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Monday, July 22, 2013

Juvenile Justice (Care and Protection of Children) Act, 2000= whether the appellant was a juvenile or a child as defined by Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 on the date of occurrence of the offence he was charged with. On a consideration of the Report called for by this Court on this question, the issue must be answered in the affirmative.;whether the conviction of the appellant can be sustained on merits and, if so, the sentence to be awarded to the appellant. In our opinion the conviction of the appellant must be upheld and on the quantum of sentence, he ought to be dealt with in accordance with the provisions of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 read with Section 15 thereof.; whether any appropriate measures can be taken to prevent the recurrence of a situation, such as the present, where an accused is subjected to a trial by a regular Court having criminal jurisdiction but he or she is later found to be a juvenile. In this regard, we propose to give appropriate directions to all Magistrates which, we hope, will prevent such a situation from arising again. =The appellant was a juvenile on the date of the occurrence of the incident. His case has been examined on merits and his conviction is upheld. The only possible and realistic sentence that can be awarded to him is the imposition of a fine. The existing fine of Rs.100/- is grossly inadequate. To this extent, the punishment awarded to the appellant is set aside. The issue of the quantum of fine to be imposed on the appellant is remitted to the jurisdictional Juvenile Justice Board. The jurisdictional Juvenile Justice Board is also enjoined to examine the compensation to be awarded, if any, to the family of Asha Devi in terms of the decision of this Court in Ankush Shivaji Gaikwad. whenever an accused, who physically appears to be a juvenile, is produced before a Magistrate, he or she should form a prima facie opinion on the juvenility of the accused and record it. If any doubt persists, the Magistrate should conduct an age inquiry as required by Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 to determine the juvenility or otherwise of the accused person. In this regard, it is better to err on the side of caution in the first instance rather than have the entire proceedings reopened or vitiated at a subsequent stage or a guilty person go unpunished only because he or she is found to be a juvenile on the date of occurrence of the incident. Accordingly, the matter is remanded to the jurisdictional Juvenile Justice Board constituted under the Juvenile Justice (Care and Protection of Children) Act, 2000 for determining the appropriate quantum of fine that should be levied on the appellant and the compensation that should be awarded to the family of Asha Devi. Of course, in arriving at its conclusions, the said Board will take into consideration the facts of the case as also the fact that the appellant has undergone some period of incarceration. 72. The appeal is partly allowed with the directions given above.

                     published in      http://judis.nic.in/supremecourt/imgst.aspx?filename=40541                             

         REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 763 OF 2003
Jitendra Singh @ Babboo Singh  & Anr.       ... Appellants

                        Versus

State of U.P.                                   ...      Respondent



                               J U D G M E N T

Madan B. Lokur, J.
1. Three principal issues arise for consideration in this appeal. The  first
   is
whether the appellant was a juvenile or a child as defined by  Section
   2(k) of the Juvenile Justice (Care and Protection of Children) Act,  2000 on the date of occurrence of the  offence  he  was  charged  with.  
On  a  consideration of the Report called for by this Court  on  this  question,  the issue must be answered in the affirmative.
2. The second is
whether the conviction of the appellant  can  be  sustained
   on merits and, if so, the sentence to be awarded to  the  appellant.   In
   our opinion the conviction of the appellant must be  upheld  and  on  the quantum of sentence, he ought to be dealt with  in  accordance  with  the provisions of Section 20 of the Juvenile Justice (Care and Protection  of  Children) Act, 2000 read with Section 15 thereof.
3. The third question is
whether any appropriate measures can  be  taken  to prevent the recurrence of a situation, such  as  the  present,  where  an accused is subjected to a  trial  by  a  regular  Court  having  criminal  jurisdiction but he or she is later found  to  be  a  juvenile.
In  this
   regard, we propose to give  appropriate  directions  to  all  Magistrates
   which, we hope, will prevent such a situation from arising again.
The facts:

4. On the midnight of 23rd / 24th May 1988 it is alleged that Asha Devi  was
   set on fire by the appellants and two other persons.  A demand for dowry,
   which she was unable to meet, resulted in the unfortunate incident.
5. On 24th May 1988 at about 5 a.m., Asha Devi’s uncle came to know  of  the
   incident and he lodged  a  complaint  with  the  local  police.   In  the
   meanwhile, Asha Devi had been taken to the District  Hospital  where  she
   succumbed to the burns.
6. After completing the investigation,  the  local  police  filed  a  charge
   sheet on 10th July 1988 against the appellants and two other persons. The
   charge sheet alleged offences committed under Section 147,  Section  302,
   Section 304-B and Section 498-A of the Indian Penal Code (for  short  the
   ‘IPC’).
7. Thereafter the case proceeded  to  trial  and  the  Sessions  Judge,  Rae
   Bareli in S.T. No. 186 of 1988 delivered judgment  on  30th  August  1990
   convicting the appellants and  acquitting  the  other  two  persons.  The
   appellants were convicted under Section 304-B of the  IPC  (dowry  death)
   and sentenced to undergo 7 years rigorous imprisonment.  They  were  also
   convicted under Section 498-A of the IPC (husband or relative of  husband
   of a woman subjecting her to cruelty) and sentenced to  undergo  2  years
   rigorous imprisonment and to pay a fine of Rs.100/- each.
8. Feeling aggrieved  by  their  conviction  and  sentence,  the  appellants
   preferred Criminal Appeal No. 464 of 1990 in the  Lucknow  Bench  of  the
   Allahabad High Court. By its judgment and order dated 23rd May  2003  the
   High Court dismissed the Criminal Appeal. This is reported  as  2003  (3)
   ACR 2431=MANU/UP/2115/2003.
9. Against the judgment and order passed by the  Allahabad  High  Court  the
   appellants came up in appeal to this Court.  It  may  be  mentioned  that
   during the pendency of this appeal the second appellant  (father  of  the
   first appellant) died and therefore only the appeal filed  by  the  first
   appellant, the husband of Asha Devi, survives.
10. During the pendency of these proceedings the  appellant  filed  Criminal
   Miscellaneous Petition No. 16974 of 2010 for raising additional  grounds.
   He sought to contend that on the date of commission of  the  offence,  he
   was a juvenile or child within the meaning of that expression as  defined
   in Section 2(k) of the Juvenile Justice (Care and Protection of Children)
   Act, 2000 (hereinafter referred to  as  the  ‘Act’).   According  to  the
   appellant his date of birth was 31st August 1974 and therefore, when  the
   offence is alleged to have been committed, he was about 14 years of age.
11. The application for urging additional grounds  was  considered  by  this
   Court and by an order dated 19th November 2010 it was held, while relying
   upon Pawan v. State of Uttaranchal, (2009) 15 SCC 259  that  prima  facie
   there was material which necessitated an inquiry into the  claim  of  the
   appellant that he was a  juvenile  at  the  time  of  commission  of  the
   offence. Accordingly, the following direction was given:
           “In the result we allow the  appellant  to  urge  the  additional
     ground regarding juvenility  of  the  appellant  on  the  date  of  the
     commission of the offence and direct the Trial Court to hold an enquiry
     into the  said  question  and  submit  a  report  as  expeditiously  as
     possible, but not later than four months from today.  We make it  clear
     that the Trial Court shall be free  to  summon  the  concerned  School,
     Panchayat or the Electoral office record or any other record  from  any
     other source which it considers necessary for a proper determination of
     the age of the appellant.  We also make it clear that  in  addition  to
     the above, the Trial Court shall be free to constitute a Medical  Board
     comprising at least three experts on the subject for  determination  of
     the age of the appellant, based on medical tests and examination.”


Report of the Additional Sessions Judge:

12. The Additional Sessions Judge, Rae Bareli acted on the order dated  19th
   November 2010 and registered the proceedings as Miscellaneous Case No.  1
   of 2010. He then submitted his Report dated 18th February 2011  in  which
   he accepted the claim of the appellant that his date of  birth  was  31st
   August 1974. As such, the  appellant  was  a  juvenile  on  the  date  of
   commission of the offence.
13. For the purposes of preparing his Report, the Additional Sessions  Judge
   examined several  witnesses  including  A.P.W.  1  Samar  Bahadur  Singh,
   Principal,  Pre-Middle  School,  Sohai  Bagh  who  produced  the   school
   admission register pertaining to the admission of the  appellant  in  the
   school.  The register showed the date of birth of the appellant  as  31st
   August 1974 and the Additional Sessions Judge found that the register had
   not                 been                  tampered                  with.


14. The Additional Sessions Judge also examined A.P.W.  11  Dr.  Birbal  who
   was a member of the Medical Board constituted by him. The  Medical  Board
   examined the appellant on 24th December 2010 and gave his age as about 40
   years. Reference in this context was also made to  an  ossification  test
   conducted on the appellant while  he  was  in  judicial  custody  in  the
   District Jail in  Rae  Bareli  during  investigation  of  the  case.  The
   ossification test was conducted on 8th July 1988 and that determined  the
   appellant’s age as about 17 years.
15.  At  this  stage,  it  may  be  mentioned  that  on  the  basis  of  the
   ossification  test  the  appellant  had  applied  for  bail  before   the
   Additional Sessions Judge in Rae Bareli being Bail Application No. 435 of
   1988.  The Additional Sessions Judge noted that  while  the  age  of  the
   appellant was determined at about 17 years by the Chief Medical  Officer,
   there could be a difference of about 2 years either way and therefore  by
   an order dated 13th July 1988 the application for bail was rejected.
16. The appellant then moved the Lucknow Bench of the Allahabad  High  Court
   by  filing  a  bail  application  which  was   registered   as   Criminal
   Miscellaneous Case No. 1859(B) of 1988.  By an order dated 25th  November
   1988 the Allahabad  High  Court  granted  bail  to  the  appellant  while
   holding, inter alia, that it was difficult to discard the opinion of  the
   Chief Medical Officer regarding the appellant’s age.
17. Coming back to the Report, the Additional Sessions Judge  also  examined
   A.P.W. 5 Pankulata the younger sister of deceased Asha Devi.  She  stated
   that Asha Devi was about 4 or 5 years older than the appellant  and  that
   it was not unknown, apparently in their community, for  the  wife  to  be
   older than the husband.  The record of the case shows that Asha Devi died
   at the age of about 19 after having been  married  for  about  4½  years.
   This would mean that the appellant was married to Asha Devi when  he  was
   about 9 years old and that on the date of the incident he  was  about  14
   years old.
18. The Additional Sessions  Judge  also  examined  A.P.W.  8  Sanoj  Singh,
   husband of Pankulata, who gave a statement in tune with that of his wife.
    The Additional Sessions Judge also examined A.P.W.  9  Narendra  Bahadur
   Singh husband of A.P.W. 10 Kanti Singh.  All these  witnesses  stated  to
   the effect that apparently in their community the wife is normally  older
   than the husband at  the  time  of  marriage.   All  these  persons  also
   produced proof of their age to show that the wife (A.P.W. 5 Pankulata and
   A.P.W. 10 Kanti Singh) was older than her husband at the  time  of  their
   marriage.
19. On the basis of the material before him, the Additional  Sessions  Judge
   accepted the claim of the appellant that he was younger than his wife  at
   the time of marriage and that his date of birth was 31st August 1974.
20. Objections have been  filed  to  this  Report  by  the  State  of  Uttar
   Pradesh, but the only objection taken is that the documents pertaining to
   the education of the appellant were produced after a great delay and  not
   immediately.  It was also submitted that it is improbable that a girl  of
   about 15 years of age would get married to a boy of about 9 years of age.


21. The Report given by the Additional  Sessions  Judge  has  been  examined
   with the assistance of learned counsel and there is no reason  to  reject
   it.  While the circumstances are rather unusual, the  fact  remains  that
   there is documentary evidence to show from the school admission  register
   (which has not been  tampered  with)  that  the  date  of  birth  of  the
   appellant is 31st August 1974.  That apart, the  medical  examination  of
   the appellant conducted on 8th July 1988 less than two months  after  the
   incident, also shows his age to be about 17 years.  This was not  doubted
   by the Additional Session Judge while rejecting the bail  application  of
   the appellant and was also not doubted by the Allahabad High Court  while
   granting bail to him.  Therefore, it does appear that the  appellant  was
   about 17 years of age when the incident had occurred and that he had  set
   up a claim of being a juvenile or child soon after his arrest and  before
   the charge sheet was filed. In other words, the appellant was a  juvenile
   or a child within the meaning of that expression as  defined  in  Section
   2(k) of the Act.
Should the conviction be upheld:

22. The  next  question  that  arises  is  whether  the  conviction  of  the
   appellant is justified or not. Before examining the evidence  on  record,
   it is necessary to mention that both the Trial Court as well as the  High
   Court have concurrently found that the appellants had demanded dowry from
   Asha Devi and that she had been set on fire for not having complied  with
   the demands for dowry.
23. Section 304-B of the IPC which is the more  serious  offence  for  which
   the appellant has been found guilty, reads as follows:
        “304-B. Dowry death.—(1) Where the death of a woman  is  caused  by
        any burns or bodily injury or occurs otherwise  than  under  normal
        circumstances within seven years of her marriage and  it  is  shown
        that soon  before  her  death  she  was  subjected  to  cruelty  or
        harassment by her husband or any relative of her husband for, or in
        connection with, any demand for dowry, such death shall  be  called
        “dowry death”, and such husband or relative shall be deemed to have
        caused her death.


           Explanation.—For the purpose of this sub-section, “dowry”  shall
        have the same meaning as in Section 2 of the Dowry Prohibition Act,
        1961 (28 of 1961).


        (2) Whoever commits dowry death shall be punished with imprisonment
        for a term which shall not be less than seven years but  which  may
        extend to imprisonment for life.”

24. A plain reading of this section, which explains a dowry death, makes  it
   clear that its ingredients are (a) the death of  a  woman  is  caused  by
   burns or a bodily injury or that it occurs otherwise  than  under  normal
   circumstances; (b) the death  takes  place  within  seven  years  of  her
   marriage; (c) the woman was subjected, soon before her death, to  cruelty
   or harassment by her husband or any relative of her husband  for,  or  in
   connection with, any demand for dowry.
25. In the present case, both the Trial Court and the High Court have  found
   that Asha Devi had died of burn injuries as per the medical evidence; she
   had been set on fire on the midnight of 23/24 May 1988 and taken  to  the
   hospital at about 4 a.m. on 24th May 1988 where she succumbed to the burn
   injuries at about 5.30 a.m.; she had been married to  the  appellant  for
   about 4½ years before her death;  and  that  the  evidence  of  PW-1  Ram
   Bahadur (uncle of Asha Devi) and PW-3 Tej Bahadur Singh (father  of  Asha
   Devi) disclosed that demands were being made by the appellants for  dowry
   soon before her death.  Apart from cash, a demand was made by the in-laws
   of Asha Devi for a gold chain and a horse.  Since the  demands  were  not
   complied with, Asha Devi was frequently beaten  and  harassed.   She  had
   brought this to the notice of her uncle as well as her father.  In  fact,
   before her demise, she had written a  letter  to  her  father  about  the
   beating and harassment given to her due to  the  inability  to  meet  the
   dowry demands.  The letter was proved by the prosecution and  was  relied
   on by the Trial Court as well as the High Court in accepting the  version
   of the prosecution.  Clearly, therefore, the ingredients of Section 304-B
   of the IPC were made out.
26. However, the case put up  by  the  appellant  was  that  Asha  Devi  had
   accidentally caught fire while she was cooking and  therefore  it  was  a
   case of accidental death.  This was not accepted by both the Trial  Court
   as well as the High Court since there was no explanation  given  for  the
   delay of about 4 hours in taking Asha Devi to the hospital  if  the  case
   was really one of accidental  death.   Moreover,  there  was  nothing  to
   suggest that the appellant or anyone in the family had made  any  attempt
   to extinguish the fire.
27. There is no doubt, on the basis of the facts found by  the  Trial  Court
   as well as the High Court from the evidence on  record  that  a  case  of
   causing a  dowry  death  had  convincingly  been  made  out  against  the
   appellant.  There  is  no  apparent  reason  to  disturb  the  concurrent
   findings of fact arrived at by the Trial Court and the High Court and  so
   the conviction of the appellant must be upheld.
Sentence to be awarded:
28. On the sentence to be awarded to a convict who was a  juvenile  when  he
   committed the offence, there is a dichotomy of views.
29. In the first category of cases,  the  conviction  of  the  juvenile  was
   upheld but the sentence quashed. In  Jayendra v. State of Uttar  Pradesh,
   (1981) 4 SCC 149 the conviction of the appellant was confirmed though  he
   was held to be a child as defined in Section 2(4) of  the  Uttar  Pradesh
   Children Act, 1951. However, he was not  sent  to  an  ‘approved  school’
   since he was 23 years old by that time. His sentence was quashed  and  he
   was directed to be released forthwith.
30. Similarly, in Bhoop Ram v. State of U.P.  (1989)  3  SCC  1  this  Court
   followed Jayendra and while upholding the conviction of the appellant who
   was 28 years old by that time, the sentence awarded to him was quashed.
31. In Pradeep Kumar v. State of U.P., 1995 Supp (4)  SCC  419  yet  another
   case under the Uttar Pradesh Children Act, 1951  the  conviction  of  the
   appellant was upheld but since he was 30 years  old  by  that  time,  his
   sentence was set aside.
32. In Bhola Bhagat and other v. State  of  Bihar,  (1997)  8  SCC  720  the
   conviction of the appellant was upheld by this Court but the sentence was
   quashed keeping in mind the provisions of the Bihar  Children  Act,  1970
   read with the Bihar Children Act, 1982  and  the  Juvenile  Justice  Act,
   1986.
33. In Upendra Kumar v.  State  of  Bihar,  (2005)  3  SCC  592  this  Court
   followed Bhola Bhagat and upheld the  conviction  of  the  appellant  but
   quashed the sentence awarded to him.
34. In Gurpreet Singh v. State of Punjab, (2005)  12  SCC  615  one  of  the
   appellants was a juvenile within the meaning of that expression occurring
   in Section 2(h) of the Juvenile Justice Act, 1986.  This Court held  that
   if the accused was a juvenile on the date of occurrence and continues  to
   be so, then in that event he would have to be  sentenced  to  a  juvenile
   home. However, if on the date of sentence, the accused  is  no  longer  a
   juvenile, the sentence imposed on him would be liable to be set aside. In
   this context, reference was made to Bhoop Ram.
35. Finally in Vijay  Singh  v.  State  of  Delhi,  (2012)  8  SCC  763  the
   conviction of the appellant was upheld but the sentence was quashed since
   he was about 30 years old by that time.
36. The second category of cases  includes  Satish  @  Dhanna  v.  State  of
   Madhya Pradesh, (2009) 14 SCC 187 wherein the conviction of the appellant
   was upheld but the  sentence  awarded  was  modified  to  the  period  of
   detention already undergone. Similarly, in Dharambir  v.  State  (NCT  of
   Delhi), (2010) 5 SCC 344 the conviction of the  appellant  was  sustained
   but since the  convict  had  undergone  two  years  and  four  months  of
   incarceration, the sentence awarded to him was quashed.
37. The third category of cases includes Hari Ram  v.  State  of  Rajasthan,
   (2009) 13 SCC 211 wherein the appellant was held to be a juvenile on  the
   date of commission of the offence. His appeal against his conviction  was
   allowed and the entire case remitted to the Juvenile  Justice  Board  for
   disposal in accordance with law.
38. In Daya Nand v. State of Haryana, (2011) 2 SCC 224 this  Court  followed
   Hari Ram and directed the appellant to be produced  before  the  Juvenile
   Justice Board for passing  appropriate  orders  in  accordance  with  the
   provisions of the Juvenile Justice (Care and Protection of Children) Act,
   2000.
39. The fourth category of cases includes Ashwani Kumar Saxena v.  State  of
   Madhya Pradesh, (2012) 9 SCC 750 in which the conviction of the appellant
   was upheld and the records were directed to be placed before the Juvenile
   Justice Board for awarding suitable punishment to the appellant.
40. The sum and substance of the above discussion is  that  in  one  set  of
   cases this Court has found the juvenile guilty of the  crime  alleged  to
   have been committed by him but he has  gone  virtually  unpunished  since
   this Court quashed the sentence awarded to him. In another set of  cases,
   this Court has taken the view, on the facts of the case that the juvenile
   is adequately punished for the offence committed by him  by  serving  out
   some period in detention. In the third  set  of  cases,  this  Court  has
   remitted the entire case for consideration by the jurisdictional Juvenile
   Justice Board, both on the innocence or guilt of the juvenile as well  as
   the sentence to be awarded if the juvenile is found guilty. In the fourth
   set of cases, this Court has examined the case on merits and after having
   found the juvenile guilty of the offence,  remitted  the  matter  to  the
   jurisdictional Juvenile Justice Board on the award of sentence.
41. In our opinion, the course to adopt is laid down in Section  20  of  the
   Juvenile Justice (Care and Protection of Children) Act, 2000. This  reads
   as follows:
      “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 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 (l) 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.”


42. It is clear that the case of the juvenile has to be examined on  merits.
   If it found that the juvenile is guilty of the offence  alleged  to  have
   been committed, he simply cannot go  unpunished.   However,  as  the  law
   stands, the punishment to be awarded to him or her must be  left  to  the
   Juvenile Justice Board constituted under the Juvenile Justice  (Care  and
   Protection of Children) Act, 2000.  This  is  the  plain  requirement  of
   Section 20 of the Juvenile Justice (Care and Protection of Children) Act,
   2000. In other words, Ashwani Kumar Saxena should be followed.
43.  In the present case, the offence was committed by  the  appellant  when
   the Juvenile  Justice  Act,  1986  was  in  force.  Therefore,  only  the
   ‘punishments’ not greater than those postulated by the  Juvenile  Justice
   Act, 1986 ought to be awarded to him. This is the requirement of  Article
   20(1) of the Constitution.  The ‘punishments’ provided under the Juvenile
   Justice Act, 1986 are given in  Section  21  thereof  and  they  read  as
   follows:
      “21. Orders that may be  passed  regarding  delinquent  juveniles.—(1)
      Where a Juvenile Court 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  Juvenile
      Court may, if it so thinks fit,—


      (a) allow the juvenile to go home after advice or admonition;


      (b) direct the juvenile to be released on probation  of  good  conduct
      and placed under the care of any parent, guardian or other fit person,
      on such parent, guardian or other fit person executing a bond, with or
      without surety as that Court may require, for the good  behaviour  and
      well-being of the juvenile for any period not exceeding  three  years;
      Juvenile Justice Act, 1986


      (c) direct the juvenile to be released on probation  of  good  conduct
      and placed under  the  care  of  any  fit  institution  for  the  good
      behaviour and well-being of the juvenile for any period not  exceeding
      three years;


      (d) make an order directing the juvenile  to  be  sent  to  a  special
      home,—


           (i) in the case of a boy over fourteen years of age or of a girl
           over sixteen years of age, for a period of not less  than  three
           years;


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


           Provided that xxx xxx xxx.


           Provided further that xxx xxx xxx;


      (e) order the juvenile to pay a fine if he is over fourteen  years  of
      age and earns money.


      (2) Where an order under clause (b), clause (c) or clause (e) of  sub-
      section (1) is made, the Juvenile Court may, if it is of opinion  that
      in the interests of the juvenile and of the public it is expedient  so
      to do, in addition make an order that the  delinquent  juvenile  shall
      remain under the supervision of a probation officer named in the order
      during such period, not exceeding three years,  as  may  be  specified
      therein, and may in such supervision order impose such  conditions  as
      it deems necessary for the due supervision of the delinquent juvenile:


      Provided that xxx xxx xxx.


      (3) xxx xxx xxx.


      (4) xxx xxx xxx.”


44. A perusal of the ‘punishments’ provided for under the  Juvenile  Justice
   Act, 1986 indicate that given the nature of the offence committed by  the
   appellant,  advising  or  admonishing  him  [clause  (a)]  is  hardly   a
   ‘punishment’ that can be awarded since it is not at all commensurate with
   the gravity of the crime. Similarly, considering  his  age  of  about  40
   years, it is completely illusory to expect the appellant to  be  released
   on probation of good conduct, to be placed under the care of any  parent,
   guardian or fit person [clause (b)].  For the same reason, the  appellant
   cannot be released on probation of good conduct under the care of  a  fit
   institution [clause (c)] nor can he be  sent  to  a  special  home  under
   Section 10 of the Juvenile Justice Act, 1986 which is intended to be  for
   the rehabilitation and reformation of delinquent juveniles [clause  (d)].
   The only realistic  punishment  that  can  possibly  be  awarded  to  the
   appellant on the facts of this case is to require him to pay a fine under
   clause (e) of Section 21(1) of the Juvenile Justice Act, 1986.
45. While dealing with the case of the appellant under  the  IPC,  the  fine
   imposed  upon  him  is  only  Rs.100/-.   This  is  ex  facie  inadequate
   punishment considering the fact that Asha Devi suffered a dowry death.
46. Recently, one of us (T.S. Thakur, J.) had  occasion  to  deal  with  the
   issue of compensation to the victim of  a  crime.   An  illuminating  and
   detailed discussion in this regard is  to  be  found  in  Ankush  Shivaji
   Gaikwad v. State of Maharashtra, 2013 (6) SCALE 778.  Following the  view
   taken therein read with the provisions of  Section  20  of  the  Juvenile
   Justice (Care and Protection  of  Children)  Act,  2000  the  appropriate
   course of action in the present case would be to remand the matter to the
   jurisdictional Juvenile Justice  Board  constituted  under  the  Juvenile
   Justice (Care and Protection of Children) Act, 2000 for  determining  the
   appropriate quantum of fine that should be levied on  the  appellant  and
   the compensation that should be awarded to the family of Asha Devi.
Avoiding a recurrence:

47. How can a situation such as the one that has arisen in  this  case  (and
   in several others in the past) be avoided? We need to only appreciate and
   understand a few provisions of the Juvenile Justice (Care and  Protection
   of Children) Act, 2000 (the Act)  and  the  Model  Rules  framed  by  the
   Government of India called the Juvenile Justice (Care and  Protection  of
   Children) Rules, 2007 (the Rules).
48. The preamble to the Act draws attention to the Convention on the  Rights
   of the Child which was ratified  by  the  Government  of  India  on  11th
   December 1992. The Convention  has  prescribed,  inter  alia,  a  set  of
   standards to be adhered to in securing the best interests of  the  child.
   For the present purposes, it is not necessary to detail those  standards.
   However, keeping this in mind, several special procedures, over and above
   or despite the Criminal Procedure Code (for short  the  Code)  have  been
   laid down for the benefit of a juvenile or a child in conflict with  law.
   These special procedures are to be found both in the Act as  well  as  in
   the Rules. Some (and only some) of them are indicated below.
49. A Juvenile Justice Board is constituted under Section 6 of  the  Act  to
   deal exclusively with  all  proceedings  in  respect  of  a  juvenile  in
   conflict with law. When a juvenile charged with an  offence  is  produced
   before a Juvenile Justice Board, it is required to hold an inquiry (not a
   trial) and pass such orders as  it  deems  fit  in  connection  with  the
   juvenile (Section 14 of the Act).
50. A juvenile or a child in conflict with law cannot be kept  in  jail  but
   may be temporarily received in an Observation Home during the pendency of
   any inquiry against him (Section 8 of the Act).  If  the  result  of  the
   inquiry is against him, the said juvenile may be received  for  reception
   and rehabilitation in a Special Home (Section 9 of the Act).  The maximum
   period for reception and rehabilitation in a Special Home is three  years
   (Section 15 of the Act). Even  this,  in  terms  of  Article  37  of  the
   Convention on the Rights of the Child, shall be a measure of last resort.
51. The provision dealing with bail (Section  12  of  the  Act)  places  the
   burden for denying bail on the prosecution.  Ordinarily,  a  juvenile  in
   conflict with law shall be released  on  bail,  but  he  may  not  be  so
   released if there  appear  reasonable  grounds  for  believing  that  the
   release is likely to bring him into association with any  known  criminal
   or expose him to moral, physical or  psychological  danger  or  that  his
   release would defeat the ends of justice.
52. Orders that may  be  passed  by  a  Juvenile  Justice  Board  against  a
   juvenile, if it is satisfied  that  he  has  committed  an  offence,  are
   mentioned in Section 15 of the Act. One of the orders that may be passed,
   as mentioned above, is for his reception and rehabilitation in a  Special
   Home for a period of three years, as a measure of last resort.
53. The Rules, particularly  Rule  3,  provide,  inter  alia,  that  in  all
   decisions taken within the context  of  administration  of  justice,  the
   principle  of  best  interests  of  a  juvenile  shall  be  the   primary
   consideration. What this means is that  “the  traditional  objectives  of
   criminal justice, that is retribution and repression, must  give  way  to
   rehabilitative and restorative objectives of juvenile justice”. The right
   to privacy and confidentiality of a juvenile is required to be  protected
   by all means and through all the stages of the proceedings, and  this  is
   one of the reasons why the identity of a juvenile in conflict with law is
   not disclosed.  Following the  requirements  of  the  Convention  on  the
   Rights of the Child, Rule 3 provides that institutionalization of a child
   or a juvenile in conflict with law shall  be  the  last  resort  after  a
   reasonable inquiry and that too for the minimum possible duration.
      Rule 32 provides that:


      “The primary aim of rehabilitation and social reintegration is to help
      children in restoring their dignity and self-worth and mainstream them
      through rehabilitation within the family where possible, or  otherwise
      through alternate care programmes  and  long-term  institutional  care
      shall be of last resort.”


54. It is quite clear from the above that the  purpose  of  the  Act  is  to
   rehabilitate a juvenile in conflict with law with a view  to  reintegrate
   him into society. This is by no means  an  easy  task  and  it  is  worth
   researching how successful the implementation of the Act has been in  its
   avowed purpose in this respect.
55. As regards procedurally dealing with a juvenile in  conflict  with  law,
   the Rules require the concerned State  Government  to  set  up  in  every
   District a Special Juvenile Police Unit to handle the cases of  juveniles
   or children in terms of the provisions of the Act (Rule 84).   This  Unit
   shall consist of a juvenile or child  welfare  officer  of  the  rank  of
   Police  Inspector  having  an  aptitude  and  appropriate  training   and
   orientation to handle such cases. He will be assisted by two paid  social
   workers having experience of working in the field  of  child  welfare  of
   which one of them shall be a woman.
56. Rule 75 of the Rules requires that while dealing with a  juvenile  or  a
   child, except at the time of arrest, a police officer  shall  wear  plain
   clothes and not his uniform.
57. The Act and the Model Rules clearly constitute an independent  code  for
   issues concerning a child or  a  juvenile,  particularly  a  juvenile  in
   conflict with law. This code is intended to safeguard the rights  of  the
   child and a juvenile in conflict with law and to put him  in  a  category
   separate and distinct from an adult accused of a crime.
58. Keeping in mind all these standards and safeguards required  to  be  met
   as per our international obligations, it  becomes  obligatory  for  every
   Magistrate before whom an accused is produced to ascertain, in the  first
   instance or as soon thereafter as may be possible,  whether  the  accused
   person is an adult or a juvenile in conflict with  law.  The  reason  for
   this, obviously, is to avoid a two-fold difficulty:  first,  to  avoid  a
   juvenile being subjected to procedures under the normal criminal law  and
   de hors the Act and the Rules, and second, a resultant  situation,  where
   the “trial” of the juvenile is required to be set aside  and  quashed  as
   having been conducted by a court not having jurisdiction to do  so  or  a
   juvenile, on being found guilty, going ‘unpunished’.  This  is  necessary
   not only in the best interests of the juvenile but also  for  the  better
   administration of criminal justice so that the Magistrate or the Sessions
   Judge (as the case may be) does not  waste  his  time  and  energy  on  a
   “trial”.
59. It must be appreciated by every  Magistrate  that  when  an  accused  is
   produced  before  him,  it  is  possible  that  the  prosecution  or  the
   investigating officer may be under a mistaken impression that the accused
   is an adult. If the Magistrate has any iota of doubt about the juvenility
   of an accused produced before him, Rule 12 provides that a Magistrate may
   arrive at a prima facie conclusion on the juvenility, on the basis of his
   physical appearance. In our opinion, in such a  case,  this  prima  facie
   opinion should be recorded by the Magistrate.  Thereafter,  if  custodial
   remand is necessary, the accused may be sent to jail or a juvenile may be
   sent to an Observation Home, as the  case  may  be,  and  the  Magistrate
   should simultaneously order an inquiry, if necessary, for determining the
   age of the accused. Apart from anything else, it must be appreciated that
   such an inquiry at the earliest possible  time,  would  be  in  the  best
   interests of the juvenile, since he would be kept away from adult  under-
   trial prisoners and would not be subjected to a regimen  in  jail,  which
   may not be conducive to his well being. As mentioned above, it would also
   be in the interests of better administration of criminal justice. It  is,
   therefore, enjoined upon every Magistrate to take  appropriate  steps  to
   ascertain the juvenility or otherwise of an accused person brought before
   him or her at the earliest possible point of time,  preferably  on  first
   production.
60. It must also be appreciated that due to his juvenility,  a  juvenile  in
   conflict with law may be presumed not to know  or  understand  the  legal
   procedures making it difficult  for  him  to  put  forth  his  claim  for
   juvenility when he is produced before a Magistrate. Added to this are the
   factors of poor education and poor economic set up that are  jointly  the
   main attributes of a juvenile in conflict with law, making  it  difficult
   for him to negotiate the legal procedures. We  say this on  the  strength
   of studies conducted, and which have been referred to by one of us  (T.S.
   Thakur, J) in Abuzar Hossain v. State of West Bengal, (2012) 10 SCC  489.
   It is worth repeating what has been said:
      “Studies conducted by National Crime Records Bureau  (NCRB),  Ministry
      of Home Affairs, reveal that poor education and poor economic  set  up
      are generally the main attributes of juvenile delinquents.  Result  of
      the 2011 study further show that out of 33,887 juveniles  arrested  in
      2011, 55.8% were either illiterate (6,122) or educated only  till  the
      primary level (12,803). Further, 56.7% of the total juveniles arrested
      fell into the lowest income category. A similar study is conducted and
      published by B.N. Mishra in his Book 'Juvenile Delinquency and Justice
      System', in which the author states as follows:


      “One of the prominent features of a  delinquent  is  poor  educational
      attainment. More   than   63   per    cent    of    delinquents    are
      illiterate. Poverty is the main cause of their illiteracy. Due to poor
      economic condition they were compelled to enter into the labour market
      to  supplement  their  family  income.  It  is  also  felt  that  poor
      educational attainment is not due to the lack of intelligence but  may
      be due to lack of opportunity.”


61. Such being the position,  it  is  difficult  to  expect  a  juvenile  in
   conflict with law to know  his  rights  upon  apprehension  by  a  police
   officer and if the precautions that have been suggested  are  taken,  the
   best interests of the child and thereby of society will be  duly  served.
   Therefore, it may be presumed, by way of a benefit of doubt that  because
   of his status, a juvenile may not be able to raise a claim for juvenility
   in  the  first  instance  and  that  is  why  it  becomes  the  duty  and
   responsibility of the Magistrate to look into this aspect at the earliest
   point of time in the proceedings before him.   We are of  the  view  that
   this may be a satisfactory way of avoiding the recurrence of a  situation
   such as the one dealt with.
62. We may add that our  international  obligations  as  laid  down  in  the
   Convention on the Rights of the Child and the Beijing Rules  require  the
   involvement of the parents  or  legal  guardians  in  the  legal  process
   concerning a juvenile in conflict with law. For example, a reference  may
   be made to Article 40 of the Convention and Principles 7, 10  and  15  of
   the Beijing Rules. That this is not unusual is clear from the  fact  that
   in civil disputes, our domestic law requires a minor to be represented by
   a guardian.
The remedy:

63. In D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 this  Court  laid
   down some important requirements for being adhered to by the  police  “in
   all cases of arrest or detention till legal provisions are made  in  that
   behalf as preventive measures”. The Criminal  Procedure  Code  has  since
   been amended and some of the important requirements  laid  down  by  this
   Court  have  been  given  statutory  recognition.   These   are   equally
   applicable, mutatis mutandis, to a child or a juvenile in  conflict  with
   law.
64. Attention may be drawn to Section 41-B of  the  Code  which  requires  a
   police officer making an arrest to prepare a memorandum of  arrest  which
   shall be attested by at least one witness who is a member of  the  family
   of the person arrested or a respectable member of the locality where  the
   arrest is made.  The police  officer  is  also  mandated  to  inform  the
   arrested person, if the memorandum of arrest is not attested by a  member
   of his family, that he has a right to have a relative or a  friend  named
   by him to be informed of his arrest.  Section 41-B of the Code  reads  as
   follows:
      “41-B. Procedure of arrest and duties of officer making arrest.— Every
      police officer while making an arrest shall—
        (a) bear an accurate, visible and clear identification of his  name
        which will facilitate easy identification;
        (b) prepare a memorandum of arrest which shall be—
           (i) attested by at least one witness, who is  a  member  of  the
           family of the person arrested or a  respectable  member  of  the
           locality where the arrest is made;
           (ii) countersigned by the person arrested; and
        (c) inform the person arrested, unless the memorandum  is  attested
        by a member of his family, that he has a right to have  a  relative
        or a friend named by him to be informed of his arrest.”

65. Every police officer making an arrest is  also  obliged  to  inform  the
   arrested person of his rights  including  the  full  particulars  of  the
   offence for which he has been arrested or other grounds for  such  arrest
   (Section 50 of the Code), the right to a counsel of his  choice  and  the
   right that the police inform his friend, relative or such other person of
   the arrest. Section 50-A of the Code is relevant in this  regard  and  it
   reads as follows:
      “50-A. Obligation of person making arrest to inform about the  arrest,
      etc., to a nominated person.—(1) Every police officer or other  person
      making any arrest under this Code shall forthwith give the information
      regarding such arrest and place where the  arrested  person  is  being
      held to any of his friends, relatives or such other persons as may  be
      disclosed or nominated by the  arrested  person  for  the  purpose  of
      giving such information.
      (2) The police officer shall inform the arrested person of his  rights
      under sub-section (1) as soon as he is brought to the police station.
      (3) An entry of the fact as to who has been informed of the arrest  of
      such person shall be made in a book to be kept in the  police  station
      in such form as  may  be  prescribed  in  this  behalf  by  the  State
      Government.
      (4) It shall be the duty of the Magistrate before whom  such  arrested
      person is produced, to satisfy himself that the requirements  of  sub-
      section (2) and sub-section (3) have been complied with in respect  of
      such arrested person.”

66. When any  person  is  arrested,  it  is  obligatory  for  the  arresting
   authority to ensure that he is got examined by a medical officer  in  the
   service of the Central or the State Government or by a registered medical
   practitioner. The medical officer or registered medical  practitioner  is
   mandated to prepare a record of such examination including any injury  or
   mark of violence on the person arrested.  Section 54 of the Code reads as
   follows:
      “54. Examination of arrested person by medical officer.—(1)  When  any
      person is arrested, he shall be examined by a medical officer  in  the
      service of Central or  State  Government,  and  in  case  the  medical
      officer is not available, by a registered  medical  practitioner  soon
      after the arrest is made:
        Provided  that  where  the  arrested  person  is  a   female,   the
      examination of the body shall be made only by or under the supervision
      of a female medical officer, and in case the female medical officer is
      not available, by a female registered medical practitioner.
      (2) The medical  officer  or  a  registered  medical  practitioner  so
      examining the  arrested  person  shall  prepare  the  record  of  such
      examination, mentioning therein any injuries or marks of violence upon
      the person arrested, and the approximate time when  such  injuries  or
      marks may have been inflicted.
      (3) Where an examination is made under sub-section (1), a copy of  the
      report of such examination shall be furnished by the  medical  officer
      or registered medical  practitioner,  as  the  case  may  be,  to  the
      arrested person or the person nominated by such arrested person.”

67. In our opinion, the procedures laid down in the  Code,  in  as  much  as
   they are for the benefit of a juvenile or a child, apply with full rigour
   to an apprehension made of a juvenile in conflict with law under  Section
   10 of the Act.   If these procedures are followed, the probability  of  a
   juvenile, on apprehension, being shown as an adult and sent  to  judicial
   custody in a jail, will be considerably minimized.  If  these  procedures
   are followed, as  they  should  be,  along  with  the  requirement  of  a
   Magistrate to examine the juvenility or otherwise of  an  accused  person
   brought before him, subjecting a juvenile in conflict with law to a trial
   by a regular Court may become a thing of the past.
Conclusion:

68. The appellant was a juvenile on  the  date  of  the  occurrence  of  the
   incident. His case has been examined on  merits  and  his  conviction  is
   upheld. The only possible and realistic sentence that can be  awarded  to
   him is the imposition of a fine. 
The existing fine of Rs.100/- is grossly
   inadequate. 
To this extent, the punishment awarded to  the  appellant  is
   set aside. 
The issue of  the  quantum  of  fine  to  be  imposed  on  the
   appellant is remitted to the jurisdictional Juvenile Justice  Board.  The
   jurisdictional Juvenile Justice Board is also  enjoined  to  examine  the
   compensation to be awarded, if any, to the family of Asha Devi  in  terms
   of the decision of this Court in Ankush Shivaji Gaikwad.
69. Keeping in mind our domestic law and our international  obligations,  it
   is directed that the provisions of the Criminal Procedure  Code  relating
   to arrest and the provisions of the Juvenile Justice (Care and Protection
   of Children) Act, 2000 being the law of the land, should be  scrupulously
   followed by the concerned authorities in respect of juveniles in conflict
   with law.
70. It is also directed that
whenever an accused, who physically appears  to
   be a juvenile, is produced before a Magistrate, he or she should  form  a prima facie opinion on the juvenility of the accused and record  it.   If  any doubt persists, the Magistrate  should  conduct  an  age  inquiry  as  required by Section 7A of the Juvenile Justice (Care  and  Protection  of  Children) Act, 2000 to determine  the  juvenility  or  otherwise  of  the  accused person. In this regard, it is  better  to  err  on  the  side  of caution in the first instance rather than  have  the  entire  proceedings reopened or vitiated  at  a  subsequent  stage  or  a  guilty  person  go  unpunished only because he or she is found to be a juvenile on  the  date  of occurrence of the incident.
71. Accordingly, the matter  is  remanded  to  the  jurisdictional  Juvenile
   Justice Board constituted under the Juvenile Justice (Care and Protection
   of Children) Act, 2000 for determining the appropriate  quantum  of  fine
   that should be levied on the appellant and the compensation  that  should
   be awarded to the family of Asha Devi. Of  course,  in  arriving  at  its
   conclusions, the said Board will take into consideration the facts of the
   case as also the fact that the appellant has  undergone  some  period  of
   incarceration.
72. The appeal is partly allowed with the directions given above.

                                                             …….……………………..J.
                                       (T.S. Thakur)


                                                             …….……………………..J.
                                       (Madan B. Lokur)
New Delhi;
July 10, 2013
                                                        REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.763 OF 2003


Jitendra Singh @ Babboo Singh & Anr.         …Appellants

           Versus

State of U.P.                                …Respondent

                               J U D G M E N T

T.S. Thakur, J.

1.    I have had the advantage of  going  through  the  Judgment  and  Order
proposed by my Esteemed Brother Madan  B.  Lokur,  J.   The  draft  judgment
formulates three issues for determination and answers them  with  remarkable
lucidity.  While I agree with the view taken by Brother Lokur, J.  that  the
appellant was a juvenile on the  date  of  the  commission  of  the  offence
within the  meaning  of  Section  2(k)  of  the  Juvenile  Justice  (Care  &
Protection of Children) Act, 2000 (in short , the “2000 Act”) and  that  his
conviction ought to be upheld, I wish to add  a  few  words  of  my  own  in
support of that view. As regards issue of general  directions  for  guidance
of the Courts  below,  I  do  not  have  any  serious  conceptual  or  other
disagreement with what has been proposed by  my  erudite  Brother,  for  the
proposed directions will promote the objects underlying the  2000  Act,  and
prevent anomalous situations in which juveniles in  conflict  with  law  may
stand to get prejudiced because  of  their  economic  and  other  handicaps/
because of proverbial law’s delay.

2.    The facts have been succinctly summarised in  the  draft  judgment  of
Brother Lokur, J. which do not bear repetition  except  to  the  extent  the
same is absolutely necessary to elucidate the narrative in which the  issues
arise for our consideration. The appellant was, together with three  others,
tried for offences punishable under Sections 302, 304-B  and  498-A  of  the
IPC by the Sessions Judge, Rae  Bareli,  who  by  her  judgment  dated  30th
August,  1990  convicted  him  and  his  father  Lal  Bahadur  Singh  (since
deceased) under  Section  304-B  and  sentenced  both  of  them  to  undergo
rigorous  imprisonment  for  a  period  of  seven  years.   They  were  also
convicted under Section 498-A of the IPC and sentenced to  undergo  rigorous
imprisonment for a period of two years and a fine  of  Rs.200/-  each.   The
prosecution case against the appellant and his co-accused was that they  set
on fire Asha Devi, who was none other than the wife  of  the  appellant,  on
the night  intervening  23rd  and  24th  May,  1988.   The  motive  for  the
commission of the offence was the alleged failure of the deceased Asha  Devi
and her parents to satisfy the appellant’s demand for dowry.

3.    Aggrieved by their conviction and sentence the appellant and  his  co-
accused  filed  Criminal  Appeal  No.464  of  1990,  which  failed  and  was
dismissed by the High Court in terms of the order impugned in  this  appeal.
Demise of the second appellant during the pendency  of  the  present  appeal
abated the  proceedings  qua  him,  leaving  the  appellant  to  pursue  the
challenge mounted against the judgments and  orders  passed  by  the  Courts
below, by himself.

4.    Seven years after the filing of the present appeal, the appellant  for
the first time filed Crl.  Misc. Petition No.16974 of  2010  for  permission
to urge an additional ground to the effect that the  appellant  was  on  the
date of the commission of the offence  a  juvenile  within  the  meaning  of
Section 2 (k) of the 2000, Act. It was  urged  on  the  basis  of  a  school
certificate that the petitioner  was  on  the  date  of  commission  of  the
offence hardly 14 years of  age,  and  hence  a  juvenile  entitled  to  the
protection of the Act aforementioned.  By  an  order  dated  19th  November,
2010, this Court allowed the Criminal Miscellaneous Petition, permitted  the
appellant to raise the additional plea and  directed  an  inquiry  into  the
claim of juvenility of the appellant by the Trial Court.

5.    The  Trial  Court  accordingly  conducted  an  inquiry,  examined  the
relevant school record and, based on the entirety of the evidence  including
the medical evidence adduced  in  the  course  of  the  inquiry,  held  that
according to the school certificate the age of the appellant on the date  of
the incident in question was around 13 years 8 months on  the  date  of  the
incident.  In  doing  so  the  trial  Court  gave  credence  to  the  school
certificate in preference to  the  medical  examination  and  other  equally
compelling records touching upon the age of the appellant  like  the  Family
Register maintained by the Panchayat and the Electoral  rolls  according  to
which the appellant’s age was above 16 years and below 17  ½  years  on  the
date of the  occurrence.   Although  the  respondent  has  objected  to  the
finding of the Trial Court and the assessment of the age as on the  date  of
the commission of the offence, I am inclined to go  along  with  Lokur,  J’s
finding as to age of the appellant when His Lordship says:

           “.....Therefore, it does appear that the appellant was about  17
           years of age when the incident had occurred and that he had  set
           up a claim of being a juvenile or child soon  after  his  arrest
           and before the charge sheet was  filed.   In  other  words,  the
           appellant was a juvenile or a child within the meaning  of  that
           expression as defined in Section 2(k) of the Act.”




6.    I may, independent of the conclusion drawn  by  my  esteemed  brother,
briefly state my reasons for holding that the appellant  was  above  sixteen
years as on the date of  the  commission  of  the  offence,  no  matter  the
enquiry report submitted by the Trial Court has held him to be less than  16
years on that date.  But before I do so, it is  important  to  mention  that
the question whether the appellant was less or more  than  16  is  important
not because the benefit of the  2000  Act  depends  on  that  question,  but
because the answer to that question has a bearing on whether the  conviction
of the appellant was itself illegal, hence liable to be set  aside.   I  say
so because, the benefit of the 2000 Act, would be in any case  available  to
the appellant, so long as he was less than 18 years of age  on  the  crucial
date, and it is nobody’s case that he was above that age on that  date.  The
decision of this Court in Hari Ram v. State of Rajasthan (2009) 13  SCC  211
authoritatively settles the legal position in that regard when it says:

           "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."




7.    Equally important is the fact that the jurisdiction of  the  Court  to
try the appellant, as indeed any other person accused of  commission  of  an
offence would have to be determined by reference to the legal position  that
prevailed as on the date  the  Court  tried,  convicted  and  sentenced  the
appellant.  It is common ground that as on the date  of  the  commission  of
the offence and  right  up  to  the  date  the  trial  Court  convicted  and
sentenced the appellant to imprisonment, the provisions of Juvenile  Justice
Act, 1986 (in short, the “1986 Act”) held the field.  Apart  from  the  fact
that the upper age limit for claiming juvenility was 16 years for boys,  the
question whether a person was or was not a juvenile could be decided by  the
Court on the  basis  of  documentary  or  medical  evidence  or  on  a  fair
assessment of both of them. That is because, the  provisions  of  1986  Act,
did not, prioritise the basis on which such determination could be made.  It
was left for the accused to produce  evidence  or  the  Court  to  direct  a
medical examination for determining his age.  The weightage which the  Rules
framed under the 2000 Act provide and the order of  preference  settled  for
purposes of placing reliance upon evidence  coming  from  different  sources
were not in vogue while the 1986 Act held the field.  The  result  was  that
the Court was free to determine the question on the basis of one such  piece
of evidence or on a cumulative effect and on such  evidence  that  may  have
been produced before it.  It is necessary to bear in mind this dichotomy  in
the legal framework while determining whether the trial Court had  committed
an error of jurisdiction in holding the appellant to be not a  juvenile  and
hence triable by it.

8.    The question whether the appellant was a  juvenile  was  first  raised
before the trial Court at a very early stage of  the  case.   The  appellant
had prayed for bail on that basis, which appears to have led  the  Court  to
direct assessment of his age on the basis of  a  medical  examination.   The
medical examination, however, determined the age of the appellant to  be  17
years, which took him beyond the upper age  of  juvenility  under  the  1986
Act.  What is noteworthy is that no attempt was made  by  the  appellant  to
adduce any evidence to support his claim of being a  juvenile  nor  was  any
documentary  evidence  in  the  form  of  school  certificate  or  otherwise
adduced.  As a matter of fact the chapter was  totally  forgotten,  and  the
trial allowed to proceed to its logical  conclusion  without  the  appellant
raising his little finger against the competence of the Court  or  agitating
the issue regarding his  age  in  any  higher  forum.   The  conviction  and
sentence recorded by the trial Court was also assailed on merits before  the
High Court but not on the ground that the trial was vitiated on  account  of
the appellant being a juvenile, not triable by an ordinary  criminal  Court.
It was only in this Court that long after the appeal was filed that a  fresh
claim for benefit under the 2000 Act was made  by  the  appellant  in  which
this Court directed a fresh enquiry that was conducted in terms of  Rule  12
of the Rules framed under the  2000  Act.    The  enquiry  report  submitted
supports the appellant’s claim of his being a juvenile  under  Section  2(k)
of the 2000 Act, hence, entitled  to  the  benefits  admissible  thereunder.
Although an attempt was made by the respondent-State to assail  the  finding
that the appellant was less than  18  years  of  age  on  the  date  of  the
occurrence, we do not see any cogent reason to hold that the  appellant  was
more than 18 years  on  the  date  of  the  occurrence.   In  my  view,  the
determination of age of the appellant, by the trial Court, on the  basis  of
the first medical examination is fully supported  and  corroborated  by  the
medical examination of the appellant conducted in the course of the  enquiry
directed by this Court by our order dated 19th November, 2010.  The  medical
examination  conducted  by  the  Board  of  Doctors   has   determined   the
appellant’s age to be 40 years as on 24th December, 2010 which implies  that
he was around 17 ½ years old on the date of the occurrence.   Superadded  to
the medical evidence is the documentary evidence that has come to  light  in
the course of the enquiry in the form of  the  Family  Register  (Ex.  Ka-3)
maintained by the Panchayat and proved by A.P.W.2-Gokaran Nath Tiwari,  Gram
Panchayat Officer.  According to this witness who spoke from  the  register,
the appellant was born in the year 1969. The Electoral  roll  for  the  year
2009 for the constituency in  which  the  appellant’s  village  falls,  also
mentions this age to be 37 years, implying thereby that  he  was  around  17
years old on the date of the occurrence.  Deposition of the Gram Sabha  Head
examined as PW-12 in the course of the enquiry is supportive of the  age  of
the appellant as given in the Electoral roll. The two  medical  examinations
and the documents referred to  above  come  from  proper  custody  and  lend
complete corroboration to the appellant’s age being above 16  years  on  the
date of the occurrence.  Besides, what cannot be  lightly  brushed  away  is
the fact that the appellant was a married man on the date of the  occurrence
and that the charge levelled against him was one  of  dowry  harassment  and
dowry death of his wife who was 19 years old at the time of her demise.   If
the appellant was only 13 years and 8 months old as suggested by the  school
certificate the question of his harassing the deceased almost six years  his
senior would not arise for he would be only an adolescent  while  his  wife-
the deceased was a grown up girl who could hardly get  harassed  by  a  mere
child so young in age that he had barely cut his  teeth.   The  trial  Court
did not in that  view  commit  any  error  of  jurisdiction  in  trying  the
appellant for the offences alleged against him.




9.    The upshot of the above discussion is that  while  the  appellant  was
above 16 years of age on the date of the commission of the offence,  he  was
certainly below 18 years and hence entitled to the benefit of the 2000  Act,
no matter the later enactment was not on the statute book  on  the  date  of
the occurrence.  The difficulty arises when we  examine  whether  the  trial
and the resultant order of conviction of the appellant, would  also  deserve
to be set aside as illegal and without jurisdiction.  The conviction  cannot
however be set aside for more than one reason.  Firstly  because  there  was
and is no challenge to the order of conviction recorded by the Courts  below
in this case either before the High Court or before  us.   As  a  matter  of
fact the plea of juvenility before  this  Court  by  way  of  an  additional
ground stopped short of challenging the conviction of the appellant  on  the
ground that the Court concerned had no jurisdiction to try the appellant.

10.   Secondly because the fact situation in the case at  hand  is  that  on
the date of the occurrence i.e. on 24th May, 1988 the  appellant  was  above
16 years of age.  He was, therefore, not a juvenile under the 1986 Act  that
covered the field at that point of time, nor did the 1986  Act  deprive  the
trial Court of its jurisdiction to try the appellant for the offence he  was
charged with.  Repeal of the 1986 Act by the 2000  Act  raised  the  age  of
juvenility to 18 years.  Parliament provided for  cases  which  were  either
pending trial or were, after conclusion of  the  trial,  pending  before  an
appellate or a revisional Court by  enacting  Section  20  of  the  Juvenile
Justice (Care and Protection) Act, 2000 which is to the following effect:


           “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 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.”



11.   A plain reading of the above brings into  bold  relief  the  following
features that have a significant bearing on the controversy at hand:

      (i)   The provision starts with a non-obstante clause,  which  implies
           that the provisions have  an  overriding  effect  on  all  other
           provisions contained in the enactment.

      (ii)  The provision deals with proceedings pending against a  juvenile
           in any court.

      (iii)  The  provision  sanctions  the  continuance  of  such   pending
           proceedings in the very same court, as if the 2000 Act  had  not
           been enacted.

      (iv)  The provision requires the Court seized of the matter to  record
           a finding as to whether the juvenile has committed an offence.

      (v)   If the finding is against the juvenile in that he  is  found  to
           have committed an offence, the court  is  required  to  forebear
           from passing an  order  of  sentence  and  instead  forward  the
           juvenile to the  Board,  which  shall  then  pass  an  order  in
           accordance with the provisions of the Act, as  if  it  had  been
           satisfied on  inquiry  under  the  Act  that  the  juvenile  had
           committed an offence.

      (vi)  In all pending cases including trial, revision,  appeal  or  any
           other criminal proceedings the determination of juvenility shall
           be in terms of clause (l) of Section  2  even  if  the  juvenile
           ceases to be so on or before the date  of  commencement  of  the
           2000 Act.

12.   It is manifest, that a  case  that  was  pending  before  ‘any  Court’
(which expression would include both the trial Court  and  the  High  Court)
would continue in that Court, who would not  only  proceed  with  the  trial
and/or hearing of the case as if the 2000 Act was not on  the  Statute  book
but also record a finding as to the guilt  or  innocence  of  the  juvenile.
Far from stipulating a specific prohibition, the provisions of  Section  20,
make it obligatory for the Court concerned to proceed with  the  matter  and
record its conclusion as to the guilt or otherwise  of  the  juvenile.   The
prohibition is against the Court passing an order of  sentence  against  the
juvenile, for which purpose the juvenile has to be forwarded  to  the  Board
for appropriate orders.  That is precisely the view  which  this  Court  has
taken in a line of decisions to which I may briefly refer at this stage.

13.   In Pratap Singh v. State of Jharkhand and Anr. (2005) 3 SCC 551,  this
Court while interpreting the provisions of Section 20 (supra) held that  the
same is attracted to cases where the person, if male, has  ceased  to  be  a
juvenile under the 1986 Act being more than 16 years of age but had not  yet
crossed the age of 18 years. Such cases alone were within the  comprehension
of Section 20 of the Act, observed the Court, in which the Court  seized  of
the matter was bound to record its conclusion, as to the guilt or  innocence
of the accused.  The Court said:
           “30. Section 20 of the  Act  as  quoted  above  deals  with  the
           special provision in respect of pending cases  and  begins  with
           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 date of 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 is 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 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.”

                                              (emphasis supplied)




14.   To the same effect is the decision of this Court in Bijender Singh  v.
State of Haryana and Anr. (2005) 3 SCC 685, where this Court reiterated  the
legal position as to the true purpose of Section 20 in the following words:

           “8. One of the basic distinctions between the 1986 Act  and  the
           2000 Act relates to age of males and  females.  Under  the  1986
           Act, a juvenile means a male juvenile who has not  attained  the
           age of 16 years, and a female juvenile who has not attained  the
           age of 18 years. In the 2000 Act, the distinction  between  male
           and  female  juveniles  on  the  basis  of  age  has  not   been
           maintained. The  age-limit  is  18  years  for  both  males  and
           females.

           9. 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 2000 Act must be answered having regard to  the  object  and
           purport thereof.

           10. In terms of the 1986 Act, a  person  who  was  not  juvenile
           could be tried in any court. Section 20 of the  2000  Act  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 Juvenile Justice Board (in short the  'Board')  which  shall
           pass orders in accordance with the provisions of the Act  as  if
           it has been satisfied on inquiry that a juvenile  has  committed
           the offence. A legal fiction has, thus, been created in the said
           provision...
           xx xx xx

           12. 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.”

                             (emphasis supplied)



15.   Reference may also be made to the decision of this Court in  Dharambir
v. State (NCT of Delhi) (2010)  5 SCC  344 where too this Court  interpreted
Section 20 of the Act, and the explanation appended to the same, to  declare
that the provision enables the Court to  determine  the  juvenility  of  the
accused even after conviction and while maintaining the  conviction  to  set
aside the sentence imposed upon him and to forward the  case  to  the  Board
for passing an appropriate order in accordance with the  provisions  of  the
Act.  This Court observed:

           “11. It is plain from the language of the Explanation to Section
           20 that in all pending  cases,  which  would  include  not  only
           trials but even subsequent proceedings by  way  of  revision  or
           appeal, etc., the determination of juvenility of a juvenile  has
           to be in terms of Clause (l) of Section 2, even if the  juvenile
           ceases to be a juvenile on or before 1st April, 2001,  when  the
           Act of 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. Clause (l) of Section 2 of the Act of  2000  provides
           that "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. Section 20 also  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 aside the sentence  imposed  and  forward
           the case to the Juvenile Justice  Board  concerned  for  passing
           sentence in accordance with the provisions of the Act of 2000.”




16.   Two recent decisions of this Court are a timely reminder of the  legal
position on the subject to which I may gainfully refer at  this  stage.   In
Daya Nand v. State of Haryana (2011) 2 SCC 224, this Court,  reiterated  the
law on the subject in the following words.

           “11. The Juvenile Justice Act, 1986 was replaced by the Juvenile
           Justice (Care and Protection of Children) Act,  2000  that  came
           into force on April 1, 2001. The 2000 Act defined  `juvenile  or
           child' in Section 2(k)to mean a person  who  has  not  completed
           eighteenth years of age. Section 69 of the  2000  Act,  repealed
           the Juvenile Justice Act, 1986. The 2000 Act, in Section 20 also
           contained a provision in regard to cases that were pending  when
           it came into force and in which  the  accused  at  the  time  of
           commission of offence was  below  18  years  of  age  but  above
           sixteen years of age (and hence, not a juvenile under  the  1986
           Act) and consequently who was being tried not before a  juvenile
           court but a regular court.”

                             (emphasis supplied)




17.   Similarly in Kalu @ Amit v. State of Haryana (2012)  8  SCC  34,  this
Court summed up the law in the following passage:

           “16. Section 20 makes a special provision in respect of  pending
           cases. It states that notwithstanding anything contained in  the
           Juvenile Act, all proceedings in respect of a  juvenile  pending
           in any court in any area on the date on which Juvenile Act comes
           into force in that area shall be continued in that court  as  if
           the Juvenile 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 the Juvenile Act as if it had  been  satisfied  on
           inquiry under the Juvenile Act that the juvenile  has  committed
           the offence. The Explanation to Section 20 makes it  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 1/4/2001, when the Juvenile Act came  into
           force, and the provisions of the Juvenile 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...”




18.   The settled legal position, therefore,  is  that  in  all  such  cases
where the accused was above 16 years but below 18 years of age on  the  date
of occurrence, the proceedings pending in the Court concerned will  continue
and be taken to their logical end except that the  Court  upon  finding  the
juvenile guilty would not pass an order of sentence  against  him.   Instead
he shall be referred to the Board for  appropriate  orders  under  the  2000
Act.  Applying that proposition to the case at hand the trial Court and  the
High Court could and indeed were legally required to record a finding as  to
the guilt or otherwise of the appellant.  All  that  the  Courts  could  not
have done was to pass an order of sentence, for which  purpose,  they  ought
to have referred the case to the Juvenile Justice Board.

19.   The matter can be examined from another angle. Section 7A (2)  of  the
Act prescribes the procedure to be followed when a claim  of  juvenility  is
made before any Court. Section 7A (2) is as under:

           “7A. Procedure to be followed when claim of juvenility  is  made
           before any court .- (1) xxx xxx

           (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 orders
           and the sentence, if any, passed by a court shall be  deemed  to
           have no effect.”




20.   A careful reading of the above would show that  although  a  claim  of
juvenility can be raised by a person at any  stage  and  before  any  Court,
upon such Court finding the person to be a  juvenile  on  the  date  of  the
commission of the offence, it has to forward the juvenile to the  Board  for
passing appropriate orders and the sentence, if any, passed shall be  deemed
to have effect. There is no provision  suggesting,  leave  alone  making  it
obligatory for the Court before whom the claim for juvenility  is  made,  to
set aside the conviction of the juvenile on the ground that on the  date  of
commission of the offence he was a juvenile, and hence  not  triable  by  an
ordinary criminal court. Applying the maxim of expressio unius est  exclusio
alterious, it would be reasonable to hold that the  law  in  so  far  as  it
requires a  reference  to  be  made  to  the  Board  excludes  by  necessary
implication any intention on the  part  of  the  legislature  requiring  the
Courts to set  aside  the  conviction  recorded  by  the  lower  court.  The
Parliament, it appears, was content  with  setting  aside  the  sentence  of
imprisonment awarded to the juvenile and making of a reference to the  Board
without specifically or by implication  requiring  the  court  concerned  to
alter or set aside the conviction. That  perhaps  is  the  reason  why  this
Court has in several decisions simply set aside the sentence awarded to  the
juvenile without interfering with  the  conviction  recorded  by  the  court
concerned and thereby complied with the mandate  of  Section  7A(2)  of  the
Act.

21.   In Kalu @ Amit’s case (supra),  the  plea  of  juvenility  was  raised
before this Court for the first time as is the position in the present  case
also. This Court while  dealing  with  the  options  available  noticed  the
absence of plea on the ground of juvenility and held that  even  if  such  a
plea had been raised before the High Court, the High Court  would  have  had
to record its finding that Kalu @ Amit was guilty, confirm  his  conviction,
set aside the sentence and forward the case to  the  Board  for  passing  an
order under Section 15 of the Juvenile Act.  The Court observed:

           “24. The instant offence took place  on  7-4-1999.  As  we  have
           already noted Kalu alias Amit was a juvenile on  that  date.  He
           was convicted by the trial court on 7-9-2000. The  Juvenile  Act
           came into force on 1-4-2001. The appeal of Kalu alias  Amit  was
           decided by the High Court  on  11-7-2006.  Had  the  defence  of
           juvenility been raised before the High Court and the  fact  that
           Kalu alias Amit was a juvenile at the time of commission of  the
           offence has come to light the  High  Court  would  have  had  to
           record its finding that Kalu alias Amit was guilty, confirm  his
           conviction, set aside the sentence and forward the case  to  the
           Board and the Board would  have  passed  any  appropriate  order
           permissible under Section 15  of  the  Juvenile  Act  (see  Hari
           Ram).”



22.   That procedure has been followed in several  other  cases  where  this
Court has, after holding the accused to be a juvenile as on the date of  the
commission of offence,  set  aside  the  sentence  awarded  to  him  without
interfering with the order of conviction.  (See: Pradeep  Kumar  &  Ors.  v.
State of U.P. 1995 Supp (4) SCC 419, Bhola Bhagat & Ors. v. State  of  Bihar
(1997) 8 SCC 720, Upendra Kumar v. State of Bihar (2005) 3 SCC  592,  Vaneet
Kumar Gupta @ Dharmindher v. State of Punjab (2009) 17 SCC 587).

23.   In the totality of the above circumstances, there  is  no  reason  why
the conviction of the appellant should be interfered  with,  simply  because
he is under the 2000 Act  a  juvenile  entitled  to  the  benefit  of  being
referred to the Board for an order under Section 15 of the said Act.   There
is no gainsaying that even if the  appellant  had  been  less  than  sixteen
years of age, on the date of the occurrence, he  would  have  been  referred
for trial to the Juvenile Court in terms of Section 8 of the 1986  Act.  The
Juvenile Court would then hold a trial and record a conviction or  acquittal
depending upon the evidence adduced before it. In an ideal situation a  case
filed before an ordinary Criminal  Court  when  referred  to  the  Board  or
Juvenile Court may culminate in a conviction  at  the  hands  of  the  Board
also.  But law does not countenance a situation where a  full-fledged  trial
and even an appeal ends in a conviction of the accused but the same  is  set
aside without providing for a trial by the Board.
24.   With the above observations,  I  agree  with  the  Order  proposed  by
brother Lokur, J.


                                                          ………………….……….…..…J.
                                         (T.S. Thakur)
New Delhi
July 10, 2013

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