REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1193 OF 2006
Abuzar Hossain @ Gulam Hossain …. Appellant
Versus
State of West Bengal
….Respondent
WITH
CRIMINAL APPEAL NO. 1397 OF 2003
SLP (Crl.) NO. 1451 OF 2003
R.P. (Criminal) No. 390 OF 2010 IN SLP(Crl.) No. 2542 OF 2010
SLP(Crl.) NO. 8768 OF 2011
SLP(Crl.) NO. 8855 OF 2011
CRIMINAL APPEAL NO. 654 OF 2002
SLP (Crl.) No. 616 OF 2012
JUDGMENT
R.M. Lodha, J.
Delinquent juveniles need to be dealt with differently from
adults. International covenants and domestic laws in various countries
have prescribed minimum standards for delinquent juveniles and
juveniles in conflict with law. These standards provide what
orders may be passed regarding delinquent juveniles and the
orders that may not be passed against them. This group of matters
raises the question of when should a claim of juvenility be recognised and
sent for determination when it is raised for the first time in appeal or
before this Court or raised in trial and appeal but not pressed and then
pressed for the first time before this Court or even raised for the first
time after final disposal of the case.
2. It so happened that when criminal appeal preferred by Abuzar
Hossain @ Gulam Hossain came up for consideration before a two-Judge Bench
(Harjit Singh Bedi and J.M. Panchal, JJ) on 10.11.2009, on behalf of the
appellant, a plea of juvenility on the date of incident was raised. In
support of the contention that the appellant was juvenile on the date of
incident and as such he could not have been tried in a normal criminal
court, reliance was placed on a decision of this Court in Gopinath Ghosh v.
State of West Bengal[1]. On the other hand, on behalf of the respondent,
State of West Bengal, in opposition to that plea, reliance was placed on a
later decision of this Court in Akbar Sheikh and others v. State of West
Bengal[2]. The Bench found that there was substantial discordance in the
approach of the matter on the question of juvenility in Gopinath Ghosh1 on
the one hand and the two decisions of this Court in Akbar Sheikh2 and Hari
Ram v. State of Rajasthan and Another[3]. The Bench was of the opinion that
as the issue would arise in a very large number of cases, it was required
to be referred to a larger Bench as the judgment in Akbar Sheikh2 and
Gopinath Ghosh1 had been rendered by co-ordinate Benches of this Court.
This is how these matters have come up before us.
3. The Parliament felt it necessary that uniform juvenile justice
system should be available throughout the country which should make
adequate provision for dealing with all aspects in the changing social,
cultural and economic situation in the country and there was also need for
larger involvement of informal systems and community based welfare agencies
in the care, protection, treatment, development and rehabilitation of such
juveniles and with these objectives in mind, it enacted Juvenile Justice
Act, 1986 (for short, ‘1986 Act’).
4. 1986 Act was replaced by the Juvenile Justice (Care and
Protection of Children) Act, 2000 (for short, ‘2000 Act’). 2000 Act has
been enacted to carry forward the constitutional philosophy engrafted in
Articles 15(3), 39(e) and (f), 45 and 47 of the Constitution and also
incorporate the standards prescribed in the Convention on the Rights of the
Child, United Nations Standard Minimum Rules for the Administration of
Juvenile Justice, 1985, the United Nations Rules for the Protection of
Juveniles Deprived of their Liberty (1990) and all other relevant
international instruments. Clause (k) of Section 2 defines “juvenile” or
“child” to mean a person who has not completed eighteenth year of age.
Clause (l) of Section 2 defines “juvenile in conflict with law” to mean a
juvenile who is alleged to have committed an offence and has not completed
eighteenth year of age on the date of commission of such offence.
5. Section 3 of 2000 Act provides for continuation of inquiry in
respect of juvenile who has ceased to be a juvenile. It reads as under:
“S.3 . Continuation of inquiry in respect of juvenile who has
ceased to be a juvenile.—Where an inquiry has been initiated
against a juvenile in conflict with law or a child in need of
care and protection and during the course of such inquiry the
juvenile or the child ceases to be such, then, notwithstanding
anything contained in this Act or in any other law for the time
being in force, the inquiry may be continued and orders may be
made in respect of such person as if such person had continued
to be a juvenile or a child.”
6. Chapter II of 2000 Act deals with juvenile in conflict with
law. This Chapter comprises of Sections 4 to 28. Section 4 provides for
constitution of juvenile justice board and its composition. Section 5
provides for procedure, etc. in relation to juvenile justice board. Section
6 deals with the powers of juvenile justice board. Section 6 reads as under
:
“S.6 . Powers of Juvenile Justice Board.—(1) Where a Board has
been constituted for any district, such Board shall,
notwithstanding anything contained in any other law for the time
being in force but save as otherwise expressly provided in this
Act, have power to deal exclusively with all proceedings under
this Act relating to juvenile in conflict with law.
(2) The powers conferred on the Board by or under this Act may
also be exercised by the High Court and the Court of Session,
when the proceeding comes before them in appeal, revision or
otherwise.”
7. By Act 33 of 2006, the Parliament brought in significant
changes in 2000 Act. Inter alia, Section 7A came to be inserted. This
Section is lynchpin around which the debate has centered around in these
matters. Section 7A provides for procedure to be followed when claim of
juvenility is raised before any court. It reads as follows:
“S.7A. Procedure to be followed when claim of juvenility is
raised before any court.—(1) Whenever a claim of juvenility is
raised before any court or a court is of the opinion that an
accused person was a juvenile on the date of commission of the
offence, the court shall make an inquiry, take such evidence as
may be necessary (but not an affidavit) so as to determine the
age of such person, and shall record a finding whether the
person is a juvenile or a child or not, stating his age as
nearly as may be:
Provided that a claim of juvenility may be raised before any
court and it shall be recognised at any stage, even after final
disposal of the case, and such claim shall be determined in
terms of the provisions contained in this Act and the rules made
thereunder, even if the juvenile has ceased to be so on or
before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date
of commission of the offence under sub-section (1), it shall
forward the juvenile to the Board for passing appropriate orders
and the sentence, if any, passed by a court shall be deemed to
have no effect.”
8. Section 49 of 2000 Act deals with presumption and determination
of age. This Section reads as under:
“49 . Presumption and determination of age.—(1) Where it
appears to a competent authority that person brought before it
under any of the provisions of this Act (otherwise than for the
purpose of giving evidence) is a juvenile or the child, the
competent authority shall make due inquiry so as to the age of
that person and for that purpose shall take such evidence as may
be necessary (but not an affidavit)and shall record a finding
whether the person is a juvenile or the child or not, stating
his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have
become invalid merely by any subsequent proof that the person in
respect of whom the order has been made is not a juvenile or the
child, and the age recorded by the competent authority to be the
age of person so brought before it, shall for the purpose of
this Act, be deemed to be the true age of that person.”
9. Sections 52 and 53 deal with appeals and revision. Section 54
provides for procedure in inquiries, appeals and revision proceedings,
which reads as follows:
“S.54 . Procedure in inquiries, appeals and revision
proceedings.—(1)Save as otherwise expressly provided by this
Act, a competent authority while holding any inquiry under any
of the provisions of this Act, shall follow such procedure as
may be prescribed and subject thereto, shall follow, as far as
may be, the procedure laid down in the Code of Criminal
Procedure, 1973 (2 of 1974) for trials in summons cases.
(2) Save as otherwise expressly provided by or under this Act,
the procedure to be followed in hearing appeals or revision
proceedings under this Act shall be, as far as practicable, in
accordance with the provisions of the Code of Criminal
Procedure, 1973(2 of 1974).”
10. In exercise of powers conferred by the proviso to sub-section
(1) of Section 68 of the 2000 Act, the Central Government has framed the
rules entitled “The Juvenile Justice (Care and Protection of Children)
Rules, 2007” (for short, “2007 Rules”). The relevant rule for the purposes
of consideration of the issue before us is Rule 12 which provides for
procedure to be followed in determination of age. Since this Rule has a
direct bearing for consideration of the matter, it is quoted as it is. It
reads as under :
“R. 12. Procedure to be followed in determination of Age.—(1)
In every case concerning a child or a juvenile in conflict with
law, the court or the Board or as the case may be the Committee
referred to in rule 19 of these rules shall determine the age of
such juvenile or child or a juvenile in conflict with law within
a period of thirty days from the date of making of the
application for that purpose.
(2) The Court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of the
juvenile or the child or as the case may be the juvenile in
conflict with law, prima facie on the basis of physical
appearance or documents, if available, and send him to the
observation home or in jail.
(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall be
conducted by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining—
(a) (i) the matriculation or equivalent certificates,
if available; and in the absence whereof;
(ii) the date of birth certificate from the school
(other than a play school) first attended; and
in the absence whereof;
(iii) the birth certificate given by a corporation or
a municipal authority or a panchayat;
(b) and only in the absence of either (i),(ii) or (iii)
of clause (a) above, the medical opinion will be sought from a
duly constituted Medical Board, which will declare the age of
the juvenile or child. In case exact assessment of the age
cannot be done, the Court or the Board or, as the case may be,
the Committee, for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin of one
year.
and, while passing orders in such case shall, after taking
into consideration such evidence as may be available, or the
medical opinion, as the case may be, record a finding in respect
of his age and either of the evidence specified in any of the
clauses (a)(i),(ii), (iii) or in the absence whereof, clause (b)
shall be the conclusive proof of the age as regards such child
or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in
conflict with law is found to be below 18 years on the date of
offence, on the basis of any of the conclusion proof specified
in sub-rule (3), the Court or the Board or as the case may be
the Committee shall in writing pass an order stating the age and
declaring the status of juvenility or otherwise, for the purpose
of the Act and these rules and a copy of the order shall be
given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise
is required, inter alia, in terms of section 7A, section 64 of
the Act and these rules, no further inquiry shall be conducted
by the court or the Board after examining and obtaining the
certificate or any other documentary proof referred to in sub-
rule (3) of this rule.
(6) The provisions contained in this rule shall also
apply to those disposed of cases, where the status of juvenility
has not been determined in accordance with the provisions
contained in sub-rule (3) and the Act, requiring dispensation of
the sentence under the Act for passing appropriate order in the
interest of the juvenile in conflict with law.”
11. It is not necessary to refer to facts of criminal appeal
preferred by Abuzar Hossain @ Gulam Hossain or the other referred matters.
Suffice it to say that in criminal appeal of Abuzar Hossain @ Gulam
Hossain, in support of the argument that he was juvenile on the date of
incident and as such he could not have been tried in the normal criminal
court, his statement recorded under Section 313 of the Code of Criminal
Procedure, 1973 (for short, 'the Code’) was pressed into service. It was,
however, found from the evidence as well as the judgments of the trial
court and the High Court that the issue of juvenility was not pressed at
any stage and no evidence whatsoever was led by him to prove the age. It
was in the backdrop of these facts that Gopinath Ghosh1 was relied upon in
support of the proposition that notwithstanding the fact that the plea of
juvenility had not been pressed, it was obligatory on the court to go into
the question of juvenility and determine his age.
12. Gopinath Ghosh1 was a case where he was convicted along with
two others for an offence under Section 302 read with Section 34 of IPC and
sentenced to suffer imprisonment for life by the trial court. He and two co-
accused preferred criminal appeal before Calcutta High Court. In the
appeal, two accused were acquitted while the conviction and sentence of
Gopinath Ghosh was maintained. Gopinath Ghosh filed appeal by special leave
before this Court. On his behalf, the argument was raised that on the date
of offence, i.e. on 19.8.1974 he was aged below 18 years and he is
therefore a “child” within the meaning of the expression in the West Bengal
Children Act, 1959 and, therefore, the court had no jurisdiction to
sentence him to suffer imprisonment after holding a trial. Having regard to
the contention raised on behalf of the appellant, this Court framed an
issue for determination; what was the age of the accused Gopinath Ghosh
(appellant) on the date of offence for which he was tried and convicted?
The issue was remitted to the Sessions Judge, Nadia to ascertain his age
and submit the finding. The Additional Sessions Judge, First Court, Nadia,
accordingly, held an inquiry and after recording the evidence and calling
for medical report and after hearing parties certified that Gopinath Ghosh
was aged between 16 and 17 years on the date of the offence. The finding
sent by the Additional Sessions Judge was not questioned before this Court.
The Court examined the scheme of West Bengal Children Act, 1959 and also
noted Section 24 thereof which had an overriding effect taking away the
power of the court to impose the sentence of imprisonment unless the case
was covered by the proviso thereto. Then in paragraph 10 (pg. 231) of the
Report, this Court held as under:
“10. Unfortunately, in this case, appellant Gopinath Ghosh never
questioned the jurisdiction of the Sessions Court which tried
him for the offence of murder. Even the appellant had given his
age as 20 years when questioned by the learned Additional
Sessions Judge. Neither the appellant nor his learned counsel
appearing before the learned Additional Sessions Judge as well
as at the hearing of his appeal in the High Court ever
questioned the jurisdiction of the trial court to hold the trial
of the appellant, nor was it ever contended that he was a
juvenile delinquent within the meaning of the Act and therefore,
the Court had no jurisdiction to try him, as well as the Court
had no jurisdiction to sentence him to suffer imprisonment for
life. It was for the first time that this contention was raised
before this Court. However, in view of the underlying intendment
and beneficial provisions of the Act read with clause (f) of
Article 39 of the Constitution which provides that the State
shall direct its policy towards securing that children are given
opportunities and facilities to develop in a healthy manner and
in conditions of freedom and dignity and that childhood and
youth are protected against exploitation and against moral and
material abandonment, we consider it proper not to allow a
technical contention that this contention is being raised in
this Court for the first time to thwart the benefit of the
provisions being extended to the appellant, if he was otherwise
entitled to it.”
13. In paragraph 13 (pgs. 232-233) of the Report, the Court
observed as under:
“13. Before we part with this judgment, we must take notice of a
developing situation in recent months in this Court that the
contention about age of a convict and claiming the benefit of
the relevant provisions of the Act dealing with juvenile
delinquents prevalent in various States is raised for the first
time in this Court and this Court is required to start the
inquiry afresh. Ordinarily this Court would be reluctant to
entertain a contention based on factual averments raised for the
first time before it. However, the Court is equally reluctant to
ignore, overlook or nullify the beneficial provisions of a very
socially progressive statute by taking shield behind the
technicality of the contention being raised for the first time
in this Court. A way has therefore, to be found from this
situation not conducive to speedy disposal of cases and yet
giving effect to the letter and the spirit of such socially
beneficial legislation. We are of the opinion that whenever a
case is brought before the Magistrate and the accused appears to
be aged 21 years or below, before proceeding with the trial or
undertaking an inquiry, an inquiry must be made about the age of
the accused on the date of the occurrence. This ought to be more
so where special Acts dealing with juvenile delinquent are in
force. If necessary, the Magistrate may refer the accused to the
Medical Board or the Civil Surgeon, as the case may be, for
obtaining creditworthy evidence about age. The Magistrate may as
well call upon accused also to lead evidence about his age.
Thereafter, the learned Magistrate may proceed in accordance
with law. This procedure, if properly followed, would avoid a
journey upto the Apex Court and the return journey to the grass-
root court. If necessary and found expedient, the High Court may
on its administrative side issue necessary instructions to cope
with the situation herein indicated.”
14. In Bhoop Ram v. State of U.P.[4], a two-Judge Bench of this
Court was concerned with the question as to whether the appellant Bhoop Ram
should have been treated as a “child” within the meaning of Section 2(4) of
the U.P. Children Act, 1951 and sent to an approved school for detention
therein till he attained the age of 18 years instead of being sentenced to
undergo imprisonment in jail. In Bhoop Ram4, the Chief Medical Officer,
Bareilly gave a certificate that as per the radiology examination and
physical features, he appeared to be 30 years of age as on 30.4.1987. Bhoop
Ram did not place any other material before the Sessions Judge except the
school certificate to prove that he had not completed 16 years on the date
of commission of the offences. The Sessions judge rejected the school
certificate produced by him on the ground that “it is not unusual that in
schools ages are understated by one or two years for future benefits”. As
regards medical certificate the Sessions Judge observed that as he happened
to be about 28-29 years of age on 1.6.1987, he would have completed 16
years on the date of occurrence. Before the Court, on behalf of the
appellant, Bhoop Ram, it was contended that school certificate produced by
him contained definite information regarding date of birth and that should
have prevailed over the certificate of the doctor and the Sessions Judge
committed wrong in doubting the correctness of the school certificate. This
Court on consideration of the matter held that appellant Bhoop Ram could
not have completed 16 years of age on 3.10.1975 when the occurrence took
place and as such he ought to have been treated as “child” within the
meaning of Section 2(4) of the U.P. Children Act, 1951 and dealt with under
Section 29 of the Act. The Court gave the following reasons for holding
appellant, Bhoop Ram, a “child” on the date of occurrence of the incident:
“7. …….The first is that the appellant has produced a school
certificate which carries the date 24-6-1960 against the column
“date of birth”. There is no material before us to hold that the
school certificate does not relate to the appellant or that the
entries therein are not correct in their particulars. The
Sessions Judge has failed to notice this aspect of the matter
and appears to have been carried away by the opinion of the
Chief Medical Officer that the appellant appeared to be about 30
years of age as on 30-4-1987. Even in the absence of any
material to throw doubts about the entries in the school
certificate, the Sessions Judge has brushed it aside merely on
the surmise that it is not unusual for parents to understate the
age of their children by one or two years at the time of their
admission in schools for securing benefits to the children in
their future years. The second factor is that the Sessions Judge
has failed to bear in mind that even the trial Judge had thought
it fit to award the lesser sentence of imprisonment for life to
the appellant instead of capital punishment when he delivered
judgment on 12-9-1977 on the ground the appellant was a boy of
17 years of age. The observation of the trial Judge would lend
credence to the appellant's case that he was less than 10 (sic
16) years of age on 3-10-1975 when the offences were committed.
The third factor is that though the doctor has certified that
the appellant appeared to be 30 years of age as on 30-4-1987,
his opinion is based only on an estimate and the possibility of
an error of estimate creeping into the opinion cannot be ruled
out. As regards the opinion of the Sessions Judge, it is mainly
based upon the report of the Chief Medical Officer and not on
any independent material. On account of all these factors, we
are of the view that the appellant would not have completed 16
years of age on the date the offences were committed……..”
15. A three-Judge Bench of this Court in Pradeep Kumar v. State of
U.P.[5] was concerned with the question whether each of the appellants
was a “child” within the meaning of Section 2(4) of the U.P. Children Act,
1951 and as such on conviction under Section 302/34 IPC, they should have
been sent to approved school for detention till the age of 18 years. The
Court dealt with the matter in its brief order thus:
“2. At the time of granting special leave, Jagdish appellant
produced High School Certificate, according to which he was
about 15 years of age at the time of occurrence. Appellant
Krishan Kant produced horoscope which showed that he was 13
years of age at the time of occurrence. So far as appellant
Pradeep is concerned a medical report was called for by this
Court which disclosed that his date of birth as January 7, 1959
was acceptable on the basis of various tests conducted by the
medical authorities.
3. It is thus proved to the satisfaction of this Court that on
the date of occurrence, the appellants had not completed 16
years of age and as such they should have been dealt with under
the U.P. Children Act instead of being sentenced to imprisonment
on conviction under Section 302/34 of the Act.”
16. The above three decisions came up for consideration before this
Court in Bhola Bhagat v. State of Bihar[6]. The plea raised on behalf of
the appellants that they were ‘children’ as defined in the Bihar Children
Act, 1970 on the date of occurrence and their trial along with adult
accused by the criminal court was not in accordance with law was rejected
by the High Court observing that except for the age given by the appellants
and the estimate of the court at the time of their examination under
Section 313 of the Code, there was no other material in support of the
appellants’ claim that they were below 18 years of age. This Court flawed
the approach of the High Court and observed as follows :
“8. To us it appears that the approach of the High Court in
dealing with the question of age of the appellants and the
denial of benefit to them of the provisions of both the Acts was
not proper. Technicalities were allowed to defeat the benefits
of a socially-oriented legislation like the Bihar Children Act,
1982 and the Juvenile Justice Act, 1986. If the High Court had
doubts about the correctness of their age as given by the
appellants and also as estimated by the trial court, it ought to
have ordered an enquiry to determine their ages. It should not
have brushed aside their plea without such an enquiry.”
17. Gopinath Ghosh1, Bhoop Ram4 and Pradeep Kumar5 were elaborately
considered in paragraphs 10, 11 and 12 of the Report. The Court also
considered a decision of this Court in State of Haryana v. Balwant Singh[7]
and held that the said decision was not a good law. In paragraph 15 of the
Report, the Court followed the course adopted in Gopinath Ghosh1 , Bhoop
Ram4 and Pradeep Kumar5 and held as under :
“15. The correctness of the estimate of age as given by the
trial court was neither doubted nor questioned by the State
either in the High Court or in this Court. The parties have,
therefore, accepted the correctness of the estimate of age of
the three appellants as given by the trial court. Therefore,
these three appellants should not be denied the benefit of the
provisions of a socially progressive statute. In our considered
opinion, since the plea had been raised in the High Court and
because the correctness of the estimate of their age has not
been assailed, it would be fair to assume that on the date of
the offence, each one of the appellants squarely fell within the
definition of the expression “child”. We are under these
circumstances reluctant to ignore and overlook the beneficial
provisions of the Acts on the technical ground that there is no
other supporting material to support the estimate of ages of the
appellants as given by the trial court, though the correctness
of that estimate has not been put in issue before any forum…..”.
18. Mr. Pradip Kr. Ghosh, learned senior counsel for the appellant
Abuzar Hossain @ Gulam Hossain, relying heavily upon the above cases,
submitted that what was earlier established by judicial interpretation in
Gopinath Ghosh1, Bhoop Ram4 and Pradeep Kumar5 became the statutory law
with the enactment of Section 7A of 2000 Act and Rule 12 of the 2007 Rules
and in view thereof a different approach is required with regard to the
delinquent juveniles as and when plea of juvenility is raised before the
court. Learned senior counsel would submit that the courts have to ensure
that the beneficial provisions contained in Section 7A and Rule 12 are
not frustrated by procedural rigidity. It was submitted that while enacting
Section 7A, the Legislature has taken note of socio-economic ground
realities of the country and had kept in view juveniles who come from
amongst the poorest of the poor, slum dwellers, street dwellers and some of
those having no shelter, no means of sustenance and for whom it would be a
far cry to have any documents as they would have neither any schooling nor
any birth registration. The law has to be applied in the manner so that
its benefits are made available to all those who are entitled to it. He
contended that the very fact that Rule 12 provided for every possible
opportunity to establish the juvenility and when everything fails there is
the mandate of holding the medical examination of the delinquent, shows the
legislative intent.
19. Mr. Pradip Kr. Ghosh, learned senior counsel also submitted
that the law with regard to juvenile delinquents by insertion of Section 7A
has been given retrospective effect and made applicable even after disposal
of the case and, therefore, in all such cases, those who had no occasion to
claim the benefit of juvenility in the past deserve fresh opportunity to be
given and they should be allowed to produce such materials afresh as may be
available in support of the claim. He submitted that a purposive
interpretation to Section 7A and Rule 12 must be given to bring within
their fold not only documents which are contemplated in terms of sub-rule
(3) of Rule 12 but also cases in which no such document is available but if
the accused is referred to a medical board, his age would eventually be
found to be such as would make him a juvenile.
20. Mr. Pradip Kr. Ghosh, learned senior counsel did not dispute
that for the purpose of making a claim with regard to juvenility, the
delinquent has to produce some material in support of his claim and in the
absence of any documentary evidence, file at least a supporting affidavit
affirmed by one of his parents or an elder sibling or other relation who is
competent to depose as to his age so as to make the court to initiate an
inquiry under Rule 12(3). He did concede that a totally frivolous claim of
juvenility which on the face of it is patently absurd and inherently
improper may not be entertained by the court but at the same time the court
must not be hyper-technical and must ensure that beneficial provision is
not defeated by undue technicalities.
21. Learned senior counsel submitted that the statement under
Section 313 of the Code or the voters’ list may not be decisive but the
documents of such nature may be adequate for the court to initiate an
inquiry in terms of Rule 12(3). According to him, what is decisive is the
result of the inquiry under Rule 12(3). However, semblance of material
must justify an order to cause an inquiry to be made to determine the claim
of juvenility.
22. Mr. Abhijit Sengupta, learned counsel for the State of West
Bengal, submitted that although the provisions of 2000 Act as amended in
2006, and the Rules must be given full effect as these are beneficial
provisions for the benefit of juveniles, but at the same time this Court
must ensure that the provisions are not abused and a floodgate of cases
does not start. He submitted that in Pawan v. State of Uttaranchal[8], a 3-
Judge Bench of this Court had emphasized on the need for satisfactory,
adequate and prima facie material before an inquiry under Rule 12 could be
commenced and the law laid down in Pawan8 must be followed as and when
claim of juvenility is raised before this Court. He submitted that claim of
juvenility must be credible before ordering an inquiry under Rule 12.
23. Mr. Nagendra Rai, learned senior counsel for the petitioner in
the connected Special Leave Petition being SLP (Criminal) No. 616 of 2012,
Ram Sahay Rai v. State of Bihar submitted that by amendment brought in
2006, 2000 Act has been drastically amended. The Legislature by bringing in
Section 7A has clearly provided that the claim of juvenility may be raised
before any court and it shall be recognised at any stage, even after the
final disposal of the case and such claim shall be determined in terms of
the provisions contained in 2000 Act and the Rules made thereunder, even if
the juvenile has ceased to be so on or before the commencement of the Act.
He would submit that even if the question of juvenility had not been raised
by the juvenile even upto this Court and there is some material to show
that a person is a juvenile on the date of commission of crime, it can be
recognised at any stage even at the stage of undergoing sentence. He agreed
that inquiry cannot be initiated on the basis of mere assertion of the
claim. There must be prima facie material to initiate the inquiry and
once the prima facie test is satisfied, the determination may be made in
terms of Rule 12. With reference to Rule 12, learned senior counsel would
submit that appearance, documents and medical evidence are the only
materials which are relevant for determining the age and as such only such
materials should form the basis for forming an opinion about the prima
facie case. The oral evidence should rarely form the basis for initiation
of proceeding as in view of Rule 12, the said material can never be used in
inquiry and thus forming an opinion on that oral evidence will not serve
the purposes of the Act.
24. Learned counsel for the State of Bihar on the other hand
submitted that Legislature never intended to make Section 7A applicable to
this Court after the final disposal of the case. He submitted that there
was no provision in the Supreme Court Rules to re-open the concluded
appeals or SLPs. Moreover, when SLP is filed, it is mandatory that no new
ground or document shall be relied upon which has not been the part of
record before the High Court and, therefore, if plea of juvenility has not
been raised before the High Court, it cannot be raised before this Court.
According to him, the power under the 2000 Act can be exercised only by the
Juvenile Board, Sessions Court or High Court after final disposal of the
case but not this Court. He, however, submitted that the Supreme Court in
exercise of its power under Article 142 may remand the matter to such
forums, if it appears expedient in the interest of justice.
25. The amendment in 2000 Act by the Amendment Act, 2006,
particularly, introduction of Section 7A and subsequent introduction of
Rule 12 in the 2007 Rules, was sequel to the Constitution Bench decision of
this Court in Pratap Singh v. State of Jharkhand and Another[9] . In Hari
Ram3, a two-Judge Bench of this Court extensively considered the scheme of
2000 Act, as amended by 2006 Amendment Act. With regard to sub-rules (4)
and (5) of Rule 12, this Court observed as follows :
“27. Sub-rules (4) and (5) of Rule 12 are of special
significance in that they provide that once the age of a
juvenile or child in conflict with law is found to be less than
18 years on the date of offence on the basis of any proof
specified in sub-rule (3) the court or the Board or as the case
may be the Child Welfare Committee appointed under Chapter IV of
the Act, has to pass a written order stating the age of the
juvenile or stating the status of the juvenile, and no further
inquiry is to be conducted by the court or Board after examining
and obtaining any other documentary proof referred to in sub-
rule (3) of Rule 12. Rule 12, therefore, indicates the procedure
to be followed to give effect to the provisions of Section 7-A
when a claim of juvenility is raised.”
26. This Court observed that the scheme of the 2000 Act was to give
children, who have, for some reason or the other, gone astray, to realize
their mistakes, rehabilitate themselves and rebuild their lives and become
useful citizens of the society, instead of degenerating into hardened
criminals. In paragraph 59 of the Report, the Court held as under :
“59. The law as now crystallised on a conjoint reading of
Sections 2(k), 2(l), 7-A, 20 and 49 read with Rules 12 and 98,
places beyond all doubt that all persons who were below the age
of 18 years on the date of commission of the offence even prior
to 1-4-2001, would be treated as juveniles, even if the claim of
juvenility was raised after they had attained the age of 18
years on or before the date of commencement of the Act and were
undergoing sentence upon being convicted.”
27. The Court observed in Hari Ram3 that often parents of children,
who come from rural backgrounds, are not aware of the actual date of birth
of a child, but relate the same to some event which might have taken place
simultaneously. In such a situation, the Board and the Courts will have to
take recourse to the procedure laid down in Rule 12.
28. The judgment in the case of Hari Ram3 was delivered by this
Court on 5.5.2009. On that very day, judgment in Akbar Sheikh2 was
delivered by a two-Judge Bench of which one of us (R.M. Lodha, J.) was a
member. In Akbar Sheikh2 on behalf of one of the appellants, Kabir, a
submission was made that he was juvenile on the date of occurrence. While
dealing with the said argument, this Court observed that no such question
had ever been raised. Even where a similar question was raised by five
other accused, no such plea was raised even before the High Court. On
behalf of the appellant, Kabir, in support of the juvenility, two documents
were relied upon, namely, (i) statement recorded under Section 313 of the
Code and (ii) voters’ list. As regards the statement recorded under Section
313, this Court was of the opinion that the said document was not decisive.
In respect of voters’ list, this Court observed that the same had been
prepared long after the incident occurred and it was again not decisive. In
view of these findings, this Court did not find any merit in the claim of
Kabir, one of the appellants, that he was juvenile and the submission was
rejected. From a careful reading of the judgment in the matter of Akbar
Sheikh2, it is clear that the two documents on which reliance was placed
in support of claim of juvenility were not found decisive and,
consequently, no inquiry for determination of age was ordered. From the
consideration of the matter by this Court in Akbar Sheikh2, it is clear
that the case turned on its own facts.
29. As a matter of fact, prior to the decisions of this Court in
Hari Ram3 and Akbar Sheikh2, a three-Judge Bench of this Court speaking
through one of us (R.M. Lodha, J.) in Pawan8 had considered the question
relating to admissibility of claim of juvenility for the first time in
this Court with reference to Section 7A. The contention of juvenility was
raised for the first time before this Court on behalf of the two
appellants, namely, A-1 and A-2. The argument on their behalf before this
Court was that they were juvenile within the meaning of 2000 Act on the
date of incident and the trial held against them under the Code was
illegal. With regard to A-1, his school leaving certificate was relied on
while as regards A-2, reliance was placed on his statement recorded under
Section 313 and the school leaving certificate. Dealing with the contention
of juvenility, this Court stated that the claim of juvenility could be
raised at any stage, even after final disposal of the case. The Court then
framed the question in paragraph 41 of the Report as to whether an inquiry
should be made or report be called for from the trial court invariably
where juvenility is claimed for the first time before this Court. It was
held that where the materials placed before this Court by the accused,
prima facie, suggested that he was ‘juvenile’ as defined in 2000 Act on the
date of incident, it was necessary to call for the report or an inquiry to
be made for determination of the age on the date of incident. However,
where a plea of juvenility is found unscrupulous or the materials lack
credibility or do not inspire confidence and even prima facie satisfaction
of the court is not made out, further exercise in this regard may not be
required. It was also stated that if the plea of juvenility was not raised
before the trial court or the High Court and is raised for the first time
before this Court, the judicial conscience of the court must be satisfied
by placing adequate material that the accused had not attained the age of
18 years on the date of commission of offence. In absence of adequate
material, any further inquiry into juvenility would not be required.
30. Having regard to the general guidelines highlighted in
paragraph 41 with regard to the approach of this Court where juvenility is
claimed for the first time, the court then considered the documents relied
upon by A-1 and A-2 in support of the claim of juvenility on the date of
incident. In respect of the two documents relied upon by A-2, namely,
statement under Section 313 of the Code and the school leaving certificate,
this Court observed that the statement recorded under Section 313 was a
tentative observation based on physical appearance which was hardly
determinative of age and insofar as school leaving certificate was
concerned, it did not inspire any confidence as it was issued after A-2 had
already been convicted and the primary evidence like entry from the birth
register had not been produced. As regards school leaving certificate
relied upon by A-1, this Court found that the same had been procured after
his conviction and no entry from the birth register had been produced. The
Court was, thus, not prima facie impressed or satisfied by the material
placed on behalf of A-1 and A-2. Those documents were not found
satisfactory and adequate to call for any report from the Board or trial
court about the age of A-1 and A-2.
31. In Jitendra Singh alias Babboo Singh and another v. State of
Uttar Pradesh[10], on behalf of the appellant, a plea was raised that he
was minor within the meaning of Section 2(k) of 2000 Act on the date of
commission of the offence. The appellant had been convicted for the
offences punishable under Sections 304-B and 498A IPC and sentenced to
suffer seven years’ imprisonment under the former and two years under the
latter. The appellant had got the bail from the High Court on the ground
of his age which was on medical examination certified to be around
seventeen years on the date of commission of the offence. One of us (T.S.
Thakur, J.) who authored the judgment for the Bench held that in the facts
and circumstances of the case, an enquiry for determining the age of the
appellant was necessary. This Court referred to the earlier decisions in
Gopinath Ghosh1, Bhoop Ram4 , Bhola Bhagat6 , Hari Ram3 and Pawan8 and
then held that the burden of making out the prima facie case had been
discharged. In paragraphs 9, 10 and 11 of the Report, it was held as
under:
“9. The burden of making out a prima facie case for directing an
enquiry has been in our opinion discharged in the instant case
inasmuch as the appellant has filed along with the application a
copy of the school leaving certificate and the marksheet which
mentions the date of birth of the appellant to be 24-5-1988. The
medical examination to which the High Court has referred in its
order granting bail to the appellant also suggests the age of
the appellant being 17 years on the date of the examination.
These documents are sufficient at this stage for directing an
enquiry and verification of the facts.
10. We may all the same hasten to add that the material referred
to above is yet to be verified and its genuineness and
credibility determined. There are no doubt certain telltale
circumstances that may raise a suspicion about the genuineness
of the documents relied upon by the appellant. For instance, the
deceased Asha Devi who was married to the appellant was
according to Dr. Ashok Kumar Shukla, Pathologist, District
Hospital, Rae Bareilly aged 19 years at the time of her death.
This would mean as though the appellant husband was much younger
to his wife which is not the usual practice in the Indian
context and may happen but infrequently. So also the fact that
the appellant obtained the school leaving certificate as late as
on 17-11-2009 i.e. after the conclusion of the trial and
disposal of the first appeal by the High Court, may call for a
close scrutiny and examination of the relevant school record to
determine whether the same is free from any suspicion,
fabrication or manipulation. It is also alleged that the
electoral rolls showed the age of the accused to be around 20
years while the extract from the panchayat register showed him
to be 19 years old.
11. All these aspects would call for close and careful scrutiny
by the court below while determining the age of the appellant.
The date of birth of appellant Jitendra Singh's siblings and his
parents may also throw considerable light upon these aspects and
may have to be looked into for a proper determination of the
question. Suffice it to say while for the present we consider it
to be a case fit for directing an enquiry, that direction should
not be taken as an expression of any final opinion as regards
the true and correct age of the appellant which matter shall
have to be independently examined on the basis of the relevant
material.”
32. In Daya Nand v. State of Haryana[11], this Court found that on
the date of occurrence the age of the appellant was sixteen years five
months and nineteen days and, accordingly, it was held that he could not
have been kept in prison to undergo the sentence imposed by the Additional
Sessions Judge and affirmed by the High Court. This Court set aside the
sentence imposed against the appellant and he was directed to be released
from prison.
33. In Lakhan Lal v. State of Bihar[12], the question was about
the applicability of 2000 Act where the appellants were not juveniles
within the meaning of 1986 Act as they were above 16 years of age but had
not completed 18 years of age when offences were committed and even when
claim of juvenility was raised after they had attained 18 years of age.
This Court gave benefit of 2000 Act to the appellants and they were
directed to be released forthwith.
34. In Shah Nawaz v. State of Uttar Pradesh and another[13], the
matter reached this Court from the judgment and order of the Allahabad High
Court. An F.I.R. was lodged against the appellant, Shah Nawaz, and three
others for the offences punishable under Sections 302 and 307 of IPC. The
mother of the appellant submitted an application before the Board stating
that Shah Nawaz was minor at the time of alleged occurrence. The Board
after holding an enquiry declared Shah Nawaz a juvenile under the 2000 Act.
The wife of the deceased filed criminal appeal against the judgment of the
Board before the Additional Sessions Judge, Muzaffarnagar. That appeal was
allowed and the order of the Board was set aside. Shah Nawaz preferred
criminal revision before the High Court against the order of the Additional
Sessions Judge which was dismissed giving rise to appeal by special leave
before this Court. This Court considered Rule 12 of 2007 Rules and also
noted, amongst others, the decision in Hari Ram3 and then on
consideration of the documents, particularly entry relating to the date of
birth entered in the marksheet held that Shah Nawaz was juvenile on the
date of occurrence of the incident. This Court in paragraphs 23 and 24 of
the Report held as under:
“23. The documents furnished above clearly show that the date of
birth of the appellant had been noted as 18-6-1989. Rule 12 of
the Rules categorically envisages that the medical opinion from
the Medical Board should be sought only when the matriculation
certificate or school certificate or any birth certificate
issued by a corporation or by any panchayat or municipality is
not available. We are of the view that though the Board has
correctly accepted the entry relating to the date of birth in
the marksheet and school certificate, the Additional Sessions
Judge and the High Court committed a grave error in determining
the age of the appellant ignoring the date of birth mentioned in
those documents which is illegal, erroneous and contrary to the
Rules.
24. We are satisfied that the entry relating to date of birth
entered in the marksheet is one of the valid proofs of evidence
for determination of age of an accused person. The school
leaving certificate is also a valid proof in determining the age
of the accused person. Further, the date of birth mentioned in
the High School marksheet produced by the appellant has duly
been corroborated by the school leaving certificate of the
appellant of Class X and has also been proved by the statement
of the clerk of Nehru High School, Dadheru, Khurd-o-Kalan and
recorded by the Board. The date of birth of the appellant has
also been recorded as 18-6-1989 in the school leaving
certificate issued by the Principal of Nehru Preparatory School,
Dadheru, Khurd-o-Kalan, Muzaffarnagar as well as the said date
of birth mentioned in the school register of the said School at
Sl. No. 1382 which have been proved by the statement of the
Principal of that School recorded before the Board.”
In paragraph 26 of the Report, this Court observed that Rule 12 has
described four categories of evidence which gave preference to school
certificate over the medical report.
35. In Pawan8, , a 3-Judge Bench has laid down the standards for
evaluating claim of juvenility raised for the first time before this Court.
If Pawan8 had been cited before the Bench when criminal appeal of Abuzar
Hossain @ Gulam Hossain came up for hearing, perhaps reference would not
have been made. Be that as it may, in light of the discussion made above,
we intend to summarise the legal position with regard to Section 7A of 2000
Act and Rule 12 of the 2007 Rules. But before we do that, we say a word
about the argument raised on behalf of the State of Bihar that claim of
juvenility cannot be raised before this Court after disposal of the case.
The argument is so hopeless that it deserves no discussion. The
expression, ‘any court’ in Section 7A is too wide and comprehensive; it
includes this Court. Supreme Court Rules surely do not limit the operation
of Section 7A to the courts other than this Court where the plea of
juvenility is raised for the first time after disposal of the case.
36. Now, we summarise the position which is as under:
(i) A claim of juvenility may be raised at any stage even after
final disposal of the case. It may be raised for the first time before
this Court as well after final disposal of the case. The delay in
raising the claim of juvenility cannot be a ground for rejection of such
claim. The claim of juvenility can be raised in appeal even if not pressed
before the trial court and can be raised for the first time before this
Court though not pressed before the trial court and in appeal court.
(ii) For making a claim with regard to juvenility after conviction,
the claimant must produce some material which may prima facie satisfy the
court that an inquiry into the claim of juvenility is necessary. Initial
burden has to be discharged by the person who claims juvenility.
(iii) As to what materials would prima facie satisfy the court and/or
are sufficient for discharging the initial burden cannot be catalogued nor
can it be laid down as to what weight should be given to a specific piece
of evidence which may be sufficient to raise presumption of juvenility but
the documents referred to in Rule 12(3)(a)(i) to (iii) shall definitely be
sufficient for prima facie satisfaction of the court about the age of the
delinquent necessitating further enquiry under Rule 12. The statement
recorded under Section 313 of the Code is too tentative and may not by
itself be sufficient ordinarily to justify or reject the claim of
juvenility. The credibility and/or acceptability of the documents like the
school leaving certificate or the voters’ list, etc. obtained after
conviction would depend on the facts and circumstances of each case and no
hard and fast rule can be prescribed that they must be prima facie accepted
or rejected. In Akbar Sheikh2 and Pawan8 these documents were not found
prima facie credible while in Jitendra Singh10 the documents viz., school
leaving certificate, marksheet and the medical report were treated
sufficient for directing an inquiry and verification of the appellant’s
age. If such documents prima facie inspire confidence of the court, the
court may act upon such documents for the purposes of Section 7A and order
an enquiry for determination of the age of the delinquent.
(iv) An affidavit of the claimant or any of the parents or a sibling
or a relative in support of the claim of juvenility raised for the first
time in appeal or revision or before this Court during the pendency of the
matter or after disposal of the case shall not be sufficient justifying
an enquiry to determine the age of such person unless the circumstances of
the case are so glaring that satisfy the judicial conscience of the court
to order an enquiry into determination of age of the delinquent.
(v) The court where the plea of juvenility is raised for the first
time should always be guided by the objectives of the 2000 Act and be
alive to the position that the beneficent and salutary provisions contained
in 2000 Act are not defeated by hyper-technical approach and the persons
who are entitled to get benefits of 2000 Act get such benefits. The courts
should not be unnecessarily influenced by any general impression that in
schools the parents/guardians understate the age of their wards by one or
two years for future benefits or that age determination by medical
examination is not very precise. The matter should be considered prima
facie on the touchstone of preponderance of probability.
(vi) Claim of juvenility lacking in credibility or frivolous claim of
juvenility or patently absurd or inherently improbable claim of juvenility
must be rejected by the court at threshold whenever raised.
37. The reference is answered in terms of the position highlighted
in paragraph 36 (i) to (vi). The matters shall now be listed before the
concerned Bench(es) for disposal.
…………………….. J.
(R.M. Lodha)
……………………….J.
(Anil R. Dave)
NEW DELHI
OCTOBER 10, 2012.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1193 OF 2006
Abuzar Hossain @ Gulam Hossain …Appellant
Versus
State of West Bengal …Respondent
WITH
CRIMINAL APPEAL NO.1397 OF 2003
SLP (Crl.) No.1451 OF 2003
R.P. (Crl.) No.390 of 2010 In SLP (Crl.) No.2542 of 2010
SLP (Crl.) No.8768 of 2011
SLP (Crl.) No.8855 of 2011
Criminal Appeal No.654 of 2002
SLP (Crl.) No.616 of 2012
J U D G M E N T
T.S. THAKUR, J.
I have had the advantage of going through the order proposed by my
esteemed brother R.M. Lodha J., which summarises the legal position with
remarkable lucidity. While I entirely agree with whatever is enunciated in
the judgment proposed by my erudite colleague, I wish to add a few lines of
my own confined to the proposition stated in Para 36 (IV) of the judgment.
In that paragraph of the order fall cases in which the accused setting up
the plea of juvenility is unable to produce any one of the documents
referred to in Rule 12(3)(a) (i) to (iii) of the Rules, under the Act, not
necessarily because, he is deliberately withholding such documents from the
court, but because, he did not have the good fortune of ever going to a
school from where he could produce a certificate regarding his date of
birth. Para 36 (IV) sounds a note of caution that an affidavit of a parent
or a sibling or other relative would not ordinarily suffice, to trigger an
enquiry into the question of juvenility of the accused, unless the
circumstances of the case are so glaring that the court is left with no
option except to record a prima facie satisfaction that a case for
directing an enquiry is made out. What would constitute a ‘glaring case’
in which an affidavit may itself be sufficient to direct an inquiry, is a
question that cannot be easily answered leave alone answered by enumerating
exhaustively the situations where an enquiry may be justified even in the
absence of documentary support for the claim of juvenility. Two dimensions
of that question may all the same be mentioned without in the least
confining the sweep of the expression ‘glaring case’ to a strait-jacket
formulation. The first of these factors is the most mundane of the inputs
that go into consideration while answering a claim of juvenility like
“Physical Appearance” of the accused made relevant by Rule 12(2) of the
Rules framed under the Act. The Rule reads:
“12. Procedure to be followed in determination of Age. –
(1) xxxx
(2) The Court or the Board or as the case may be the Committee
shall decide the juvenility or otherwise of the juvenile or the
child or as the case may be the juvenile in conflict with law,
prima facie on the basis of physical appearance or documents, if
available, and send him to the observation home or in jail.”
Physical appearance of the accused is, therefore, a consideration that
ought to permeate every determination under the Rule aforementioned no
matter appearances are at times deceptive, and depend so much on the race
or the region to which the person concerned belongs. Physical appearance
can and ought to give an idea to the Court at the stage of the trial and
even in appeal before the High Court, whether the claim made by the accused
is so absurd or improbable that nothing short of documents referred to in
this Rule 12 can satisfy the court about the need for an enquiry. The
advantage of “physical appearance” of the accused may, however, be
substantially lost, with passage of time, as longer the interval between
the incident and the court’s decision on the question of juvenility, the
lesser the chances of the court making a correct assessment of the age of
the accused. In cases where the claim is made in this Court for the first
time, the advantage is further reduced as there is considerable time lapse
between the incident and the hearing of the matter by this Court.
The second factor which must ever remain present in the mind of the
Court is that the claim of juvenility may at times be made even in cases
where the accused does not have any evidence, showing his date of birth, by
reference to any public document like the register of births maintained by
Municipal Authorities, Panchayats or hospitals nor any certificate from any
school, as the accused was never admitted to any school. Even if admitted
to a school no record regarding such admission may at times be available
for production in the Court. Again there may be cases in which the accused
may not be in a position to provide a birth certificate from the
Corporation, the municipality or the Panchayat, for we know that
registration of births and deaths may not be maintained and if maintained
may not be regular and accurate, and at times truthful. Rule 12(3) of the
Rules makes only three certificates relevant. These are enumerated in Sub-
Rule 3(a)(i) to (iii) of the Rule which reads as under:
“(3)a (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
Non-production of the above certificates or any one of them is not,
however, fatal to the claim of juvenility, for Sub-Rule 3(b) to Rule 12
makes a provision for determination of the question on the basis of the
medical examination of the accused in the ‘absence’ of the certificates.
Rule 12(3)(b) runs as under:
“12(3) (b) and only in the absence of either (i), (ii) or (iii)
of clause (a) above, the medical opinion will be sought from a
duly constituted Medical Board, which will declare the age of
the juvenile or child. In case exact assessment of the age
cannot be done, the Court, or the Board or, as the case may
be, the Committee, for the reasons to be recorded by them,
may, if considered necessary, give benefit to the child or
juvenile by considering his/her age on lower side within the
margin of one year.”
The expression ‘absence’ appearing in the above provision is not defined
under the Act or the Rules. The word shall, therefore, be given its literal
dictionary meaning which is provided by Concise Oxford dictionary as under:
“Being away from a place or person; time of being away; non-
existence or lack of; inattenation due to thought of other things.”
Black’s Law Dictionary also explains the meaning of ‘absence’ as under:
“1. The state of being away from one’s usual place of residence. 2.
A failure to appear, or to be available and reachable, when
expected. 3. Louisiana Law. The State of being an absent person –
Also termed (in sense 3) absentia.”
It is axiomatic that the use of the expression and the context in
which the same has been used strongly suggests that ‘absence’ of the
documents mentioned in Rule 12(3) (a)(i) to (iii) may be either because the
same do not exist or the same cannot be produced by the person relying upon
them. Mere non-production may not, therefore, disentitle the accused of
the benefit of the Act nor can it tantamount to deliberate non-production,
giving rise to an adverse inference unless the Court is in the peculiar
facts and circumstances of a case of the opinion that the non-production is
deliberate or intended to either mislead the Court or suppress the truth.
It is in this class of cases that the court may have to exercise its
powers and discretion with a certain amount of insight into the realities
of life. One of such realities is that illiteracy and crime have a close
nexus though one may not be directly proportional to the other. Juvenile
delinquency in this country as elsewhere in the world, springs from poverty
and unemployment, more than it does out of other causes. A large number of
those engaged in criminal activities, may never have had the opportunity to
go to school. 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. Although free education is
provided to Scheduled Castes and Scheduled Tribes, even then, the
delinquents had a very low level of expectations and aspirations
regarding their future which in turn is due to lack of
encouragement and unawareness of their parents that they play
truant.”
What should then be the approach in such cases, is the question. Can
the advantage of a beneficial legislation be denied to such unfortunate and
wayward delinquents? Can the misfortune of the accused never going to a
school be followed or compounded by denial of the benefit that the
legislation provides in such emphatic terms, as to permit an enquiry even
after the last Court has disposed of the appeal and upheld his conviction?
The answer has to be in the negative. If one were to adopt a wooden
approach, one could say nothing short of a certificate, whether from the
school or a municipal authority would satisfy the court’s conscience,
before directing an enquiry. But, then directing an enquiry is not the
same thing as declaring the accused to be a juvenile. The standard of
proof required is different for both. In the former, the court simply
records a prima facie conclusion. In the latter the court makes a
declaration on evidence, that it scrutinises and accepts only if it is
worthy of such acceptance. The approach at the stage of directing the
enquiry has of necessity to be more liberal, lest, there is avoidable
miscarriage of justice. Suffice it to say that while affidavits may not be
generally accepted as a good enough basis for directing an enquiry, that
they are not so accepted is not a rule of law but a rule of prudence. The
Court would, therefore, in each case weigh the relevant factors, insist
upon filing of better affidavits if the need so arises, and even direct,
any additional information considered relevant including information
regarding the age of the parents, the age of siblings and the like, to be
furnished before it decides on a case to case basis whether or not an
enquiry under Section 7A ought to be conducted. It will eventually depend
on how the court evaluates such material for a prima facie conclusion that
the Court may or may not direct an enquiry. With these additions, I
respectfully concur with the judgment proposed by my esteemed Brother
Lodha J.
……………………………………….……….…..…J.
(T.S. Thakur)
New Delhi
October 10, 2012
-----------------------
[1] 1984 (Supp) SCC 228
[2] (2009) 7 SCC 415
[3] (2009) 13 SCC 211
[4] (1989) 3 SCC 1
[5] 1995 Supp (4) SCC 419
[6] (1997) 8 SCC 720
[7] 1993 (Supp) 1 SCC 409
[8] (2009) 15 SCC 259
[9] (2005) 3 SCC 551
[10] (2010) 13 SCC 523
[11] (2011) 2 SCC 224
[12] (2011) 2 SCC 251
[13] (2011) 13 SCC 751
-----------------------
39
