silent, the right to counsel, the right to the  presence of a parent or guardian, the right to confront and  cross-examine witnesses and the right to appeal to a  higher authority shall be guaranteed at all stages of  proceedings."

       Rule 8 provides for the protection of privacy.  Rule 9 provides that the  said rules shall not be interpreted as precluding the application of the  Standard Minimum Rules for the treatment of prisoners adopted by the  United Nations and other human rights instruments and standards recognized  by the international community that relate to the care and protection of the  young.  Rule 27 also provides for application of the Standard Minimum  Rules for the treatment of prisoners adopted by the United Nations.       

       Part II of the said Rules provides for investigation and prosecution,  diversion, specialization within the police, detention pending trial.  Rule 13  reads as under:

"13.1 Detention pending trial shall be used only as a  measure of last resort and for the shortest possible period  of time.

13.2 Whenever possible, detention pending trial shall be  replaced by alternative measures, such as close  supervision, intensive care or placement with a family or  in an educational setting or home.

13.3 Juveniles under detention pending trial shall be  entitled to all rights and guarantees of the Standard  Minimum Rules for the Treatment of Prisoners adopted  by the United Nations.

13.4 Juveniles under detention pending trial shall be kept  separate from adults and shall be detained in a separate

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institution or in a separate part of an institution also  holding adults.

13.5 While in custody, juveniles shall receive care,  protection and all necessary individual assistance \026  social, educational, vocational, psychological, medical  and physical \026 that they may require in view of their age,  sex and personality."

       Part III provides for adjudication and disposition in terms whereof  competent authorities prescribed were competent to adjudicate.  Rule 15  provides for legal counsel, parents and guardians.  Rule 16 provides for  Social Inquiry Reports.  Rule 16.1 reads as under:

"In all cases except those involving minor offences,  before the competent authority renders a final disposition  prior to sentencing, the background and circumstances in  which the juvenile is living or the conditions under which  the offence has been committed shall be properly  investigated so as to facilitate judicious adjudication of  the case by the competent authority."

       Rule 17 provides for guiding principles in adjudication and  disposition which reads as under:

"17.1 The disposition of the competent authority shall be  guided by the following principles:

(a) The reaction taken shall always be in proportion not  only to the circumstances and the gravity of the offence  but also to the circumstances and the needs of the  juvenile as well as to the needs of the society;

(b) Restrictions on the personal liberty of the juvenile  shall be imposed only after careful consideration and  shall be limited to the possible minimum;

(c) Deprivation of personal liberty shall not be imposed  unless the juvenile is adjudicated of a serious act  involving violence against another person or of  persistence in committing other serious offences and  unless there is no other appropriate response; (d) The well-being of the juvenile shall be the guiding  factor in the consideration of her or his case.

17.2 Capital punishment shall not be imposed for any  crime committed by juveniles.

17.3 Juveniles shall not be subject to corporal  punishment.

17.4 The competent authority shall have the power to  discontinue the proceedings at any time."

       It has been pointed out that the main difficulty in formulating  guidelines for the adjudication of young persons stems from the fact that  there are unresolved  conflicts of a philosophical nature, such as the  following:

(a)     Rehabilitation versus just result; (b)     Assistance versus repression and punishment; (c)     Reaction according to the singular merits of an individual case  versus reaction according to the protection of society in general; (d)     General deterrence versus individual incapacitation.

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OBJECTS OF JUVENILE JUSTICE LEGISLATION :          The purpose of the Juvenile Justice Legislation is to provide succour  to the children who were being incarcerated along with adults and were  subjected to various abuses.  It would be in the fitness of things that  appreciation of the very object and purpose of the legislation is seen with a  clear understanding which sought to bring relief to juvenile delinquents.

       The problem of Juvenile Justice is, no doubt, one of tragic human  interest so much so in fact that it is not confined to this country alone but  cuts across national boundaries.  In 1966 at the second United Nations  Congress on the Prevention of Crime and Treatment of Offenders at London  this issue was discussed and several therapeutic recommendations were  adopted.  To bring the operations of the juvenile justice system in the  country in conformity with the UN Standard Minimum Rule for the  Administration of juvenile justice, the Juvenile Justice Act came into  existence in 1986.  A review of the working of the then  existing Acts both  State and Parliamentary would indicate that much greater attention was  found necessary to be given to children who may be found in situations of  social maladjustment, delinquency or neglect.  The justice system as  available for adults could not be considered suitable for being applied to  juvenile.  There is also need for larger involvement of informal system and  community based welfare agencies in the case, protection, treatment,  development and rehabilitation of such juveniles.    

       The provisions of the Juvenile Justice Act, 1986 (hereinafter referred  to as "the 1986 Act") and the Juvenile Justice (Care and Protection of  Children) Act, 2000 (56 of 2000) (hereinafter referred to as "the 2000 Act")  are required to be construed having regard to the aforementioned Minimum  Standards as the same  are specifically referred to therein.

The Juvenile Justice Act, 1986 is aimed at achieving the following  objects :

       (i)     To lay down an uniform legal frame-work for juvenile justice in  the country so as to ensure  that no child under any circumstances is lodged  in jail or police lock-up.  This is being ensured by establishing Juvenile  Welfare Boards and Juvenile Courts;         (ii)    To provide for a specialized approach towards the prevention  and treatment of juvenile delinquency in its full range in keeping with the  development needs of the child found in any situation of social  maladjustment;         (iii)   To spell out the machinery and infrastructure required for the  case, protection, treatment, developments and rehabilitations of various  categories of children coming within the purview of the Juvenile Justice  system.  This is proposed to be achieved by establishing observation homes,  juvenile homes for neglected juveniles and special homes for delinquent  juveniles;         (iv)    To establish norms and standard for the administration of  juvenile justice in terms of investigation and prosecution, adjudication and  disposition and case, treatment and rehabilitation;         (v)     To develop appropriate linkages and coordination between the  formal system of juvenile justice and voluntary agencies engaged in the  welfare of neglected or society maladjusted children and to specifically  define the areas of their responsibilities and roles;         (vi)    To constitute special offences in relation to juveniles and  provide for punishment therefor;         (vii)   To bring the operation of the juvenile justice system in the  country in conformity with the United Nations Standard Minimum Rules for  the Administration of Juvenile Justice.

The various provisions of the 1986 Act provide for a scheme of  uniform juvenile justice system in the country so that a juvenile may not  have to be lodged in jail or police lock-up as well as for prevention and  treatment of juvenile delinquency for care, protection etc.  

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Section 3 provides that where an inquiry has been initiated against a  juvenile even, during the course of such inquiry a juvenile ceased to be such,  then, notwithstanding anything contained therein or any other law for the  time being in force, the inquiry may be continued and orders may be made in  respect of such persons as if such person had continued to be a juvenile.  Chapter II of the Act speaks of competent authorities and institutions for  juveniles such as Juvenile Welfare Boards, Juvenile Courts, Juvenile Homes,  special homes, observation homes and aftercare organisations. Chapter III  makes provision for neglected juveniles. Section 17 makes provision for  uncontrollable juveniles. Chapter IV deals with delinquent juveniles.  Sections 18 to 26 provide for bail and custody of juveniles, accused of a  bailable or non-bailable offence, the manner of dealing with them and the  orders that may be passed regarding or against delinquent juveniles.  Proceedings as laid down  in Chapter VIII of the Code of Criminal  Procedure are not competent against a juvenile. A juvenile and a person who  is  not a juvenile cannot be jointly tried. No disqualification attaches to  conviction of a juvenile for any offence under any law. Special provisions  are contained in Section 26 as regard the proceedings in respect of juveniles  pending in any court on the date of the coming into force of the Act. Chapter  V (Sections 27 to 40) lay down the procedure of competent authorities  generally under the Act and appeals and revisions from orders of such  authorities. Chapter VI (Sections 41 to 45) provides for special offences in  respect of juveniles. Chapter VII (Sections 46 to 63) contains miscellaneous  provisions.          Section 32 of the 1986 Act mandates the competent authority to hold  enquiry as to the age of the delinquent brought before it.

       The 1986 Act has been repealed and replaced by the 2000 Act.   

       The 2000 Act has brought about certain changes vis-‘-vis the 1986  Act.  It has obliterated the distinction between a male juvenile and female  juvenile.  In contrast with the definition of delinquent juvenile in the 1986  Act who was found guilty of commission of an offence, a juvenile in conflict  with law is defined in the 2000 Act to mean a person who is of below 18  years of age and is alleged to have committed an offence. Section 3 provides  for continuation of inquiry in respect of juvenile who has ceased to be a  juvenile.

       By reason of the aforementioned provisions  a legal fiction has been  created to treat a juvenile who has ceased to be a juvenile as a person as if he  had continued to be a juvenile.  Chapter II provides for constitution of a  Juvenile Justice Board.  Its power had been outlined in Section 6.  Section 7  mandates that a Magistrate before whom a juvenile is produced must without  any delay record his opinion,  and if it is found that a person brought before  him is a juvenile, he shall record the same and forward him with the record  of the proceeding to the competent authority having jurisdiction over the  proceeding.  Sections 8 and 9 provide for observation homes and special  homes.  Section 10 provides that on apprehension of a juvenile in conflict  with law; he shall be placed under the charge of a special juvenile police unit  or the designated police officer who shall immediately report the matter to a  member of the Board.  Section 12 provides for bail.  In no circumstances, a  person who appears to be juvenile is to be placed in a police lock-up.  He is  to be kept in an observation home in the prescribed manner until he can be  brought before the court.  Sub-section (3) of Section 12 mandates the Board  to make an order sending a juvenile to the observation home instead of  committing him to prison.  Section 14 provides for holding of an inquiry by  the Board regarding a juvenile within a period of four months.  Section 15  provides for an order that may be passed regarding juvenile, clause (g) of  sub-section (1) whereof reads, thus:

"15. Order that may be passed regarding juvenile \026 (1)  Where a Board is satisfied on inquiry that a juvenile has  committed an offence, then, notwithstanding anything to  the contrary contained in any other law for the time being  in force, the Board may, if it thinks so fit, -

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(g) make an order directing the juvenile to be sent to a  special home \026  

(i)     in the case of juvenile, over seventeen years but  less than eighteen years of age for a period of not less  than two years;

(ii)    in case of any other juvenile for the period until he  ceases to be a juvenile:

Provided that the Board may, if it is satisfied that having  regard to the nature of the offence and the circumstances  of the case it is expedient so to do, for reasons to be  recorded, reduce the period of stay to such period as it  thinks fit."

       Section 16 mandates that no juvenile shall be sentenced to death or  life imprisonment or committed to prison in default of payment of fine or in  default of furnishing security.  Sections 20 and 64 which are relevant for our  purpose read as under:

"20. Special provision in respect of pending cases \026  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 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.

64. Juveniles in conflict with law undergoing sentence at  commencement of this Act \026 In any area in which this  Act is brought into force, the State Government or the  local authority may direct that a juvenile in conflict with  law who is undergoing any sentence of imprisonment at  the commencement of this Act, shall, in lieu of  undergoing such sentence, be sent to a special home or be  kept in fit institution in such manner as the State  Government or the local authority thinks fit for the  remainder of the period of the sentence; and the  provisions of this Act shall apply to the juvenile as if he  had been ordered by the Board to be sent to such special  home or institution or, as the case may be, ordered to be  kept under protective care under sub-section (2) of  section 16 of this Act."

       Sections 4 to 28 occur in Chapter II which deal with juvenile in  conflict with law and Section 64 occurs in Chapter V dealing with  miscellaneous provisions.  It is interesting to note that all the provisions  occurring in Chapter II or Section 20 do not use the expression juvenile in  conflict with law whereas Section 64 specifically uses that expression.   

Section 20 of the Act permits continuation of proceedings of a  juvenile court in any area on the date on which the Act came into force by  providing "it shall record such finding and instead of passing any sentence in  respect of that juvenile, shall forward him to the board which shall pass  orders in respect of that juvenile in accordance with the provision of this Act  as if it has been satisfied on inquiry under this Act that juvenile had  committed the offence".

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       Section 68 provides for rule making power of the State Government.   No State unfortunately has framed any rule in exercise thereof.  The Central  Government, however, in purported exercise of its power under Section 70  of the Act published the principles which are fundamental to the  development of strategies, interpretation and implementation of the Act of  2000 and the model rules which the State Governments are required to  frame.  Rule 61of the said Model Rule  is  as under:

"61. Temporary application of model rules \026 It is hereby  declared that until the new rules are framed by the State  Government concerned under section 68 of the Act, these  rules shall mutatis mutandis apply in that State."

       Rule 62 deals with pending cases and sub-rule (3) thereof reads as  under: "\005It is hereby clarified that such benefits shall be made  available not only to those accused, who was juvenile or  a child at the time of commission of an offence but also  to those who ceased to be a juvenile or a child during the  pendency of any enquiry of trial."  

The legislation relating to juvenile justice should be construed as a   step for resolution of the problem of the juvenile justice which was one of  tragic human interest which cuts across national boundaries.  The said Act  has not only to be read in terms of the Rules but also the Universal  Declaration of Human Rights and the United Nations Standard Minimum  Rules for the protection of juveniles.

INTERNATIONAL LAW :          The Juvenile Justice Act specially refers to international law.  The  relevant provisions of the Rules are incorporated therein. The international  treatises, covenants and conventions  although may not be a part of our  municipal law, the same can be referred to and followed by the courts  having regard to the fact that India is a party to the said treatises.  A right to  a speedy trial is not a new right.  It is embedded in our Constitution in terms  of Articles 14 and 21 thereof.  The international treaties recognize the same.   It is now trite that any violation of human rights would be looked down  upon.  Some provisions of the international law although may not be a part  of our municipal law but the courts are not hesitant in referring thereto so as  to find new rights in the context of the Constitution.  Constitution of India  and other ongoing statutes have been read consistently with the rules of  international law.  Constitution is a source of, and not an exercise of,  legislative power.  The principles of International Law whenever applicable  operate as a statutory implication but the Legislature in the instant case held  itself bound thereby and, thus, did not legislate in disregard of the  constitutional provisions or the international law as also in the context of  Articles 20 and 21 of the Constitution of India.  The law has to be  understood, therefore, in accordance with the international law.  Part III of  our Constitution protects substantive as well as procedural rights.   Implications which arise therefrom must effectively be protected by the  judiciary.  A contextual meaning to the statute is required to be assigned  having regard to the Constitutional as well as International Law operating in  the field.           [See Liverpool & London S.P. & I Association Ltd. vs M.V. Sea  Success I & Another (2004) 9 SCC 512]

       In Regina (Daly) Vs. Secretary of State for the Home Department  [2001] 2 AC 532, Lord Stein observed that in the law context is everything  in the following terms:

"28. The differences in approach between the traditional  grounds of review and the proportionality approach may

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therefore sometimes yield different results.  It is therefore  important that cases involving Convnetion rights must be  analysed in the correct way.  This does not mean that  there has been a shift to merits review.  On the contrary,  as Professor Jowell [2000] PL 671, 681 has pointed out  the respective roles of judges and administrators are  fundamentally distinct and will remain so.  To this extent  the general tenor of the observations in Mahmood [2001]  1 WLR 840 are correct.  And Laws LJ rightly  emphasized in Mahmood, at p 847, para 18, "that the  intensity of review in a public law case will depend on  the subject matter in hand".  That is so even in cases  involving Convention rights.  In law context is  everything."

       Constitution of India and the Juvenile Justice Legislations must  necessarily be understood in the context of present days scenario and having  regard to the international treaties and conventions. Our Constitution takes  note of the institutions of the world community which had been created.   Some legal instruments that have declared the human rights and fundamental  freedoms of humanity had been adopted but over the time even new rights  had been found in several countries, as for example, South Africa (S. Vs.  Makwanyane 1995 (3) SA 391), Canada (Reference re Public Service  Employee Relations Act (Alberta) [1987] 1 SCR 313 at 348), Germany  (Presumption of Innocence and the European Convention on Human Rights  (1987) BverfGE 74, 358), New Zealand (Tavita Vs. Minister of  Immigration, [1994] 2 NZLR 257 at 266), United Kingdom (Pratt Vs.  Attorney-General for Jamaica [1994] 2 AC 1) and United States (Atkins Vs.  Virginia, (2002) 536 US 304 and Lawrence Vs. Texas (2003) 539 US 558).   New ideas had occupied the human mind as regard protection of Human  Rights.  (See Hamdi Vs. Rumsfeld, (2004) 72 USLW 4607, Russel Vs. Bush  (2004) 72 USLW 4596 and Rumsfield Vs. Padila (2004) 72 USLW 4584).  

       Now, the Constitution speaks not only "to the people of India who  made it and accepted it for their governance but also to the international  community as the basic law of the Indian nation which is a member of that  community".  Inevitably, its meaning is influenced by the legal context in  which it must operate.

       The legal instruments that have declared legal rights and fundamental  freedoms, founded in the nations of human dignity and Charter of United  Nations were not known earlier which is manifest today. [Charter of the  United Nations, signed at San Fransisco on 26.6.1945. Preamble].  Political,  social and economic development can throw light on the meaning of  Constitution.

       In Lawrence (supra), Kennedy J., for the Supreme Court, after  references to international human rights law, concluded:

"Had those who drew and ratified the Due Process  Clauses of the Fifth Amendment or the Fourteenth  Amendment known the components of liberty in its  manifold possibilities, they might have been more  specific.  They did not presume of have this insight.   They knew times can blind us to certain truths and later  generations can see that laws once thought necessary and  proper in fact serve only to oppress.  As the Constitution  endures, persons in every generation can invoke its  principles in their own search for greater freedom."          

       The questions, therefore, in our opinion, should be determined having  regard to the aforementioned principles.

EXPEDITIOUS PROCEEDINGS :

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In terms of Rule 20.1 of the Rules we may notice that some statutes,  as for example, the Family Court Act of some States of U.S.A. contains  provisions establishing time limitations governing each stage of juvenile  proceedings, the purpose whereof  is to assure swift and certain adjudication  at all phases of the proceeding.  (See In re Frank C., 70 N.Y.2d 408)

       A similar issue was examined by the Supreme Court of California in  Alfredo Vs. Superior Court, 849 P.2d 1330 (Cal. 1993) wherein a juvenile  sought habeus corpus to obtain release.  The court held that the Fourth  Amendment provides the authority for the promptness required for a  juvenile hearing.  It was further held that a minor must be released upon  expiration of the statutory time limit for detention due to the juvenile’s  interest in freedom from institutional restrains.  The court implied that the  time allowed to have the hearing shall stand extended once the juvenile is  released, and that dismissal is not the only necessary remedy.           In Robinson Vs. Texas, 707 S.W.2d 47, the Texas Court of Appeals  held that in calculating the time for a speedy trial continuances should not be  included.  In that case, the court found that continuances based on reset  forms signed by appellant’s attorney were excludable from the statutory time  limits for a speedy trial.

       In Illinois Vs. Stufflebean, 392 N.E. 2d 414, the Appellate Court of  Illinois held that the remedy for detention of a juvenile beyond the statutory  limit was immediate release, not dismissal.  In Stufflebean, the court denied  a probationer’s request for dismissal based on incarceration exceeding  statutory limits.

QUESTIONS :      The questions which arise for consideration in this reference are: (i)     What would be reckoning date in determining the age of offender,  viz., date when produced in a Court, as has been held by this Court  in Arnit Das Vs. State of Bihar [(2000) 5 SCC 488] or the date on  which the offence was committed as has been held in Umesh  Chandra Vs. State of Rajasthan [(1982) 2 SCC 202]. (ii)    Whether the 2000 Act will be applicable in cases which were  pending before the enforcement thereof.

RE.: QUESTION NO. 1 :         We have noticed hereinbefore that the decisions in Umesh Chandra  (supra) and Arnit Das (supra) are in conflict with each other.  Whereas  in  Umesh Chandra (supra), a clear finding has  been recorded by this Court that  the relevant date for applicability of the Act is the date on which the offence  takes place;  in Arnit Das (supra), Lahoti, J. (as the learned Chief Justice  then was) speaking for a Division Bench held that  Section 8(a) of the Act  and the Scheme as also the phraseology employed by the Parliament in  drafting the Act suggests that the relevant date for finding out the age of  juvenile is the date when he is produced before the Board.  It was observed  that indisputably the definition of juvenile or any other provisions contained  in the Act does not specifically provide the date for reference to which a  crime has to be determined so as to find out whether he is or she is a juvenile  or not.

       In support of the view taken in Arnit Das (supra), the learned  Additional Solicitor General appearing for the Respondent submitted that the  Act aims at protection of a juvenile in the sense that he is to be kept in the  protective custody and dealt with separately by not sending him to prison or  police lock-up which is possible to be directed only when a juvenile is  arrested or  produced in court and not prior thereto.  Similarly, on  conviction, he cannot be sentenced and may be directed to be housed in a  protective home and, thus,  the relevant date would be the one on which the  delinquent juvenile is produced before the Board..

       This argument cannot be accepted for more than one reason.  The said

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Act is not only a beneficient legislation, but  also a remedial one.  The Act  aims at grant of care, protection and rehabilitation of a juvenile vis-‘-vis the  adult criminals.  Having regard to Rule 4 of United Nations Standard  Minimum Rules for the Administration of Juvenile Justice, it must also be  borne in mind that the moral and psychological components of  criminal  responsibility was also one of the factors in defining a juvenile. The first  objective, therefore, is the promotion of the well-being of the juvenile and  the second objective bring about the principle of proportionality whereby  and whereunder the proportionality of the reaction to the circumstances of  both the offender and the offence including the victim should be  safeguarded.  In essence, Rule 5 calls for no less and no more than a fair  reaction in any given case of juvenile delinquency and crime. The meaning  of the expression ’Juvenile’ used in a statute by reason of its very nature has  to be assigned with reference to a definite date.  The term ’Juvenile’ must be  given a definite connotation.  A person cannot be a juvenile for one purpose  and an adult for other purpose.   It was, having regard to the constitutional  and statutory scheme, not necessary for the Parliament to specifically state  that the age of juvenile must be determined as on the date of commission of  the offence.  The same is in-built in the statutory scheme.  The statute must  be construed having regard to the Scheme and the ordinary state of affairs  and consequences flowing therefrom.  The modern approach is to consider  whether a child can live up to the moral and psychological components of  criminal responsibility, that is, whether a child, by virtue of his or her  individual discernment and understanding can be held responsible for  essentially anti-social behaviour.

In construing a penal statute, the object of the law must be clearly  borne in mind.   The importance of  time-bound investigation and a trial in  relation to an offence allegedly committed by a juvenile is explicit as has  been dealt with in some details hereinbefore.  While making investigation it  is expected that the accused would be arrested forthwith.  He, upon his  arrest; if he appears to be a juvenile, cannot be kept in police custody and  may be released on bail.  If he is not released on bail by the arresting  authority, he has to be produced before the competent Court or Board.  Once  he appears to be juvenile, the competent court and/ or board may pass an  appropriate order upon releasing him for bail or send him to a protective  custody.  An inquiry for the purpose of determination of age of the juvenile   need not be resorted to if the person produced is admitted to be a juvenile.    An inquiry would be necessary only if a dispute is raised in that behalf.   A  decision thence is required to be taken by the competent court and /or board  having regard to the status of the accused as to whether he is to be released  on bail or sent to a  protective custody or remanded to police or judicial  custody.  For the said purpose  what is  necessary would be to find out as to  whether on the date of commission of the offence he was a juvenile or not as  otherwise the purpose for which the Act was enacted would be defeated.   The provisions of the said Act, as indicated hereinbefore, clearly postulate  that the necessary steps in the proceedings are required to be taken not only  for the purpose of adopting a special procedure at the initial stage but also  for the intermediary and final stage of the proceedings.   If the person  concerned is a juvenile, he cannot be tried along with other adult accused.   His trial must be held by the Board separately. Having regard to Rule 20.1 of  the Rules his case is required to be determined, without any unnecessary  delay.  In the trial, the right of the juvenile as regard his privacy must be  protected.  He is entitled to be represented by a legal adviser and for free  legal aid, if he applies therefor.  His parents and/or guardian are also entitled  to participate in the proceedings.  The Court would be entitled to take into  consideration the Social Inquiry Reports wherein the background and the  circumstances in which the juvenile was living and the condition in which  the offence had been created may be properly investigated so as to facilitate  juvenile adjudication of the case by the competent authority.  At all stages,  the Court/Board is required to pass an appropriate order expeditiously.   Right of a juvenile to get his case disposed of expeditiously is a statutory as  also a constitutional right.   

       Even at the final stage, viz., after he is found to be guilty of

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commission of an offence, he must be dealt with differently vis-a-vis adult  prisoners.  Only because his age is to be determined in a case of dispute by  the competent court or the board in terms of Section 26 of the Act, the same  would not mean that the relevant date therefor would be the one on which he  is produced before the Board.  If such an argument is accepted, the same  would result in absurdity as, in a given case,  it would be open to the police  authorities not to produce him before the Board before he ceases to be  juvenile.  If he is produced after he ceases to be juvenile, it may not be  necessary for the Board to send him in the protective custody or release him  on bail as a result whereof he would be sent to the judicial or  police custody  which would defeat the very purpose for which the Act had been enacted.   Law cannot be applied in an uncertain position.  Furthermore, the right to  have a fair trial strictly in terms of the Act which would include procedural  safeguard is a fundamental right of the juvenile.  A proceeding against a  juvenile must conform to the provisions of the Act.

       In Dilip Saha Vs. State of West Bengal [AIR 1978 Calcutta 529] a  Full Bench of the Calcutta High Court in arriving at the conclusion that the  date of reckoning shall be the one on which the offence has been committed  referred to Article 20 of Constitution of India in the following terms:

"22. If we interpret S. 28 to mean that it prohibits a joint  trial of a child and an adult only when the child is a  ’child’ at the time of trial, that interpretation would go  against the provisions of Art. 20(1) of the Constitution  which prescribes that no person shall be convicted of any  offence except for violation of a law in force at the time  of the commission of the act charged as an offence nor be  subjected to a penalty greater than that which might have  been inflicted under the law in force at the time of the  commission of the offence."

       We, with respect,  agree with the said observation.

        The statute, it is well known, must be construed in such a manner so  as to make it effective and operative on the principle of Ut res magis valeat  quam pereat.  The courts lean strongly against any constructions which tend  to reduce a statute to a futility.  When two meanings, one making the statute  absolutely vague, wholly intractable and absolutely meaningless and the  other leading to certainty and meaningful are given, in such an event the  latter should be followed.  [See  Tinsukhia Electric Supply Co. Ltd. vs. State  of Assam and Others (1989) 3 SCC 709 [See Andhra Bank vs. B.  Satyanarayana and Others \026 (2004) 2 SCC 657] and Indian Handicrafts  Emporium and Others vs. Union of India and Others \026 (2003) 7 SCC 589].

       The submission of the learned Addl. Solicitor General that this Court  in Umesh Chandra (supra) has wrongly applied the test of imputing mens rea  in holding that Children Act was enacted to protect young children from the  consequences of their criminal acts on the footing that their mind at that age  cannot be said to be mature as in the case of adult, may have some substance  but the said statement of law must be read and understood in the context of  Rule 4.1 of the Rules.  So read, the Act would be understood in its proper  perspective.

       The question raised in paragraph 17 of Arnit Das (supra) is not  apposite.  A hypothetical question would only lead to a hypothetical answer.   The court in an appropriate case is not powerless to pass an order as is  contemplated under the statute if the situation so demands but only because  a person is produced before the Court after he attains majority either on his  own volition or by reason of machinations adopted by the investigating  agency, the same would not be determinative of the fact that the said person  is to be differently dealt with.  Law favours strict adherence of the  procedures subject to just exceptions.  The Court in Arnit Das (supra)  observed:

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"16\005The Preamble speaks for the Act making  provisions for the things post-delinquency. Several  expressions employed in the Statement of Objects and  Reasons vocally support this view. The Act aims at  laying down a uniform juvenile justice system in the  country avoiding lodging in jail or police lock-up of the  child; and providing for prevention and treatment of  juvenile delinquency, for care, protection, etc. post- juvenility. In short the field sought to be covered by the  Act is not the one which had led to juvenile delinquency  but the field when a juvenile having committed a  delinquency is placed for being taken care of post- delinquency."

       With great respect, we cannot agree to the said statement of law.  It is  incorrect to say that the preamble speaks of the things of post-delinquency  only.  The Act not only refers to the obligations of the country to re-enact  the existing law relating to juveniles bearing in the mind, the standards  prescribed in  various conventions but also all other international  instruments.  It states that the said Act was enacted inter alia to consolidate  and amend the law relating to juveniles.  Once the law relates to delinquent  juveniles or juveniles in conflict with law, the same would mean both pre  and post-delinquency.

The definition of ’Juvenile’ under the 1986 Act, of course refers to a  person who has been found to have committed offence but the same has  been clarified in the 2000 Act.  The provisions of 1986 Act, as noticed  hereinbefore, sought to protect not only those juveniles who have been  found to have committed an offence but also those who had been charged  therefor.  In terms of Section 3 of the 1986 Act as well as 2000 Act when an  enquiry has been initiated even if the juvenile has ceased to be so as he has  crossed the age of 16 and 18 as the case may be, the same must be continued  in respect of such person as if he had continued to be a juvenile.  Section 3  of the 1986 Act therefore cannot  be given effect to if it is held that the same  only applied to post delinquency of the juvenile.            The field covered by the Act  includes a situation leading to juvenile  delinquency vis-‘-vis commission of an offence.   In such an event he is to  be provided the post delinquency care and for the said purpose the date when  delinquency took place would be the relevant date.  It must, therefore, be  held that the relevant date for determining the age of the juvenile would be  one on which the offence has been committed and not when  he is produced  in court.  

RE: QUESTION NO.2 :

       The salient features of the Act of 2000 may be noticed at the outset.

       Section 1(3) of  the Act of 2000 states that it would come into force  on such date as the Central Government may, by notification in the Official  Gazette, appoint.  The Central Government had issued an appropriate  notification in terms whereof; 1.4.2001 has been specified as the ’appointed  date’ from which the provisions of the said Act will come into force.  The  Act, thus, is prospective in its operation.  However, the Act of 2000 has  repealed the Act of 1986.  It has obliterated the distinction between juvenile  of different sex by reason whereof, a male juvenile would also be juvenile if  he has not crossed the age of 18.   

       A person above 16 years in terms of the 1986 Act was not a juvenile.   In that view of the matter the question whether a person above 16 years  becomes ’juvenile’ within the purview of the Act of 2000  must be answered  having regard to the object and purport thereof .   

       In terms of the 1986 Act, a person who was not juvenile could be tried

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in any court.  Section 20 of the Act of 2000 takes care of such a situation  stating that despite the same the trial shall continue in that court as if that  Act has not been passed and in the event, he is found to be guilty of  commission of an offence, a finding to that effect shall be recorded in the  judgment of  conviction, if any, but instead of passing any sentence in  relation to the juvenile, he would be forwarded to the Board which shall pass  orders in accordance with the provisions of the Act as if he has been  satisfied on inquiry that a juvenile has committed the offence.  A legal  fiction has, thus, been created in the said provision.  A legal fiction as is  well-known must be given its full effect although it has its limitations. [See  Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and Others [(2003) 2  SCC 111] ITW Signode India Ltd. vs. Collector of Central Excise - 2003 (9)  SCALE 720 and See Ashok Leyland Ltd. Vs. State of Tamil Nadu & Anr.,  (2004) 3 SCC 1]

       The effect of the expression "as if"  has recently been considered in  M/s Maruti Udyog Ltd. vs Ram Lal (C.A. No.2946 of 2002 disposed of on  25.1.2005)

       Thus,  by reason of legal fiction, a person, although not a juvenile, has  to be treated to be one  by the Board for the purpose of sentencing which  takes care of a situation that the person although  not  a juvenile in terms of  the 1986 Act but still  would be treated as such under the 2000 Act for the  said limited purpose.  The Act provides for a beneficent consequences and,  thus, it is required to be construed liberally.   

       We are not oblivious of the proposition that a beneficent  legislation  should not be construed so liberally so as to bring within its fore a person  who does not answer the statutory scheme.  [See Deepal Girishbhai Soni and  Others Vs. United India Insurance Co. Ltd. Baroda, (2004) 5 SCC 385].

       However, as would appear from the provisions of the Act of 2000 that  the Scheme of the 2000 Act is such that such a construction is possible.  The  same would also be evident from Section 64 which deals with a case where a  person has been undergoing a sentence but if he is a juvenile within the  meaning of the 2000 Act having not crossed the age of 18,  the provisions  thereof would apply as if he had been ordered by the Board to be sent to a  special home or the institution, as the case may be.

       Section 20 of the Act of 2000 would, therefore, be applicable when a  person is below the age of 18 years as on 1.4.2001.  For the purpose  of  attracting Section 20 of the Act, it must 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. For the  purpose of the said Act, both the aforementioned conditions are required to  be fulfilled.  By reason of the provisions of the said Act of 2000, the  protection granted to a juvenile has only been extended  but such extension  is not absolute but only  a limited one.  It would apply strictly when the  conditions precedent therefor as contained in Section 20 or Section 64 are  fulfilled.  The said provisions repeatedly refer to the words ’juvenile’ or  ’delinquent juveniles’ specifically.  This appears to be the object of the Act  and for ascertaining the true intent of the Parliament, the rule of purposive  construction must be adopted.  The purpose of the Act would stand defeated  if a child continues to be in the company of an adult.  Thus, the Act of 2000  intends to give the protection only to a juvenile within the meaning of the  said Act and not  an adult.  In other words, although it would apply to  a  person who is still a juvenile having not attained the age of 18 years but shall  not apply to a person who has already attained the age of 18 years on the  date of coming into force thereof or who had not attained the age of 18 years  on the date of commission of the offence but has since ceased to be a  juvenile.          The embargo of giving a retrospective effect to a statute arises only  when it takes away  vested right of a person.  By reasons of Section 20 of the  Act no vested right in a person has been taken away, but thereby only an  additional protection has been provided to a juvenile.

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         In Rattan Lal Vs. State of Punjab [(1964) 7 SCR 676], this Court has  held: "\005Under Art. 20 of the Constitution, no person shall be  convicted of any offence except for violation of a law in  force at the time of the commission of the act charged as  an offence, nor be subjected to a penalty greater than that  which might have been inflicted under the law in force at  the time of the commission of the offence. But an ex post  facto law which only mollifies the rigour of a criminal  law does not fall within the said prohibition. If a  particular law makes a provision to that effect, though  retrospective in operation, it will be valid. The question  whether such a law is retrospective and if so, to what  extent depends upon the interpretation of a particular  statute, having regard to the well settled rules of  construction\005."

       Referring to Maxwell on Interpretation of Statutes, Subba Rao, J.(as  His Lordship then was) opined:

"\005This is not a case where an act, which was not an  offence before the Act, is made an offence under the Act;  nor is this a case where under the Act a punishment  higher than that obtaining for an offence before the Act is  imposed. This is an instance where neither the  ingredients of the offence nor the limits of the sentence  are disturbed, but a provision is made to help the  reformation of an accused through the agency of the  court. Even so the statute affects an offence committed  before it was extended to the area in question. It is,  therefore, a post facto law and has retrospective  operation. In considering the scope of such a provision  we must adopt the rule of beneficial construction as  enunciated by the modern trend of judicial opinion  without doing violence to the provisions of the relevant  section\005."

       Yet again in Basheer alias N.P. Basheer vs. State of Kerala [(2004) 3  SCC 609], this Court held :

"If the Act had contained any provisions to the detriment  of the accused, then undoubtedly, it would have been hit  by the rule against post facto legislation contained in  Article 20(1).  However, we find that the amendments (at  least the ones rationalizing the sentencing structure) are  more beneficial to the accused and amount to  mollification of the rigour of the law.  Consequently,  despite retrospectivity, they ought to be applied to the  cases pending before the Court or even to cases pending  investigation on the date on which the amending Act  came into force.  Such application would not be hit by  Article 20(1) of the Constitution."                  

       Section 6(1) and Section 8 of the Human Rights Act, 1998 of United  Kingdom also  provide for expeditious disposal of cases.  The effect of non- fulfillment of requirement that the a criminal charge be heard within a  reasonable time came up for consideration recently before the House of  Lords in Attorney General’s Reference (No.2 of 2001) [(2004) 2 AC 72)  wherein it was held that the remedy as regard breach of reasonable time  guarantee would depend upon the fact involved in each case.  While holding  such a right exists in an accused, it was observed :

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"This reasoning depends, as I have said, on categorizing  the within a reasonable time obligation as referring to a  characteristic of the hearing or determination just as are  the fair,, "public", "independent", "impartial" and  "tribunal established by law" requirements. It is this  categorization which I suggest is fundamentally wrong.   A within a reasonable time obligation relates to a  quality of the performance, not to the attributes of the  service or article \026 here the hearing or determination \026  to be provided by the person under the obligation.  This  may all sound over-sophisticated but it can be simply  demonstrated both as a matter of the ordinary use of  language and by reference to basic principles of the law  of obligations."

       In India such a right of expeditious disposal is contained in Article 21  of the Constitution, the relevance whereof for the purpose of interpretation  of the Act cannot be minimized.

       In Zile Singh vs. State of Haryana & Ors. [JT 2004 (8) SC 589],  Lahoti, CJ, opined  that rule against retrospectivity cannot be applied to  legislations which are explanatory and declaranatory in nature.  [See also R.  (on the application of Uttley) vs. Secretary of State for the Home  Department  - (2004) 4 All ER 1]         Yet again in Dayal Singh vs. State of Rajasthan [JT 2004 (Supp.1) SC  37], this  Court upon referring Rattan Lal (supra)  held :

"11. The decision approves of the principle that ex post  facto law which only mollifies the rigour of the criminal  law, though retrospective in operation, will be valid.   After enunciating this principle the court interpreted  section 11 of the Probation of Offenders Act and came to  the conclusion that on a true interpretation of the  provision the High Court had jurisdiction to exercise the  power at the appellate stage, and this power was not  confined to a case where the trial court could have made  that order.  The phraseology of the section was wide  enough to enable the appellate court or the High Court  when the case came before it, to make such an order.   We, therefore, do not find that Rattan Lal made a  departure from the well settled principle that no person  shall be convicted of any offence except for violation of a  law in force at the time of the commission of that act  charged as an offence, nor be subjected to a penalty  greater than with which he might have been inflicted  under the law in force at the time of the commission of  the offence.  This Court only laid down the principle that  an ex post facto law which only mollifies the rigour of a  criminal law did not fall within the said prohibition, and  if a particular law made a provision to that effect, though  retrospective in operation, it will be valid\005"    

       Interpretation of a statute depends upon the text and context thereof  and having regard and object with which the same was made.  

       The aforementioned provision of the 2000 Act is furthermore a  remedial statute.  (See discussions of G.P. Singh’s Principles of Statutory  Interpretation, Ninth Edition, 2004, page 733)  They are, thus, required  to  be given liberal construction.   

       A remedial statute applied in a pending proceeding would not mean  that thereby a retrospective effect and retroactive operation is being given

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thereto.   

       We do not intend to say that no other view is possible.  But in a case  of this nature where an additional protection had been granted pursuant to or  in furtherance of the international treaties and keeping in view of the  experience which had been gathered by the Parliament after coming into  force of the 1986 Act, we think that it should be read in such a fashion so  that the extended benefit can be granted even to the juvenile under the 2000  Act. Furthermore, sub-section (2) of Section 69 provides that all proceedings  shall be deemed to have been held under the new Act.  This is also  suggestive of the fact that the new Act would, to the aforementioned extent,  apply to a pending proceeding which was initiated under the 1986 Act.   

MODEL RULES : We, however, do not agree that the model rules have been framed in  terms of the provisions of the Act so as to attract the principles  that rules  validly  framed   are  to  be  treated  as  part  of  the  Act.  It  is  one thing  that the rules validly framed are to be treated as part of the Act as has been  held in Chief Forest Conservator (Wildlife) and Others Vs. Nisar Khan  [(2003) 4 SCC 595] and National Insurance Co. Ltd. Vs. Swaran Singh and  Others [(2004) 3 SCC 297] but the said principle has no application herein  as in terms of the provisions of the said Act, the Central Government does  not have any authority to make any rules.  In absence of any rule making  power it cannot refer to the omnibus clause of power to remove difficulty  inasmuch as it has not been stated that framing of any model rule is  permissible if a difficulty arises in giving effect to the provision of the Act.   The Central Government is a statutory functionary.  Its functions are  circumscribed by Section 70 of the Act only.  It has not been authorized to  make any rule.  Such rule making power has been entrusted only to the  State.  The Central Government has, thus, no say in the matter nor can it  exercise such power by resorting to its power ’to remove  difficulties’.  Rule  making power is a separate power which has got nothing to do with the  power to remove difficulty.  By reason of the power to remove difficulty or  doubt, the Central Government has not been conferred with any legislative  power.  The power to remove doubt or difficulty although is a statutory  power but the same is not akin to a legislative power and, thus, thereby the  provisions of the Act cannot be altered. [See M/s Jalan Trading Co. Private  Ltd. vs. Mill Mazdoor Sabha \026 AIR 1967 SC 691 at 703]

       The age of the delinquent juvenile, therefore, cannot be determined in  terms of the model rules 62.  Any law mandating the court to take into  consideration certain documents over others in determining an issue, must be  provided for only by  law.  Only a validly made law can take away the  power of the court to appreciate evidence for the purpose of determination of  such a question in the light of Section 35 of the Indian Evidence Act.  It  cannot be done by the Central Government in exercise of the executive  power.  (See Union of India Vs. Naveen Jindal, (2004) 2 SCC 510 and State  of U.P. Vs. Johri Mal, (2004) 4 SCC 714)

In Birad Mal Singhvi vs. Anand Purohit [AIR 1988 SC 1796] , this  Court held : "...To render a document admissible under Section 35,  three conditions must be satisfied, firstly, entry that is  relied on must be one in a public or other official book,  register or record, secondly, it must be an entry stating a  fact in issue or relevant fact, and thirdly, it must be made  by a public servant in discharge of his official duty, or  any other person in performance of a duty specially  enjoined by law.  An entry relating to date of birth made  in the school register is relevant and admissible under  Section 35 of the Act but the entry regarding to the age of  a person in a school register is of not much evidentiary  value to prove the age of the person in the absence of  material on which the age was recorded..."

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       In Sushil Kumar vs. Rakesh Kumar [(2003) 8 SCC 673], this Court as  regard determination of age of a candidate in terms of Section 36(2) of the  Representation of the People Act, 1951 observed :    

"32.  The age of a person in an election petition has to be  determined not only on the basis of the materials placed  on record but also upon taking into consideration the  circumstances attending thereto.  The initial burden to  prove the allegations made in the election petition  although was upon the election petitioner but for proving  the facts which were within the special knowledge of the  respondent, the burden was upon him in terms of Section  106 of the Evidence Act.  It is also trite that when both  parties have adduced evidence the question of the onus of  proof becomes academic [See Union of India vs. Sugauli  Sugar Works (P) Ltd. [(1976) 3 SCC 32] and Cox  and  Kings (Agents) Ltd. vs. Workmen [(1977) 2 SCC 705].   Furthermore, an admission on the part of a party  to the  lis shall be binding on him and in any event a  presumption must be made that the same is taken to be  established."    

       This Court therein followed, inter alia, Birad Mal Singhvi vs. Anand  Purohit [AIR 1988 SC 1796] and several other decisions.  

       The Court, therefore, must determine the age of the appellant herein  keeping in view our aforementioned findings that the relevant date for  reckoning the age of the juvenile would be the date of occurrence and not  the date on which he was produced before the Board.  

       The upshot of the aforementioned discussions is :

       (i)     In terms of the 1986 Act, the age of the offender must be  reckoned from the date when the alleged offence was committed;         (ii)    The 2002 Act will have a limited application in the cases  pending under the 1986 Act;         (iii)   The model rules framed by the Central Government having no  legal force  cannot be given effect to.         (iv)    The court, thus, would be entitled to apply the ordinary rules of  evidence for the purpose of determining the age of the juvenile taking into  consideration the provisions of Section 35 of the Indian Evidence Act.

       Subject to the aforementioned, I, with respect, agree with the  conclusions arrived at by Brother Sema, J.