http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (crl.)  295 of 2008

PETITIONER: Balu @ Bakthvatchalu

RESPONDENT: State of Tamilnadu

DATE OF JUDGMENT: 12/02/2008

BENCH: S.B. SINHA & V.S. SIRPURKAR

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 295 OF 2008 (Arising out of SLP (Crl.) No. 4905 of 2007)

S.B. SINHA, J.

1.      Leave granted.

        2.      Appellant was prosecuted for commission of an offence under Section  302 of the India Penal Code.  The occurrence took place on 20th April, 1998.   He was arrested on the charge of murder of one Ramu Maistry on 8th May,  1998.  Upon completion of investigation a charge sheet was filed against  him on 30th November, 1998.  The learned trial court delivered a judgment  on 28th April, 2000.  In the said judgment his age was shown to be ’18’.   An  application was filed for sending him to Borstal School in terms of Section  10-A of the Tamil Nadu Borstal Schools Act, which was refused.  An appeal  preferred by the appellant before the High Court has been dismissed by  reason of the impugned judgment.         This Court issued a limited notice as to whether the appellant was a  juvenile on the date of occurrence of the incident. 3.      Mr. Mukherjee, the learned counsel appearing on behalf of the  appellant, submitted that in view of the materials placed on records, an  inquiry should have been initiated as regards the age of the appellant.  4.      The Juvenile Justice Act, 1986 (hereinafter referred to as "the Act"  was applicable when the incident took place,   In terms whereof, a juvenile,  under Section 2(h) was defined as a boy who has not attained the age of 16  years.  

5.      The Parliament, however, enacted, the Juvenile Justice (Care and  Protection of Children) Act, 2000.  It came into force with effect from 1st  April, 2001.  

6.      Section 2(k) defines ’juvenile’ to mean a person who has not  completed eighteen years of age.   7.      Section 20 of the Act reads as under :-          "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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

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."

8.      A question was raised as to whether the date on which the incident  took place or the date on which the accused was produced before the Court  would be the relevant date for computing the age of juvenile in view of the  decision of this Court in Arnit Das  vs.  State of Bihar : (2000) 5 SCC 488.   The correctness of the said  decision came up for consideration before a  Constitution Bench of this Court in Pratap Singh  vs. State of Jharkhand :  (2005) 3 SCC 551.  The Constitution Bench held;  "31 . Section 20 of the Act as quoted above deals with  the special provision in respect of pending cases and  begins with a non obstante clause. The sentence  "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 came into  force" has great significance. The proceedings in respect  of a juvenile pending in any court referred to in Section  20 of the Act are relatable to proceedings initiated before  the 2000 Act came into force and which are pending  when the 2000 Act came into force. The term "any court"  would include even ordinary criminal courts. If the  person was a "juvenile" under the 1986 Act the  proceedings would not be pending in criminal courts.  They would be pending in criminal courts only if the boy  had crossed 16 years or the girl had crossed 18 years.  This shows that Section 20 refers to cases where a person  had ceased to be a juvenile under the 1986 Act but had  not yet crossed the age of 18 years then the pending case  shall continue in that court as if the 2000 Act has 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,  shall forward the juvenile to the Board which shall pass  orders in respect of that juvenile. "

It concluded :-

"37 . The net result is:          \005.                   \005..                  \005..  ( b ) The 2000 Act would be applicable in a pending  proceeding in any court/authority initiated under the 1986  Act and 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 a separate judgment, one of us (S.B. Sinha, J.) stated :-  

"95. 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 were 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"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

specifically. This appears to be the object of the Act and  for ascertaining the true intent of 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."  

9.      Recently the Parliament has introduced Juvenile Justice (Care and  Protection of Children) Amendment Act, 2006 (which came into force with  effect from 23.8.2006), in terms whereof retrospective and restorative  meaning was given to the definition of ’juvenile’ stating :- ‘       "4.  In section 2 of the principal Act, -  (iv)    for clause (l), the following clause shall be  substituted, namely :-                 (l)  "juvenile in conflict with law" means a  juvenile who is alleged to have committed an  offence and has not completed eighteenth year of  age as on the date of commission of such offence;"       

10.     In view of the decision of the Constitution Bench of this Court as also  the amendments carried out by the Parliament, evidently the question as to  whether the appellant was aged ’18’ as on 1st April, 2001 requires  consideration.  12.     In a situation of this nature, where despite the possibility of a juvenile  having been tried and convicted for rigorous imprisonment for life by the  trial court or the High Court, this Court has in a large number of decisions  directed an enquiry to be made as regards the age of the juvenile.   13.     We shall refer to a few of them.   13.     In Gurpreet Singh   vs.  State of Punjab : (2005) 12 SCC 615 a Bench  of this Court opined :-  

"18.   Shri Prabha Shanker Misra, learned Senior Counsel  appearing in support of Criminal Appeal No. 710 of 1995  apart from challenging the conviction of the appellant  Mohinder Pal Singh on merits, which we have already  dealt with, submitted that on the date of the alleged  occurrence, he was a juvenile within the meaning of  Section 2( h ) of the Juvenile Justice Act, 1986  (hereinafter referred to as "the Act") as on that date he  had not attained the age of 16 years. It appears that this  point was not raised either before the trial court or the  High Court. But it is well settled that in such an  eventuality, this Court should first consider the legality or  otherwise of conviction of the accused and in case the  conviction is upheld, a report should be called for from  the trial court on the point as to whether the accused was  juvenile on the date of occurrence and upon receipt of the  report, if it is found that the accused was juvenile on such  date and continues to be so, he shall be sent to juvenile  home. But in case it finds that on the date of the  occurrence, he was juvenile but on the date this Court is  passing final order upon the report received from the trial  court, he no longer continues to be juvenile, the sentence  imposed against him would be liable to be set aside.  Reference in this connection may be made to a decision  of this Court in Bhoop Ram v. State of U.P. 7 in which  case at the time of grant of special leave to appeal, report  was called for from the trial court as to whether the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

accused was juvenile or not which reported that the  accused was not a juvenile on the date of the occurrence  but this Court, differing with the report of the trial court,  came to the conclusion that the accused was juvenile on  the date the offence was committed and as he was no  longer a juvenile on the day of judgment of this Court,  sentence awarded against him was set aside, though the  conviction was upheld. In the present case, we have  already upheld the conviction of the appellant Mohinder  Pal Singh as well but it would be just and expedient to  call for a report from the trial court in relation to his age  on the date of the occurrence."  

       It was directed :-

"20. In Criminal Appeal No. 710 of 1995 filed by  appellant Mohinder Pal Singh, call for a report from the  trial court as to whether on the date of occurrence this  appellant was juvenile within the meaning of Section  2(h) of the Juvenile Justice Act, 1986? The trial court  shall give opportunity to both the parties to adduce  evidence on this point. Let the entire original records of  the trial court be returned to it. Report as well as records  must be sent to this Court within a period of three months  from the receipt of this order. Upon receipt of report from  the trial court, final order shall be passed in this appeal."  

14.     In Ravinder Singh Gorkhi  vs. State of U.P : (2006) 5 SCC 584 this  Court held :-  "21. Determination of the date of birth of a person before  a court of law, whether in a civil proceeding or a criminal  proceeding, would depend upon the facts and  circumstances of each case. Such a date of birth has to be  determined on the basis of the materials on records. It  will be a matter of appreciation of evidence adduced by  the parties. Different standards having regard to the  provision of Section 35 of the Evidence Act cannot be  applied in a civil case or a criminal case.  It was furthermore held :-  

"38. The age of a person as recorded in the school  register or otherwise may be used for various purposes,  namely, for obtaining admission; for obtaining an  appointment; for contesting election; registration of  marriage; obtaining a separate unit under the ceiling  laws; and even for the purpose of litigating before a civil  forum e.g. necessity of being represented in a court of  law by a guardian or where a suit is filed on the ground  that the plaintiff being a minor he was not appropriately  represented therein or any transaction made on his behalf  was void as he was a minor. A court of law for the  purpose of determining the age of a party to the lis,  having regard to the provisions of Section 35 of the  Evidence Act will have to apply the same standard. No  different standard can be applied in case of an accused as  in a case of abduction or rape, or similar offence where  the victim or the prosecutrix although might have  consented with the accused, if on the basis of the entries  made in the register maintained by the school, a  judgment of conviction is recorded, the accused would be  deprived of his constitutional right under Article 21 of  the Constitution, as in that case the accused may unjustly  be convicted.  39. We are, therefore, of the opinion that until the age of  a person is required to be determined in a manner laid

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

down under a statute, different standard of proof should  not be adopted. It is no doubt true that the court must  strike a balance. In case of a dispute, the court may  appreciate the evidence having regard to the facts and  circumstances of the case. It would be a duty of the court  of law to accord the benefit to a juvenile, provided he is  one. To give the same benefit to a person who in fact is  not a juvenile may cause injustice to the victim. In this  case, the appellant had never been serious in projecting  his plea that he on the date of commission of the offence  was a minor. He made such statement for the first time  while he was examined under Section 313 of the Code of  Criminal Procedure.  40. The family background of the appellant is also a  relevant fact. His father was a "Pradhan" of the village.  He was found to be in possession of an unlicensed  firearm. He was all along represented by a lawyer. The  court estimated his age to be 18 years. He was tried  jointly with the other accused. He had been treated alike  with the other accused. On merit of the matter also the  appellant stands on the same footing as the other accused.  The prosecution has proved its case. In fact no such plea  could be raised as the special leave petition of the  persons similarly situated was dismissed when the Court  issued notice having regard to the contention raised by  him for the first time that he was a minor on the date of  occurrence."

15.     However, in Jitendra Ram  vs. State of Jharkhand : (2006) 9 SCC 428  this Court noticed that in a similar situation it would be necessary to make  an enquiry.  It was stated :- "20. We are, however, not oblivious of the decision of  this Court in Bhola Bhagat v. State of Bihar wherein an  obligation has been cast on the court that where such a  plea is raised having regard to the beneficial nature of the  socially oriented legislation, the same should be  examined with great care. We are, however, of the  opinion that the same would not mean that a person who  is not entitled to the benefit of the said Act would be  dealt with leniently only because such a plea is raised.  Each plea must be judged on its own merit. Each case has  to be considered on the basis of the materials brought on  records."  

       It was furthermore held :-

22. We, therefore, are of the opinion that the  determination of the age of the appellant as on the date of  the commission of the offence should be done afresh by  the learned Sessions Judge."

16.     We are, therefore, of the view that in this case the trial judge should  be directed to hold the enquiry in regard to the age of the appellant on the  date of commission of the offence and in the event it is found that the  appellant was a juvenile within the meaning of the provisions of the said  Act, he should proceed with the matter in accordance with law.  It is directed  accordingly.  17.     The appeal is allowed on the aforesaid terms.