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CHAPTER-V

JUDICIAL TRENDS ON JUVENILE DELINQUENCY

5.1 Introduction
This chapter highlights role of the Supreme Court and various High
Courts in development of Juvenile Justice System in India. At primary stage,
the cases of the juvenile delinquent are dealt with by the lower courts but their
judgments being not binding on the other courts are not able to reflect on any
policy. So the trends of the judicial approach towards a juvenile in conflict
with law, reflected by the judgments of Hon'ble Supreme Court and various
high courts are being examined. The courts/ juvenile justice board are under
statutory and Constitutional duty to deal with the juveniles in conflict with law
who are produced or brought before it. The competent authority in deciding
the cases has to make due enquiry and give full opportunity to the juveniles to
put his case not only at the time of enquiry regarding the commission of
offence he/she is charged with but also at the initial stage of the case when the
question of determination of his/her age comes up before the court or the
Board concerned.
This fact has now been openly being accepted all over the world that
problem of child delinquency is a major problem faced by developing
countries and the developed country as well and it is increasing with a great
pace. Even in small urban and rural areas the problem is growing rapidly and
this problem if not taken care of by providing preventive and remedial
measures would destroy 'the child' which is future of a Nation. To tackle and
deal with the problem the Governments have established many courts and
Boards for implementation of various laws enacted by the legislation. The
courts have contributed a lot in the fields of juvenile justice by interpreting
various legislative enactments enacted for the benefit ofjuvenile offenders.
Though Children Acts, Juvenile Justice Act, 1986 and Juvenile Justice
(Care and Protection of Children), Act, 2000 are mainly concerned with
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juvenile justice system in India but the judiciary on various occasions has
expressed great concern relating to proper implementation of beneficial
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provisions of law relating to children.
5.2 Judicial Trends
Judicial trends set by various courts relating to child delinquency can
be examined under following heads
(i) Determination of age ofjuvenile.
(ii) Jurisdiction of the Board / Court.
(iii) Apprehension and production ofjuvenile.
(iv) Bail to juvenile.
(v) Disposition of the juvenile.
5.2.1. Determination ofAge of Juvenile
It is primary duty and responsibility of the court that before convicting
a person it must determine the age of such person whether he is juvenile or
not. The courts have held that very young children should not be sent to
prison1 2In Smt. Prabhati v. Emperor1 it was held that as far as possible such
young children should be released under the supervision and care of their
parents or guardians. The court must have clear evidence of the age of a
person before sending him/her to reformatory school. It was clarified that a
child could not be sent to a reformatory school unless an order of
institutionalization, that is, of imprisonment, was made.3
After recognizing the need for segregation of juveniles from the adult
offenders not only during trial but also at the investigation stage, the constant
view of the beneficial juvenile legislation and also the judiciary has been to
protect the child from hardships of adversarial trial and punishment system
which mainly deals with the adult offenders. So the important point which
requires a determination at the very initial stage is the age of a person charged
with commission of an offence. A juvenile under Juvenile Justice Act, 1986

1 Emperor v. Dharam Parkash AIR 1926 (Lahore) 611


2 AIR 1921 (Oudh) 190.
3 Nawab Dheru Gul v Emperor, AIR 1934 (Pesh) 29;
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means a boy who has not completed the age of 16 years and a girl who has not
completed age of 18 years. In Juvenile Justice Act (C & P), 2000, the
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distinction of age of a male and female child has been done away with and a
uniform age pattern has been provided. Section 2(k) of the Act defines a
juvenile or a child as a person who has not completed 18 years of age. As per
section 2 (1) of the Act juvenile in conflict with law means a juvenile who is
alleged to have committed an offence and has not completed 18 years of age
as on the date of commission of offence. So the primary duty and
responsibility of the court before convicting a person is to determine the age of
; such person and decide whether he/she is a juvenile. The Children Act,
Juvenile Justice Act, 1986 and Juvenile Justice (Care & Protection of
Children) Act, 2000 apply to children and defines who is a child by reference
to age. They provide for continuation of enquiry after the children ceases to be
a juvenile during its pendency what is the relevant date on which the child
should be below the specified age is a material question. However, the J.J. (C
& P) Act, 2000 has now finally set the controversy at rest by referring the
child to a person who has not completed the age of 18 years as on date of
commission of offence. However, the issue of the relevant time at which the
child should be below the age of eighteen has been raised in many decisions
and has resulted in a controversy that is likely to continue in future too.4
The protective philosophy underlying the special legal provision
relating to children has been reiterated by the judiciary on various occasions.
Delinquent and neglected children have enjoyed special protection under
certain enactments like The Apprentices Act, 1850, the Indian Penal Code,
1860, The Reformatory Schools Act, 1897, The Code of Criminal Procedure
1898, The Code of Criminal Procedure 1973 and Borstal Acts. In India the
main legislative Acts are The Children Acts, The Juvenile Justice Act, 1986,
The Juvenile Justice (C & P) Act, 2000 which are also influenced by the above
mentioned Acts. For example under Section 82 of IPC, a child below 7 years

4
Arnit Dass v. State of Bihar, AIR 2000 (SC) 2264, Umesh Chander Vs. State of
Rajasthan, 1982 Cri.LJ.994
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of age is absolved from any criminal responsibility. Section 83 of IPC extends


this exemption to children between 7 and 12 years of age if proved to be doli-
incapax. The question under the EPC is limited to Mens rea-rea and the age of
the child.
In Emperor v. Wall Mohd. & another5 the Court held that throwing of
stone at a train by children of five and eight years would ordinarily be
protected under Section 82 and 83 of the IPC and would not be punishable .as
offence. In 1977, the Supreme Court held that the penalty of death should not
be imposed oh a person below the age of 186 The Children guilty of offences
punishable with death or life imprisonment were the focus of attention under
Borstal Acts and Reformatory Schools Act. The judicial opinion differed on
the issue whether Reformatory Schools Act could be applied to such children.
Under Borstal Acts also the judicial response was equally divided. (See
Gangaram Raghunath v State ofMP, Daljit Singh v. Emperor; Ram Gopal V.
State & Ningappa Prabhu Sarwad v. State ofMysore)1
In Madan Prodhan v. State of West Bengal, a division bench8-of the
West Bengal High Court held the age of the accused at the time of commission
of the offence is relevant under the West Bengal Children Act, 1959 (WBCA)
while another division bench of the same high court observed provisions of the
WBCA clearly required the person to be a child when brought before the court
for trial9. Due to contrary view of earlier Division Bench, it referred the matter
to the Chief Justice for consideration by a full bench. The full bench, however,
refused to give an answer that it thought would be of only academic use.10The
division bench, in the absence of an answer from the full bench, held that the
age at the time of trial was decisive of the applicability of the Act.

AIR 1936 (Sind) 185


Raisul v State of UP, AIR 1977 (SC) 1822.
AIR 1965 (MP) 122, AIR 1937 (Nag) to 74 (DB) 1968 Crl.L J. 1178,1961, Mad. L J
(Crl.) 705)
1976(1) Cal 224.
Gobinda Chandra v State of West Bengal, 1977 Cri LJ 1501 (Cal) (DB).
Gobinda Chandra v State of West Bengal, 1977 Cri LJ 1499 (Cal)
(DB).
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The question again came up for decision in Dilip Saha v State of West
Bengaln. The full bench, in this case, gave elaborate reasons for holding that
the age at the date of commission of the offence was decisive of the
applicability, taking into account the protective nature of the Act. First, it
pointed out that attainment of a particular age was no bar to the trial of a child
delinquent under the Act. Secondly, the Act had conferred on the child certain
rights not enjoyed by adults: release on bail in generally non-bailable cases;
prohibition against imposition of death penalty or imprisonment; ban on
preventive proceedings; removal of disqualifications: and so on. "These
beneficial provisions are rights vested in a juvenile delinquent on the day the
offence is committed. He cannot be denied of them by reason of the fact that at
the time of actual trial he has become an adult. Thirdly, the section providing
for separate trial of child delinquent from adult offender, did not say ‘that if a
person was a child at the time of commission of the offence but became an
adult at the time of trial, he would be deprived of the benefits conferred by the
Act.13
The fourth argument was the most forceful of all. The court pointed out
that sometimes delay in the trial of an accused may be caused by the
investigating officer. In such cases, denial of the benefits of the Act would
defeat its whole object and purpose. It will also be against the Constitutional
principle. If we interpret Section 28 to mean that it prohibits a joint trial of a
child and an adult only when the child is a ‘child’ at the time of trial, that
interpretation would go against the provisions of Article 20(1) of the
Constitution which prescribes that no person shall be convicted of any offence
except for violation of a law in force at the time of the commission of the act
charged as an offence, nor be subjected to a penalty greater than that which
might have been inflicted under the law in force at the time of the commission
of the offence. If therefore, at the time of the commission of the offence a

n 1979 Cri LJ 88 (FB)


12
Id. at 91.
13
Id. at 91-2.
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child cannot be sentenced to death or ordinarily imprisoned, he cannot be


subjected' to a greater penalty at the time of his trial even if he becomes an
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adult at the time of trial.14
In Umesh Chandra v State of Rajasthan15 a full bench of the Supreme

Court, too, held that the date of commission of offence as the relevant date for
applying the Children Act. It observed:
As regards the general applicability of the Act, we are clearly of
the view that the relevant date for the applicability of the Act is the
date on which the offence takes place. Children Act was enacted to
protect young children from the consequences of their criminal
acts on the footing that their mind at that stage could not be said to
be mature for imputing Mens rea rea as in the case of an adult.
This being the intendment of the Act, a clear finding has to be
recorded that the relevant date for applicability of the Act is the
date on which the offence takes place. It is quite possible that by
the time the case comes up for trial, growing in age being an
involuntary factor, the child may have ceased to be a child.
Therefore, ss. 3 and 26 become necessary. Both the sections clearly
point in the direction of the relevant date for the applicability of the
Act as the date of occurrence. We are clearly of the view that the
relevant date for the applicability of the Act so far as the age of the
accused who claims to be a child, is concerned, is the date of the
occurrence and not the date of the trial.16
The controversy, however, did not end with the above decision of the
Supreme Court. The issue continued to be raised under the JJA, and at least
two High Courts held the age at the date of trial to be decisive of its
applicability. 17These cases were decided in apparent ignorance of the Supreme
Court decision mentioned above, as also was the decision in Arnit Das v. State

Id. at 91.
1982 CriLJ 994.
However, this ruling of the court seems more an obiter than the dicta as it is not clear
from the facts of the case whether this point was an issue in the case.
V. Luxminarayana, 1992 Cri LJ 334(AP)(Overruled in Bandella Alliah 1995 Cri LJ 1085
(AP) (FB); Sheo Mangal Singh (1990 Cri LJ 1698) (Luck).
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of Biharl%by a bench of the Supreme Court when it held that the date of first
appearance was the relevant date for applying the JJA. The bench reasoned .
that the use of the word ‘is’ at two places read in conjunction with ‘a person
brought before it.’ Section 32 of the JJA clearly indicated for determination of
age when the accused was presented before the court. Disagreeing with Dilip
Saha, it said that the right under Article 20 of the Constitution would not be
violated if the applicability of the Act was determined by reference to the date
of the commencement of the inquiry or trial. The decision was per incurium
and was subjected to severe criticism. 19The division bench apparently was not
in agreement with the decision of the full bench in Umesh Chandra. However,
in the absence of a ruling on the issue from the Constitution bench, Umesh
Chandra continues to be the binding law on the issue. It is submitted that the
date of commission of the offence is decisive of the applicability of the Act as
decided in Umesh Chandra being a decision of the full bench of the Supreme
Court, as also Dilip Sahu for the reasons mentioned in these two cases.
In Malda Dada v. State of Gujarat20 it has been held by Gujarat High
Court that the word “attained” used in the J.J. Act of 1986 means ‘completed’.
Therefore, a boy who has not completed the age of sixteen years and a girl
who has not completed the age of eighteen years is a juvenile for the purpose
of The Juvenile Justice Act, 1986. In Gopinath Ghosh vs. State of West
Bengal the Supreme Court even after noticing that the contention about age
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of a convict claiming the benefit of Children Act was being raised for the first
time in the Supreme Court allowed the plea of child status being raised before
itself in the interest of justice and referred the matter to the lower court for
determination of the age. It observed:
ordinarily the Supreme 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

18 AIR 2000 (SC) 2264.


19 Ved Kumari, In Defence of Arnit Das v State ofBihar: A Rejoinder' (2002) 2 SCC (Jour)
15.
20 Malda Dada v. State of Gujarat, I.L.R. (1972) Gujarat 326.
21 Gopinath Ghosh v. State of West Bengal, 1984 Cri. L J. 168 (SC
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progressive statute by taking shield behind the technicality of the


contention being raised for the first time in the Supreme Court.
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To avoid delay in determination of age, it directed that whenever a case


is brought before the magistrate and the accused appears to be aged 21 or
below, before proceeding with trail or under taking an inquiry must be made
about the age of the accused at date of the occurrence. The Supreme Court has
permitted the plea of child status to be raised for the first time before it on
earlier22 as well as later occasions.23However this approach of the Supreme
Court has neither been incorporated in the statute nor followed consistently by
the Supreme Court itself.
In Sushil Kumar v. State of UP24 the question of age at the time of
occurrence was raised. However, the Supreme Court refused to allow the plea
of child status and dismissed the petition believing the plea to be an after
thought because it was not raised before the trial court or before the High
Court or even in grounds of special leave petition as originally filed. Further,
the Supreme Court took into consideration two statements of petitioner made
by him relating to deceased being his aunt wanting to adopt him and suspicion
of deceased's husband of illicit relation between him and deceased and said
that such a stand would not have been taken if it petitioner was a child at the
crucial time. The statements of the petitioner were contradictory from point of
his being a child. This case was decided after about six months of Gopinath
Ghosh's case and follows just opposite approach without any reference to this
case. In Gopinath Ghosh the accused had given his age as much above the cut­
off age prescribed for being a child. However, the court not only allowed the
plea of child status to be raised but also referred the matter to the Sessions
Judge for determination of the age of the accused who after examination of
medical report of the accused, Chief Medical Officer, Radiologist, Orthopedic
Surgeon, the Doctor, mother of the accused and Headmaster of the school

Dharampal and others v. State ofU.P.,AJR 1975 (SC), 1917.


Umesh Singh v. State of Bihar, 2000 (4) SCALE 511, Hawaldar Singh v. State of U.P.,
AIR 1985 (SC) 955.
24 Sushil Kumar v. State ofU.P. AIR, 1984 SC 1232.
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certified that the accused was a child on the date of offence.


■ ~ In Hariom v. State of UP 25 Supreme Court again summarily dismissed
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the plea of being a child as no evidence was placed during trial or before the
High Court, without making any mention of its own cases holding that it was
too late to produce a certificate before Supreme Court.
The question before the Supreme Court in Amit Das26 was whether a person is
juvenile and crucial date is the date when he is brought before the competent
authority and not the date of commission of offence. After considering all the
trends and material in this regard, the court held that as far as the present
context is concerned the crucial date for determining the question whether a
person is Juvenile, is the date when he is brought before the competent
authority. So far as the finding regarding the age of the appellant is concerned,
it is based on appreciation of evidence arrived at after taking into
consideration of the material on record and valid reasons having been assigned
for it.
In case of Shantanu Mitra v. State of West Bengal27 Shantanu Mitra
was arrested under sec. 302 EPC and tried under same section. He raised the
plea that he had not attained the age on the date of commission of the offence
i.e. 22-2-98 and was entitled to protection under Juvenile Justice Act, 1986.
The plea did not find favour with the lower court. The High Court directed the
Magistrate to hold inquiry under sec. 8(1) of Juvenile Justice Act 1986. The
Magistrate held inquiry and found that the appellant was bom on 19-11-72 and
was over 16 years on date of incident. The court did not rely on birth entry in
Municipal record, LIC, Matriculation certificate and rejected the same. The
High Court also rejected the plea of appellant. However, the appeal was
allowed by Supreme Court holding that once an entry is made by an official,
the same cannot be doubted on mere argument that it was not confirmed with
date of the suggested date of birth of appellant.

25
1993 Crl. Law Journal 1383 (SC)
26
Amit Das v. State ofBihar AIR 2000, S C 2264 A
27
Shantanu Mitra v. State of West Bengal, AIR 1998 SC. W 4099, AIR 1999 SC 1587.
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In case of Krishan Bhagwan 28 a question arose as to what procedure


should be followed where a child within the meaning of the Children Act is
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being tried and convicted by the ordinary criminal court and plea regarding bar
of his trial by the ordinary court was taken for the first time at the appellate
stage. The Bench made reference to the decision of case of Gopinath Ghosh
and treated the appellant as juvenile under sec. 3 of the Act and exercising
power of Juvenile Court u/s 7(3) of the Act while maintaining the conviction
of appellant under sec. 302 IPC the court directed the appellant to be released
on probation of good conduct on executing a bond to the satisfaction of the
trial court that will keep peace and be of good behaviour for period of three
years. It further directed him to pay a sum of Rs. 5000/- as fine, which shall be
paid to the widow of deceased. Similarly, in Jayendra's case29 where accused
had been wrongly sentenced to imprisonment instead of being treated as a
“child” under S. 2 (4) of U.P. Children Act and sent to an approved school, the
accused having crossed the maximum age of detention in an approved school
i.e. 18 years the court sustained the conviction of the appellant under all
charges framed against him but quashed the sentence awarded to him and
directed his release forthwith. The appeal was therefore partly allowed by the
Supreme Court. ‘
In Bhola Bhagat v. State of Bihar,30 it was held that where plea is
raised by accused in any court that he was a child at the time of commission of
offence it is obligatory for the court to examine the plea and hold enquiry if
necessary to determine the age and give a finding in that regard. The court
cannot overlook beneficial provisions of Acts on technical grounds. The Patna
High Court in Krishna Bhagwan v State of Bihar31 in complete disregard to
the intendment of the JJA for keeping children away from adult offenders even
during trial, laid down that in case the plea of child status was taken up in
appeal, the appellate court should proceed as if the JJA did not apply, and

28 Krishan Bhagwan v. State ofBihar AIR 1989 PAT 217 (FB)


29 Jayendra v. State of U.P. AIR 1982 S.C. 685,1982 Cri. L.J. 1000.
30 Bhola Bhagat v. State ofBihar, 1998 Cri. L.J. 1990
31 1991 Cri LJ 1283 (Pat) (FB).
191

record its finding on the charge. Only if it found the accused guilty and prima-
facie a child on the date of commission of offence, then it should ask for a
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finding of age from the juvenile court under Section 32 of the JJA.
In Bhoop Ram's Case32 Supreme Court was confronted with the
question whether the appellant who had been convicted and sentenced along
with adult accused should have been treated as a child within the meaning of
The U.P. Children Act and sent to the approved school for the detention
instead of being sentenced to undergo imprisonment in Jail. The court after
considering the material on record opined that appellant should have been
dealt with under the U.P. Children Act instead of being sentenced to
imprisonment. The Supreme Court ruled that since the appellant is now aged
more than 28 years of age there is no question of appellant now being sent to
an approved school under the U.P. Children Act for being detained there.
In Poulush Pahan v. State ofJharkhand and Another*33 it was alleged in the
FIR that the petitioner had love affair with the married daughter of the informant
and in course of time she became pregnant which led to her illness. The petitioner
is alleged to have given her some herbal medicine for abortion, which she took
and due to which she died. The case was committed to the Court of Session and
petitioner was put on trial. On the basis of medical report regarding the age of the
petitioner, the matter was referred to the ACJM, for inquiry under the provisions
of Section 49 of the J.J. Act, 2000 for determining the age of the petitioner. The
petitioner was medically examined by three members Medical Board on
8.12.2003. After physical and radiological examination the petitioner was found
to be 16 years. The ACJM gave much weight to the assessment of the age by the
Magistrate at the time of remand of the petitioner, whose age was assessed to be
of 20 years and at the time of recording the statement under section 313 of the
Cr.P.C. to be 22 years. He also on his own estimation held that the petitioner was
not juvenile as he may be aged 20 years on 8.12.2003. The petitioner had
challenged the order whereby the ACJM, Khunti in exercise of powers under

32
Bhoop Ram v. State of U.P. 1989. 3 SCC (AIR 1989 SC 1329)
33
(2006(1)JCR 146(Jhr)
192

section 49 of Juvenile Justice (Care and Protection of Children) Act, 2000,


determined the age of the petitioner to be more than 18 years and, thereby, held
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him to be not a juvenile.
Revision application was allowed and the order impugned of the ACJM,
Khunti was set aside. The Court observed that:
“It is a settled law that for declaring a person as juvenile under the
J.J. Act 2000, the age of the accused has to be considered on the
date of occurrence when the offence was alleged to have been
committed and not on any other subsequent date. In the present
case, the petitioner was found to be aged about 16-17 years on
8.12.2003 by the Medical Board consisting of three Doctors who
examined the petitioner physically as well as radiologically. In
view of this finding of the Medical board, the petitioner was aged
14-15 years on 12.2.2002 i.e. on the date of alleged occurrence. In
view o this position, the ACJM was held to have committed grave
error in not declaring the petitioner to be a juvenile. The ACJM
ought to have held the petitioner on the basis of the report of the
three members Medical Board.”
In Pratap Singh v. State of Jharkhand and another34 first Information
Report was filed charging the appellant for causing the death of the deceased by
poisoning. On the basis of the FIR the appellant was arrested and produced before
the Chief Judicial Magistrate (CJM) Chas on 22.11.1999. On production, CJM
assessed the age of the appellant to be around 18 years old. On 28.2.2000, a
petition was filed on behalf of the appellant claiming that he was a minor on the
date of occurrence, whereupon the CJM transmitted the case to the juvenile court.
The juvenile court assessed the age of the appellant by appearance to be between
15 and 16 years and directed the Civil Surgeon to constitute a Medical Board for
the purpose of assessing the age of the appellant by scientific examination and
submit a report. No such Medical Board was constituted. The parties were

34
JT 2005(2) SC 271
193

therefore asked to adduce evidence, and on examining the school leaving


certificate and marks-sheet of Central Board of Secondary Education, juvenile
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court came to the finding that the appellant was below 16 years of age as on date
of occurrence of crime and he was then released on bail. Aggrieved thereby the
informant filed an appeal before the 1st Additional Sessions Judge, who after
referring to the judgment Arnit Das v. State of Bihar disposed of the appeal
holding that the juvenile court had erred in not taking note of the fact that the date
of production before the juvenile court was the date relevant for deciding whether
the appellant was juvenile or not for the purpose of trial and directed a fresh
inquiry to assess the age of the appellant. Aggrieved thereby the appellant moved
the High Court by filing Criminal Revision Petition. The High Court while
disposing of the Revision followed the decision rendered in Amit Das and held
that reckoning date is the date of production of the accused before the Court and
not the date of the occurrence of the offence. The High Court also held that for
determining the age of juvenile, the provisions of 1986 Act would apply and not
2000 Act. The High Court took the view that the date of birth, as recorded in the
school and the school certificate, should be the best evidence for fixing the age of
the appellant and any other evidence in proof of age would be of much inferior
quality. Pending the inquiry, the Supreme Court was called upon to decide on
conflicting views given by it in Arnit Das v. State of Bihar35and Umesh Chandra
v. State of Rajasthan . The Court referred the matter to the Constitution Bench.
The questions which Bench decided were:
(a) Whether the date of occurrence will be the reckoning date for
determining the age of the alleged offender as Juvenile offender or
the date when he is produced in the Court/competent authority.
(b) Whether the Act of 2000 will be applicable in the case a
proceeding initiated under 1986 Act and pending when the Act of
2000 was enforced with effect from 1.4.2001.
The Court overruled Amit Das and restored the position taken in Umesh

35
AIR 2000, SC2264A
36
1982 Cri. L.J. 994
194

Chandra case thereby holding that the reckoning date for the determination of the
age of the juvenile is the date of an offence and not the date when he is produced
before the authority or in the Court.
The whole object of the Act is to provide for the care, protection, treatment
development and rehabilitation of neglected delinquent juveniles. It is a beneficial
legislation aimed at to make available the benefit of the Act to the neglected or
delinquent juveniles. It is settled law that the interpretation of the Statute of
beneficial legislation must be to advance the cause of legislation to the benefit for
whom it is made and not to frustrate the intendment of the legislation.
The legislative intendment underlying Sections 3 and 26 read with the
preamble, aims and objects of the Act is clearly discernible. A conjoint reading of
the Sections, preamble, aims and objects of the Act leaves no matter of doubt that
the legislature intended to provide protection, treatment, development and
rehabilitation of neglected or delinquent juveniles and for the adjudication
thereof. Interpretation of Sections 3 and 26 of the Act are no more res-integra.
Sections 3 and 26 of the 1986 Act as quoted above are in pari materia with
sections 3 and 26 of the Rajasthan Children Act, 1970. A three-Judge bench of this
Court in Umesh Chandra after considering the preamble, aims and objects and
sections 3 and 26 of the Rajasthan Act, held that the Act being a piece of social
legislation is meant for the protection of infants who commit criminal offences
and, therefore, such provisions should be liberally and meaningfully construed so
as to advance the object of the Act. The decision rendered by a three-Judge bench
of this Court in Umesh Chandra was not noticed by a two-Judge bench of this
court in Amit Das. We are clearly of the view that the law laid down in Umesh
Chandra is the correct law and that the decision rendered by a two-Judge bench of
this Court in Amit Das cannot be said to have laid down a good law. We,
accordingly, hold that the law laid down by a three-Judge bench of this Court in
Umesh Chandra is the correct law.
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
195

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
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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.
Therefore, the provisions of 2000 Act would be applicable to those cases initiated
and pending trial/inquiry for the offences committed under the 1986 Act provided
that the person had not completed 18 years of age as on 1.4.2001.
The 1986 Act was holding the field till it was eclipsed by the emergence of
2000 Act w.e.f. 1.4.2001, the date on which the said Act came into force by the
Notification dated 28.2.2001 in the Official Gazette issued by the Central
Government in exercise of the powers conferred by Sub-section (3) of Section 1
of the Act. Section 69(1) of the Act repealed the 1986 Act. Sub-section (2)
postulates that anything done or any action taken under the 1986 Act shall be
deemed to have been done or taken under the corresponding provisions of the
2000 Act. Thus, although the 1986 Act was repealed by the 2000 Act, anything
done or any action taken under the 1986 Act is saved by Sub-section (2), as if the
action has been taken under the provisions of the 2000 Act.
Section 20 of the 2000 Act 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.
The intention of the Legislature was that the provisions of the 2000 Act
were to apply to pending cases provided, on 1.4.2001 i.e. the date on which the
196

2000 Act came into force, the person was a “juvenile” within the meaning of the
term as defined in the 2000 Act i.e. he/she had not crossed 18 years of age. The
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2000 Act would be applicable in a pending proceeding in any court/authority


initiated under the 1986 Act and is pending when the 2000 Act came into force
and the person had not completed 18 years of age as on 1.4.2001.
Justice S.B. Sinha gave his separate and concurrent decision on these
questions in which his lordship observed as under :-
Decision on Question (a)
The decisions in Umesh Chandra and Amit Das are in conflict with each
other. Whereas in Umesh Chandra, a clear finding has been recorded by this Court
that the relevant date for applicability of the Act is the date on which the offence
takes place; Amit Das, suggests that the relevant date for finding out the age of
juvenile is the date when he is produced before the Board. It was observed that
indisputably the definition ofjuvenile or any other provisions contained in the Act
does not specifically provide the date for reference to which a crime has to be
determined so as to find out whether he is or she is a juvenile or not.
In support of the view taken in Amit Das, respondent submitted that the
Act aims at protection of a juvenile in the sense that he is to be kept in the
protective custody and dealt with separately by not sending him to prison or
police lock-up which is possible to be directed only when a juvenile is arrested or
produced in court and not prior thereto. Similarly, on conviction, he cannot be
sentenced and may be directed to be housed in a protective home and, thus, the
relevant date would be the one on which the delinquent juvenile is produced
before the Board. This argument was not accepted for following reasons:
(i) The said Act is not only a beneficent legislation, but also a remedial one. The
Act aims at grant of care, protection and rehabilitation of a juvenile vis-a-vis the
adult criminals.
(ii) Having regard to Rule 4 of United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, it must also be borne in mind that the moral
and psychological components of criminal responsibility are also one of the
197

factors in defining a juvenile. The first objective, therefore, is the promotion of


the well-being of the juvenile and the second objective to bring about the
principle of proportionality whereby and where under the proportionality of the
reaction to the circumstances of both the offender and the offence including the
victim should be safeguarded. In essence, Rule 5 calls for no less and no more
than a fair reaction in any given case of juvenile delinquency and crime. The
meaning of the expression 'Juvenile” used in a statute by reason of its very nature
has to be assigned with reference to a definite date. The term 'Juvenile' must be
given a definite connotation. A person cannot be a juvenile for one purpose and an
adult for other purpose. It was, having regard to the Constitutional and statutory
scheme, not necessary for the Parliament to specifically state that the age of
juvenile must be determined as on the date of commission of the offence. The
same is in-built in the statutory scheme.
(iii) The statute must be construed having regard to the Scheme and the ordinary
state of affairs and consequences flowing therefrom. The modem approach is to
consider whether a child can live up to the moral and psychological components
of criminal responsibility, that is, whether a child, by virtue of his or her
individual discernment and understanding can be held responsible for essentially
anti-social behaviour.
(iv) The importance of time-bound investigation and a trial in relation to an
offence allegedly committed by a Juvenile is explicit as has been dealt with in
some details herein before. While making investigation it is expected that the
accused would be arrested forthwith. He, upon his arrest; if he appears to be a
juvenile cannot be kept in police custody and may be released on bail. If he is not
released on bail by the arresting authority, he has to be produced before the
competent Court or Board. Once he appears to be juvenile, the competent court
and/or board may pass an appropriate order upon releasing him for bail or send
him to a protective custody.
(v) An inquiry for the purpose of determination of age of the juvenile need not be
resorted to if the person produced is admitted to be a juvenile. An inquiry would
198

be necessary only if a dispute is raised in that behalf. A decision thence is required


to be taken by the competent court and/or board having regard to the status of the
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accused as to whether he is to be released on bail or sent to a protective custody or
remanded to police or judicial custody.
(vi) For the said purpose what is necessary would be to find out as to whether on
the date of commission of the offence he was a juvenile or not as otherwise the
purpose for which the Act was enacted would be defeated. The provisions of the
said Act, clearly postulate that the necessary steps in the proceedings are required
to be taken not only for the purpose of adopting a special procedure at the initial
stage but also for the intermediary and final stage of the proceedings.
(vii) If the person concerned is a juvenile, he cannot be tried along with other
adult accused. His trial must be held by the Board separately.
(viii) In the trial, the right of the juvenile as regard his privacy must be protected.
He is entitled to be represented by a legal adviser and for free legal aid, if he
applies therefor. His parents and/or guardian are also entitled to participate in the
proceedings. The Court would be entitled to take into consideration the Social
inquiry Reports wherein the background and the circumstances in which the
juvenile was living and the condition in which the offence had been created may
be properly investigated so as to facilitate juvenile adjudication of the case by the
competent authority. At all stages, the Court/Board is required to pass an
appropriate order expeditiously. Right of a juvenile to get his case disposed of
expeditiously is a statutory as also a Constitutional Right.
(ix) Even at the final stage, viz., after he is found to be guilty of commission of an
offence, he must be dealt with differently vis-a-vis adult prisoners. Only because
his age is to be determined in a case of dispute by the competent court or the
board in terms of section 26 of the Act, the same would not mean that the relevant
date there for would be the one on which he is produced before the Board. If such
an argument is accepted, the same would result in absurdity as, in a given case; it
would be open to the police authorities not to produce him before the Board
before he ceases to be juvenile. If he is produced after he ceases to be juvenile, it
199

may not be necessary for the Board to send him in the protective custody or
release him on bail as a result whereof he would be sent to the judicial or police
custody which would defeat the very purpose for which the Act had been enacted.
Law cannot be applied in an uncertain position. Furthermore, the right to have a
fair trial strictly in terms of the Act which would include procedural safeguard is a
Fundamental Right of the juvenile; A proceeding against a juvenile must conform
to the provisions of the Act.
(x) The Act not only refers to the obligations of the country to re-enact the
existing law relating to juveniles bearing in the mind, the standards prescribed in
various conventions but also all other International Instruments. It states that the
said Act was enacted inter alia to consolidate and amend the law relating to
juveniles. Once the law relates to delinquent juveniles or juveniles in conflict with
law, the same would mean both pre and post-delinquency.
(xi) The definition of 'Juvenile” under the 1986 Act, of course refers to a person
who has been found to have committed offence but the same has been clarified in
the 2000 Act. The provisions ‘ of 1986 Act, sought to protect not only those
juveniles who have been found to have committed an offence but also those who
had been charged therefor. In terms of Section 3 of the 1986 Act as well as 2000
Act when an enquiry has been initiated even if the juvenile has ceased to be so as
he has crossed the age of 16 and 18 as the case may be, the same must be
continued in respect of such person as if he had continued to be a juvenile.
Section 3 of the 1986 Act therefore cannot be given effect to if it is held that the
same only applied to post delinquency of the juvenile.
(xii) The field covered by the Act includes a situation leading to juvenile
delinquency vis-a-vis commission of an offence. In such an event he is to be
provided the post delinquency care and for the said purpose the date when
delinquency took place would be the relevant date. It must, therefore, be held that
the relevant date for determining the age of the juvenile would be one on which
the offence has been committed and not when he is produced in court.
Decision on Question (b)
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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
r
“juvenile' within the purview of the Act of 2000 must be answered having regard
to the object and puiport thereof.
In terms of the 1986 Act, a person who was not juvenile could be tried in
any court. Section 20 of the Act of 2000 takes care of such a situation stating that
despite the same the trial shall continue in that court as if that Act has not been
passed and in the event, he is found to be guilty of commission of an offence, a
finding to that effect shall be recorded in the judgment of conviction, if any, but
instead of passing any sentence in relation to the juvenile, he would be forwarded
to the board which shall pass orders in accordance with the provisions of the Act
as if he has been satisfied on inquiry that a juvenile has committed the offence. A
legal fiction has, thus, been created in the said provision. A legal fiction as is well-
known must be given its full effect although it has its limitations.
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.
However, the Scheme of the 2000 Act is such that such a construction is
possible. The same would also be evident from Section 64 which deals with a
case where a person has been undergoing a sentence but if he is a juvenile within
the meaning of the 2000 Act having not crossed the age of 18, the provisions
thereof would apply as if he had been ordered by the Board to be sent to a special
home or the institution, as the case may be.
Section 20 of the Act of 2000 would, therefore, be applicable when a
person is below the age of 18 years as on 1.4.2001. For the purpose of attracting
Section 20 of the Act, it must be established that: (i) on the date of coming into
force the proceedings in which the petitioner was accused was pending; and (ii)
on that day he was below the age of 18 years. For the purpose of the said Act,
both the aforementioned conditions are required to be fulfilled. By reason of the
provisions of the said Act of 2000, the protection granted to a juvenile has only
been extended but such extension is not absolute but only a limited one. It would
apply strictly when the conditions precedent there for as contained in Section 20
or Section 64 are fulfilled. The said provisions repeatedly refer to the words
'juvenile' or 'delinquent juveniles' specifically. This appears to be the object of the
Act and for ascertaining the true intent of the Parliament, the rule of purposive
construction must be adopted. The purpose of the Act would stand defeated if a
child continues to be in the company of an adult. Thus, the Act of 2000 intends to
give the protection only to a juvenile within the meaning of the said Act and not
an adult. In other words, although it would apply to a person who is still a juvenile
having not attained the age of 18 years but shall not apply to a person who has
already attained the age of 18 years on the date of coming into force thereof or
who had not attained the age of 18 years on the date of commission of the offence
but has since ceased to be a juvenile.
The embargo of giving a retrospective effect to a statute arises only when
it takes away vested right of a person. By reasons of Section 20 of the Act no
vested right in a person has been taken away, but thereby only an additional
protection has been provided to a juvenile.
In such situations, the Act should be read in such a fashion so that the
extended benefit can be granted even to the juvenile under the 2000 Act.
Furthermore, Sub-section (2) of Section 69 provides that all proceedings shall be
deemed to have been held under the new Act. This is also suggestive of the fact
that the new Act would, to the aforementioned extent apply to a pending
proceeding which was initiated under the 1986 Act.
No model rules have been framed in terms of the provisions of the Act so
as to attract the principles that rules validly framed are to he treated as part of the
Act. The age of the delinquent juvenile, therefore, cannot be determined in terms
of the model Rules. Any law mandating the court to take into consideration
certain documents over others in determining an issue must be provided for only
by law.
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The Court, therefore, must determine the age of the appellant keeping in
view thatthe relevant date for reckoning the age of the juvenile would be the date
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of occurrence and not the date on which he was produced before the Board.
Important observations of Justice S.B.Sinha:
1. The purpose of the Juvenile Justice Legislation is to provide succor to the
children who were being incarcerated along with adults and were subjected to
various abuses. To bring the operations of the juvenile justice system in the
country in conformity with the UN Standard Minimum Rules for the
Administration of juvenile justice, the Juvenile Justice Act came into existence in
1986.
2. A review of the working of the then existing Acts both State and
Parliamentary would indicate that much greater attention was found necessary to
be given to children who may be found in situations of social maladjustment,
delinquency or neglect. The justice system as available for adults could not be
considered suitable for being applied to juvenile. There is also need for larger
involvement of informal system and community, based welfare agencies in the
case, protection, treatment, development and rehabilitation of such juveniles.
3. The provisions of the Juvenile Justice Act, 1986 and the Juvenile Justice (Care
and Protection of Children) Act, 2000 are required to be construed having regard
to the aforementioned Minimum Standards as the same are specifically referred
to therein.
4. The Juvenile Justice Act, 1986 aimed at providing for a scheme of uniform
juvenile justice system in the country so that a juvenile may not have to be
lodged in jail or police lock-up as well as for prevention and treatment of
juvenile delinquency for care protection etc. The 1986 Act has been repealed and
replaced by the 2000 Act. The 2000 Act has brought about certain changes vis-a-
vis the 1986 Act. It has obliterated the distinction between a male juvenile and
female juvenile. In contrast with the definition of delinquent juvenile in the 1986
Act who was found guilty of commission of an offence, a juvenile in conflict
with law is defined in the 2000 Act to mean 'a person who is of below 18 years
203

of age and is alleged to have committed an offence'. Section 3 provides for


continuation of inquiry in respect of juvenile who has ceased to be a juvenile.
r
Hence a legal fiction has been created to treat a juvenile who has ceased to be a
juvenile as a person as if he had continued to be a juvenile.
5. Section 20 of the Act permits continuation of proceedings of a juvenile court
in any area on the date on which the Act came into force by providing “it shall
record such finding and instead of passing any sentence in respect of that
juvenile, shall forward him to the board which shall pass orders in respect of that
Juvenile in accordance with the provision of this Act as if it has been satisfied on
inquiry under this Act that juvenile had committed the offence.” Section 68
provides for rule making power of the State Government.
6. The legislation relating to juvenile justice should be construed as a step for
resolution of the problem of the juvenile justice which was one of tragic human
interest which cuts across national boundaries. The said Act has not only to be
read in terms of the Rules but also the Universal Declaration of Human Rights
and the United Nations Standard Minimum Rules for the protection of juveniles.
The Juvenile Justice Act specially refers to International law. The relevant
provisions of the Rules are incorporated therein. The International Treaties,
Covenants and Conventions although may not be a part of our Municipal law,
the same can be referred to and followed by the courts having regard to the fact
that India is a party to the said treaties. The law has to be understood, therefore,
in accordance with the International law. The Constitution of India and the
Juvenile Justice Legislations must necessarily be understood in the contest of
present days scenario and having regard to the International Treaties and
Conventions.
In Jai Kishan @ Jaiki Vs. State of Haryana a juvenile who had not
completed eighteen years of age 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

37
2010 (4) RCR (Criminal) 783
204

Juvenile Justice Act, 1986. Appellant Jai Kishan alias Jaiki, who was 17 years of
age on the day of commission of the alleged offence, i.e. 13.10.1997, was tried by
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the court of Sessions Judge, Rohtak for the offence under Section 302 IPC, for
committing the murder of Subhash, a co-villager. The court of Additional
Sessions Judge, Jhajjar, vide its judgment dated 16.8.2001, convicted the
appellant under Section 302 IPC. By the time, the appellant was convicted and
sentenced, the Juvenile Justice (Care and Protection of Children) Act, 2000 had
come into force. Under the Juvenile Justice Act, 2000, a new definition of
'juvenile in conflict with law' was introduced, which defined a juvenile who is
alleged to have committed an offence and has not completed eighteen year of age
as on the date of commission of such offence, whereas under the Juvenile Justice
Act, 1986, the upper age-limit for male children to be considered as juveniles was
16 years. On 13.2.1998, when the appellant was charge sheeted, he was 17 years
of age, therefore, he was not treated as a 'juvenile' under the Juvenile Justice Act,
1986, and he was tried by the regular criminal court and not by the Juvenile
Justice Board.
The court after considering Catina of authorities held the conviction of the
appellant recorded by the trial court vide judgment dated 16.8.2001, is upheld.
However, the order of sentence passed by the trial court on 18.8.2001, is hereby
set aside. Since the appellant is already on bail, therefore, there is no need to issue
the release warrant.
In Jabar Singh Vs, Dinesh & Anr. the appellant was fattier of Prahalad
Singh, alleged to have been murdered by the respondent no.l. Appeal was against
the order of the High Court of Rajastahan holding respondent no.l to be a juvenile
on the date of commission of the offence and directing the matter to be remitted
for trial under the Juvenile Justice (Care and Protection of Children) Act, 2000.
The relevant facts very briefly are that on 11.07.2004 one Bhomaram
lodged a complaint in Pratap Nagar Police Station, Jodhpur, against the
respondent no.l and others alleging the offence under Section 302 of the Indian

38
2010 (2) RCR (Criminal) 309
205

Penal Code alongwith other offences under the EPC. A criminal case was
registered and after investigation, the police filed chargesheet against inter-alia the
respondent no.l and the case was transferred by the Sessions Judge to the Special
Judge, SC/ST (Prevention of Atrocities) Cases, Jodhpur, for trial. Before the
charges could be framed in the case, an application was filed on behalf of
respondent no.l under Section 49 of the Act, stating therein that the date of birth
of respondent no.l was 05.10.1988 and, therefore, on 11.07.2004, when the
offence is alleged to have committed, the respondent no.l was less than 18 years
of age and he was, thus, a juvenile and has to be tried separately from the other
accused under the Act. The State of Rajasthan, in its reply, stated inter-alia that the
respondent no.l did not disclose that he was a juvenile at any time during the
investigation of the case or during the trial of other criminal cases for which he
was being tried and that he has taken this plea for the first time to avoid the trial
for the henious crime and that the application of respondent no.l examined
witnesses and produced documents in support of his claim that he was a juvenile.
The State of Rajasthan did not produce any evidence. The trial court, after hearing
the parties and considering the evidence, rejected the application of the
respondent no.l by order dated 14.2.2006. Aggrieved, the respondent no.l filed
criminal revision petition before the High Court. The High Court allowed the
revision petition, set aside the order dated 14.02.2006 passed by the trial court and
remitted the matter to the trial court for trial of the respondent no.l treating him to
be a juvenile on the date of commission of the alleged offence in accordance with
the provisions of the Act. In these facts the Supreme Court of India held that the
High Court was not at all right in reversing the findings of the trial court in
exercise of its revisional jurisdiction. The entry of date of birth of respondent no.l
in the admission form, the school records and transfer certificate did not satisfy
the conditions laid down in Section 35 of the Evidence Act inasmuch as the entry
was not in any public or official register and was not made either by a public
servant in the discharge of his official duty or by any person in performance of a
duty specially enjoined by the law of the country and, therefore, the entry was not
206

relevant under Section 35 of the Evidence Act for the puipose of determining the
age of respondent no.l at the time of commission of the alleged offence and
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resultantly, the appeal was allowed setting aside order dated 18.8.2006 and remit
the matter to the trial court for trial of respondent no.l in accordance with law
treating him not to be a juvenile at the time of commission of the offence.
In Dharambir Vs. State (NCT of Delhi) & Anr.39 the question for
determination is whether or not the appellant, who was admittedly not a juvenile
within the meaning of the Juvenile Justice Act, 1986 when the offences were
committed but had not completed 18 years of age on that date, will be governed
by the Act of 2000 and be declared as a juvenile in relation to the offences alleged
to have been committed by him ?. The Supreme Court taking into account Umesh
Chandra, Amit Das, Pratap Singh's cases and provisions of Section 7A and 20 of
the Juvenile Justice Act, 2000 and Rules of 2007 held that 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 (I) 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. It further held that all
persons who were below the age of eighteen years on the date of commission of
the offence even prior to 1st April, 2001 would be treated as juveniles even if the
claim of juvenility is raised after they have attained the age of eighteen years on
or before the date of the commencement of the Act of 2000 and were undergoing
sentences upon being convicted.
In Ram Suresh Singh Vs. Prabhat Singh alias Chhotu Singh & Anr.40
respondent no.l was facing trial in Nava Nagar P.S. Case No.102 of 2003 on the
charge of committing murder of one Tribhuvan Singh. Appellant in the case was
the uncle of the deceased.

39
2010 (2) RCR (Criminal) 773
40
2010(1)RCR (Criminal) 245
207

Before the learned trial judge, a plea was raised by him that he was a
juvenile. In support of the said plea, entries in the admission register/certificate in
the Government Secondary School, Navanagar, Buxar, in which he took
admission on 22nd January 1996 and studied up to 31st December 1999 were
produced. The said admission register/certificate showed that the date of birth of
the accused was 10.2.1987.
The learned Magistrate, however, appointed a Medical Board. The
Medical Board, in its report dated 10 February, 2005, inter-alia, upon taking
ossification test, estimated his age to be within 20 to 22 years. The Principal
Magistrate Juvenile Justice Board Patna vide order dated 3 August,2005 held that
on the date of occurrence age of respondent no.l was more than 20 years.
Respondent no.l filed a revision application before High Court of Patna which
was allowed. The High Court took into consideration the certificate issued by
Head Master of the High School stating the date of birth of the
petitioner/respondent as 10.2.87. In support of age, the admission register of the
school was also produced wherein his name was mentioned at Sr.No.134. There
also date of birth of the petitioner was mentioned as 10.2.1987. The date of
issuance of school leaving certificate was mentioned as 23.2.2000. There is no
reason for doubting or suspecting the genuineness of these two documents.
The order of High Court was challenged before Supreme Court which
finding no legal infirmity in the order dismissed the appeal and held that an entry
in a school register may not be a public document and, thus, must be proved in
accordance with law, as has been held by this court in case of Biradmal Singhvi41,
but in this case the said entry has been proved. Even if we had to consider the
medical report, it is now well known that an error of two year in determining the
age is possible. The court further observed that we are not oblivious of the fact
that it is difficult to lay down a law as to whether in a case of this nature, the
lower or the upper age or the average age should be taken into consideration.
Each case depends on its own facts. In this case, however, the documents

41
Biradmal Singhvi v. Anand Pvrohit 1988 (Supp.) SCC 604
208

produced by respondent no.l were not found to be forged, fabricated or otherwise


inadmissible in law. If a document is proved to be genuine and satisfies the
requirement of law, it should be, subject to just exceptions, relied upon.
In Mohan Mali & Anr. Vs. State of M.P42 the appellants alongwith two
other co-accused, were convicted under Section 302, 326, 324 IPC and sentenced
to life imprisonment alongwith fine of Rs.5,000/- for offence under Section 302
IPC apart from other sentences for the other offences. The relevant facts are that
on 17 July, 2009, when the Special Leave Petition came up for admission before
Supreme Court, leave was granted and the hearing of the appeal was expedited.
However, the Appellants' prayer for bail was rejected at that stage. When the
matter was being heard for grant of leave, appellant no.2, Dhanna Lai, and this
Court observed that in the event Dhanna Lai was able to provide proof of his
claim that he was a juvenile on the date of the incident, he would be at liberty to
apply afresh for grant of bail with such supporting evidence. Pursuant thereto, a
fresh bail application was filed on behalf of Dhanna Lai on 27th January, 2010,
annexing a copy of the Birth Certificate of Dhanna Lai issued by the Chief
Registrar (Birth and Death), Municipal Corporation, Dhar, under Section 12 of the
Birth and Death Registration Act, 1969, maintained by the Corporation. From the
said certificate it appears that Dhanna Lai's date of birth was recorded as 12th
November, 1976 and was registered on 17th November, 1976, making it a
document which was contemporaneous with his birth. Upon due verification, it
was confirmed on behalf of the State of Madhya Pradesh that the Appellant no.2,
Dhanna Lai, was a juvenile on the date of commission of the offence.
The Supreme Court observed:
“8. In the facts of this case, we are faced with a situation where the
juvenile, Dhana Lai, had already been tried along with adults and
had been convicted under Sections 302/34, 326/34 IPC and was
sentenced to life imprisonment, out of which he has already
undergone about 9 years of the sentence. Rule 98 of the 2007

42
2010 (2) RCR (Criminal) 839
209

Rules, in our view, squarely applies to Appellant No.2 Dhanna


'" Lai's ease. His case is to be considered not only for grant of bail,
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but also for release in terms of the said Rule since he has
completed more than the maximum period of sentence as provided
under Section 15 of the 2000 Act”.
9. The legal position has been clearly explained in Hari Ram's case
(supra) and does not, therefore, require any further elucidation in this
case.
10. Having regard to the fact that the appellant no.2, Dhanna Lai, was
a minor on the date of commission of the offence, and has already
undergone more than the maximum sentence provided under Section
15 of the 2000 Act, by applying the provisions of Rule 98 of the 2007
Rules read with Sections 15 and 64 of the 2000 Act, we allow the
appeal as far as he is concerned and direct that he be released
forthwith. The bail application filed on his behalf is also disposed of,
accordingly.”
In most of the cases discussed above, the beneficial provisions of the
Acts were not applied at earlier stages because no one—the children, then-
lawyer, the State counsel, or the Magistrates raised the plea of child status. The
Supreme Court itself has followed contrary approaches without reference to
other cases decided by it. In view of widespread unawareness amongst the
persons, it is only reasonable that the children should not be denied the
protection of the progressive and beneficial legislation simply for failing to
raise the plea of child status at the appropriate time. The majority of children
falling within the scope of the JJS are poor, illiterate, and unaware of then-
rights or obligations of others towards them. They cannot be expected to know
that such a law exists for their benefit and that they should ask for its
application at the earliest. To ensure the protection of the beneficial legislation
to children some flexibility should be adopted in cases where the plea of child
status is not raised.
In Lai Mohd. v. State,43 the revision was filed in the Delhi High Court
against the order of the Court of Sessions which declined to accept the claim of
the petitioner Lai Mohd. to be treated as a juvenile. The High Court after going
through the evidence declined to interfere with the order of the Courts below as
there was no reliable material except the opinion of the Medical Board because
the school records were not properly maintained.
The school recorded the date of birth without any documentary proof relying only
on the statement of the father of the petitioner about the date of birth of the
petitioner. The court held that school record in this situation loses much of its
evidentiary value. The court relied on the opinion of the Medical Board which
opined that the petitioner was more than 21 years of age.
In Parameswarn v. State of Kerala,u juvenile was produced for the first
time before the Children’s Court established under the JJ Act of 1986 on 4.11.96
when he had completed 17 years of age, his date of birth being 6.10.79. Relying
on Amit Das’s judgment, he was held not to be juvenile, when he was brought
before competent authority, on 4.11.96, and therefore he was tried by the Sessions
Court. The trial started on 26.11.98 by which time he had crossed the age of 18 as
well. The trial was completed and judgment was pronounced finding him guilty
on 25.1.2002, by which time J.J Act 1986 was repealed and JJ. (C&P) Act, 2000
came into force. He was sentenced to one year rigorous imprisonment. He
challenged his conviction in the Kerala High Court.
The High Court upheld the conviction but set aside the sentence the
following reasons:
When the date of production of the incumbent is considered, with
reference to the date of sentence, applying the law then in force, it has to be held
that the second accused was a juvenile going by Act of 2000, which was prevalent
as on the date of sentencing.
A person who had not been a juvenile, as per the Act of 1986, and tried by
an ordinary court and sentenced, if found to be a juvenile, on enforcement of the

43
119 (2005) DLT 353
44
2004(2) KLT 1140
Act of 2000, shall have to be sent out of the jail, to be-dealt with in accordance
with.the Act of2000 as provided in Section 64 of the Act of2000.
Thus, a person who had been tried as not a juvenile and sentenced for
imprisonment, being not a juvenile in terms of Act, 1986, may get the benefit of
Act of 2000 in spite of termination of the trial and suffering of imprisonment in
part ordered by a Court. Benefit, which could be given to a convict shall also be
extended to an under-trial as well. Of course, for the commencement of the trial
1986 Act has to be applied, but as the Act of 2000 has been enforced, before its
termination, necessarily, when the sentence was imposed, the trial Court was
bound to follow the provisions contained in the Act 2000.
In case of Munshi Khan v. State ofRajasthan,45 appellant was arrested on
the charges of murder. His case was committed to the Court of Session. During
his trial at the Sessions Court, he filed an application under section 49 of the
Juvenile Justice (Care and Protection of Children) Act of 2000 with a prayer that
on the date of incident he was below the age of 18 years as indicated by the
transfer certificate issued by Upper Primary School. He further made a request
that an inquiry in respect of his age be conducted as per provisions of Act of 2000.
The Additional Sessions Judge rejected that application inter alia holding
(i) that the original certificate was not produced through which the accused-
petitioner took admission in the 6th Class for the first time in 1998. Hence it is not
clear that how for the first time he was admitted in the 6th Class,
(ii) prior to getting admission in Upper Primary School, it has not been mentioned
that in which school, the accused-petitioner studied and if studied certificates have
not been produced,
(ill) at the time of hearing of the bail application, the transfer certificate issued by
Upper Primary School, was not produced.
On these grounds, Additional Sessions Judge declined to make further inquiry in
respect of the age of the accused-petitioner. Aggrieved from the order passed by
the Additional Sessions Judy, the accused-petitioner filed revision petition under

45
2004 (110) CRLJ 3465 -RAJ
212

section 397 of Criminal Procedure Code before the Rajasthan High Court.
The revision-petition was allowed by the Rajasthan High Court and the
impugned order passed by the Additional Sessions Judge was quashed and set
aside and the matter was remanded back. Additional Sessions Judge was directed
to make fresh inquiry in respect of determining the age of the accused-petitioner
as envisaged under section 49 of the Act of 2000 including recording of the
statements of the witnesses and if necessary calling for the record. It was further
directed that if enquiry establishes that the accused-petitioner was below the age
of 18 years on the date of occurrence his case should be remitted to the concerned
juvenile court.
The court laid down that burden of proving the age of a delinquent is not
on Juvenile delinquent and it is for the Court to hold an inquiry into the age to
find out whether such a person would be a delinquent Juvenile for the purpose of
the Act of 2000.The plea of minority under the Juvenile Justice Act, 2000 may be
taken at any stage of the case, even in appeal and the minority of the concerned
offender has to be determined on the date of occurrence and not on the date when
he appears before the Court or even though he becomes major during the course
of trial.
The court observed:
(i) under section 49 of the Act of 2000 when a person is brought
before file competent authority and if there is an application for
determination of the age of alleged juvenile, an inquiry should be
made as to the age of that person and for that purpose the
competent authority shall take such evidence as may be necessary
and shall record positive finding whether the person is a Juvenile
or not, stating his age as nearly as may be. This duty is cast upon
the court to make due inquiry and it cannot be brushed aside.
Since, in the present case such inquiry was not made by the
Additional Sessions Judge, therefore, his order suffers from basic
infirmity and illegality, and cannot be sustained.
213

(ii) It has become a settled principle of law that the plea of


minority under the Juvenile Justice Act, 2000 may be taken at any
r

stage of the case, even in appeal and the minority of the concerned
offender has to be determined on the date of occurrence and not on
the date when he appears before the Court or even though he
becomes major dining the course of trial. This being the position of
law, the findings of the Additional Sessions Judge are erroneous
one on the point that the plea about the age was not taken by the
accused at the time when his bail application was heard. From that
point of view also the impugned order cannot be sustained.
(iii) Since it is the duty of the court to determine the age, if there
was any doubt in the mind of the court about the genuineness of
the transfer certificate given by the school, the court must itself
remove that doubt after calling of the original record from the
school as it was the duty of the court to get it verified. The
Additional Sessions Judge neither called for the original record
from the school nor called for the person by whom the transfer
certificate was issued, therefore, the court failed in discharging its
obligatory duties.
In Ratan Lai @ Ram Ratan v. State of Rajasthan,46 charge-sheet for the
offences under the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act. 1989 was filed against the petitioner and other co-accused persons
wherein the allegation against him was that he along with others abducted Kumari
Tinkle and committed gang rape on her. Thereafter, petitioner filed an application
on 3-7-2003 before the trial Court for sending his case to the Children Court for
trial. A similar application was also filed by co-accused Sardara on the same day.
Both the applications were disallowed. This revision petition was directed against
the order passed by the Special Judge, Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, Alwar whereby the application filed by the

46
2004 Cr.L.J. (Raj) 734
214

petitioner for sending his case W to the Children Court was refused.
The High Court allowed the revision petition. The order of the Special
r

Judge, SC and ST (Prevention of Atrocities) Act, Alwar was quashed and the case
was remitted back to conduct inquiry with regard to the age of petitioner and it
was directed that if he is found to be a juvenile or the child, he may be forwarded
along with the relevant record to the competent court for his trial in accordance
with the provisions of the Act of 2000 and if found otherwise he may proceed to
decide the Sessions case as per law.
It was observed by the High Court:
(i) no inquiry was made with regard to determination of age of the
petitioner and the Magistrate before whom the petitioner was
produced had not exercised powers vested in him under section 7
of the Act of 2000. Instead of forwarding the petitioner along with
the record to the competent authority having jurisdiction over the
proceeding he committed the case to the trial court. The trial court
also did not make any inquiry with regard to the age as no such
objection or application was made before that court.
(ii) petitioner has placed on record a certified copy of the bail order
passed by the Add. Sessions Judge, Behror from which it is evident
‘ that being bom on 2-9-1984, the petitioner was less than 18 years
of age on the date of occurrence i.e. 5-4-2002 and he appeared to
be a child or a juvenile. The law does not envisage trial of such an
accused by the court below. He can be tried by the Principal
Magistrate, Juvenile Justice Court. Thus, the trial by the Sessions
Court against a juvenile stands vitiated because of the inherent lack
ofjurisdiction to conduct trial against the juvenile’ or the 'child'.
(iii) the trial court was empowered under section 6(2) of the Act of
2000 to conduct the inquiry in accordance with the provisions of
section 49 of the Act of 2000 with regard to the determination of
age of petitioner. The trial court has taken the view that such an
objection could not be raised at the stage of trial particularly at the
fag end of the trial, though, the provisions with regard to holding
due inquiry about the age of a person who appears to be a juvenile
or the child are mandatory.
(iv) in the instant case, it is evident that the plea of juvenility was
raised even at the initial stage of bail and petitioner was granted
bail on the ground of his being a juvenile. In this view of the
matter, therefore, the order passed by the Court below cannot be
sustained and deserves to be quashed so far as the petitioner is
concerned. Consequently, petition was allowed.
Facts of the case of Mahendra Singh v. Stare of Rajasthan,47 are that the
appellant faced trial for having committed murder. Trial judge convicted and
sentenced him to undergo imprisonment for life. The appellant contended that on
the date of the incident he was less than 18 years of age and as per the Juvenile
Justice (Care and Protection of Children) Act, 2000, he was juvenile, and,
therefore, in view of Section 20 of the JJ Act he could not have been sentenced.
Pursuant to the direction given by the Rajasthan High Court, the Additional
Sessions Judge, Sikar made an enquiry about the age of the appellant and on the
basis of Secondary School Examination Certificate and other evidence observed
that on the date of incident the age of the appellant was 17 years, 10 months and
28 days.
On these facts the and on the basis of the inquiry made by the Additional
Sessions Judge, Sikar that appellant was juvenile, the Court, while maintaining
the conviction of the appellant, set aside the order of sentence and remitted the
case back again to the Additional Sessions Judge, Sikar with the direction to
forward the appellant to the Juvenile Justice Board to pass appropriate orders in
terms of Sections 15 and 16 of the J.J. Act, 2000 and Rules made thereunder.
The Court observed,
(i) The JJ Act came into existence with effect from April 1, 2001.

47
2004-(110)-CRLJ -1606 -RAJ
216

Section 20 of the JJ Act provides special provision in respect of


pending cases that notwithstanding anything contained in this Act,
r
all proceedings in respect of a juvenile pending 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.
(ii) Sub-rule 2 of Rule 62 of the Juvenile Justice (Care and
Protection of Children) Rules, 2001 provides that all pending cases
which have not received finality shall be dealt with and disposed of
in terms of the provisions of the JJ Act and the rules made
thereunder.
(iii) Section 6 of the JJ Act provides that the Juvenile Justice Board
shall deal exclusively with all proceedings under the JJ Act relating
to juvenile. Sub- section 2 of Section 6 mandates that the powers
conferred on the Board may also be exercised by the High Court
and the Court of Session, when the proceeding comes before them
in appeal, revision or otherwise.
(iv) Although the appellant was convicted and sentenced on July 3,
1997 and the JJ 'Act came into existence w.e.f. April 1,2001 but in
view of Section 6(2) of JJ Act and Rule 62(2) of JJ Rules instant
criminal appeal comes within the definition of pending cases,
therefore, we have to deal with the appeal in accordance with the
provisions contained in JJ Act as on the date of incident the
appellant was less than 18 years of age and a juvenile. Accordingly
we hold that sentence awarded to the appellant is not sustainable in
217

view of Section 20 of the JJ Act.


r In Parmod Kumar Sethi v. State of Orissa,48 a petition was filed before
the Additional Sessions Judge by the accused-petitioner that he is a juvenile and
as such be tried under the Juvenile Justice Act. The Additional Sessions Judge
remitted the case to the designated juvenile court of Additional Chief Judicial
Magistrate-cum-Presiding Officer, Juvenile Court, Rourkela for determination of
the age of the accused and furnish a report within two months. This designated
. juvenile court held that the accused was a juvenile on the date of occurrence and
as such should be tried in the juvenile court. The State challenged the order in
appeal and Additional Sessions Judge allowed the appeal and remitted the matter
back to the Addl. C -J .M. The Addl. C J .M. on enquiry and on the report of the
Radiologist and ossification test held that the accused-petitioner was a juvenile.
The State filed an application against this Ending and the matter was reopened
and the same designated juvenile court relying on the decision of the Apex Court
in Amir Dos v. State of Bihar held that on the relevant date, when he was
produced before the competent Court on 24-3-2001, the petitioner being aged 17
years, was not a juvenile within the meaning of the provisions of the Juvenile
Justice Act, 1986.
The present revision was filed by the accused against this order. The
accused-petitioner submitted that the criminal courts are not vested with the
power to review their own orders, excepting for clerical or arithmetical errors.
The order of the Addl. C.J.M., designated juvenile court, once having passed an
order on 13-9-2001 that the petitioner was a juvenile delinquent could not have
reviewed the said order by his subsequent order dated 1-10- 2001 unsettling the
position, on the application of the Additional Public Prosecutor- Such order is
clearly without jurisdiction and liable to be quashed. The State, on the other hand
submitted that since the earlier order of the Addl. C.J-M.-cum- juvenile court was
contrary to the principle of law laid down by the Apex Court and that illegality
having come to the knowledge of this Court, this Court should take judicial notice

48
20G4-(110)-CRLJ -1858 -ORI
218

of the same and may set aside the said order in exercise of the inherent powers of
the Court.
r
The High Court found that the order declaring the petitioner as a juvenile
delinquent and as such to be tried by the juvenile court in accordance with the
provisions of the Juvenile Justice Act was not challenged by the State in appeal
under Section 37 of the Act and it had become final, but after the appeal period
was over, an application was filed for review of the order on the basis of the
decision of the Apex Court in Amit Dass case. The High Court held that “the
competent court once having held that the delinquent petitioner was a juvenile
was not authorized to review his own order unless it comes within the scope and
ambit of Section 362 of the Code of Criminal Procedure. In such view of the
matter, the impugned orders of the Additional Sessions Judge as well as the Addl.
C J .M. dated 1-10-2001 are set aside. Consequently, the order of the designated
juvenile court declaring that the petitioner is a juvenile and to be tried as such
stands revived and the case is to proceed accordingly in accordance with law
promptly. Revision allowed."
Following observations were made by the court,
(i) The enquiry as to the age of the juvenile has to be made when
he is brought or appears before the competent authority and the
Police Officer or a Magistrate who is not empowered to act or
cannot act as a competent authority. It has to merely form an
opinion guided by the apparent age of the person and in the event
of forming an opinion that he is a juvenile, he has to be forwarded
to me competent authority.
(ii) The competent authority then shall proceed to. hold enquiry as
to the age of that person for determining the same by reference to
the date of the appearance of the person before it or by reference to
the date when the person was brought before it under any of the
provisions of the Act.
(iii) The date of the commission of the offence is irrelevant for
219

forming out whether the person is a juvenile within the meaning of


* ~ clause (li) of Section 2 of the Act The crucial date for determining
r
the question whether the person is a juvenile is the date when he is
brought before the competent authority. Amit Das decision relied
on.
In Hemal Mian v. State of Jharkhand,49 the petitioner submitted that he
been falsely implicated in the case and he is a juvenile and the Court below did
not consider the case of the petitioner though the petitioner is a juvenile. The
Jharkhand High Court sent back the case to the concerned court for determination
of the age of the petitioner and directed the concerned court to pass a fresh order
in view of decision arrived at.
In Moti Lai Hansda v. State ofBihar,50 the appeal was directed against the
judgment of the Additional Sessions Judge, Godda convicting the appellant and
sentencing him to undergo rigorous imprisonment for 2 years. The appellant
submitted that he was juvenile on the date of occurrence. Though the said
question was raised before the trial Court during evidence and was supported by a
reliable document, the trial Court rejected the said prayer to treat the appellant as
juvenile mainly on the ground that he has crossed the age of juvenile during the
course of proceeding and that at the time of hearing bail application he himself
stated that he was aged more than 16 years, therefore no inquiry was made about
his age. The appellant submitted that a copy of the certificate duly attested by the
Principle of the School was produced to show that appellant's date of birth was
9th August. 1975. Accordingly, he was aged 15 years and 10 months at the time of
alleged occurrence i.e. 10.6.1990.
The High Court after going through the order of refusal of trial court and
certificate produced by the appellant before the trial Court about his date of birth
held that appellant was juvenile on the date of occurrence. The Court found that
since appellant has got no criminal antecedent, he was juvenile at the time of
occurrence, benefit of doubt can be given to him and therefore set aside the

. 49
2004-(110)-CRLJ -1503Jha
50
2004 (4) JCR 171 (Jhr)
220

judgment under appeal. The appellant was discharged from bail bonds. Appellant
was not sent to Juvenile Court, as he had crossed the age ofjuvenile.
In case of Girish v. State of Kerala?1 the concurrent verdict of guilty,
conviction and sentence imposed on the Petitioner - accused under Section 394
IPC were assailed by him in this revision petition on the ground that he was a
juvenile and for proving the same he took the help of a certificate issued by the
Head Master of the School, where he was studying. This certificate stated that the
petitioner-accused was a juvenile (bom on 3.5.74) on the date of the crime-night
of 20-5.89, hence below the age of 16 years and a juvenile. The prayer was made
to quash the entire proceedings before the courts below.
The revision petition was allowed in part by the High Court. The
impugned conviction and sentence imposed on the petitioner by the courts below
were set aside. It was held that on the materials available, the prosecution has
succeeded in proving that the petitioner has committed the offence punishable
under Section 394 IPC but because he was a juvenile on the date of commission
of the offence, he deserves to be dealt with under section 15 of the Juvenile
Justice Act, 2000. In that view of the matter, the petitioner was directed to pay a
line of Rs. 3,000/ under Section 15(l)(d) of the Juvenile Justice Act, 2000.
It was held by the court that the finding that the petitioner is guilty of the
offence alleged against him is eminently correct and does not call for interference
by invoking the revisional jurisdiction of superintendence and correction vested in
this Court.
The police did not make any enquiries to authentically ascertain the age of
the accused. Not to be thrown into a controversy regarding the age of the
petitioner, they conveniently showed his age as 17 years so that the Juvenile
Justice Act, 1986 would not apply. The Magistrate did not pointedly consider this
question.
The petitioner, on the date of the offence as also on the date on which he
was produced before a court was a juvenile aged less than 15 years and one

51
2004(1) KLT 419
221

month. He was a child both on the date of commission of die offence as also on
the date of his production before the Magistrate. The Magistrate erred grossly in
r

not making attempts to ascertain the age of the petitioner shown as 17 only in the
final report, in spite of the very specific directions which were given by the
Supreme Court.
Every court is obliged to apply its mind and come to a definite and positive
finding about the age of the indicate in a case like the instant one before
proceeding to take up the case and deal with the indicate. The Magistrate had
obviously not complied with the mandate of law before choosing to proceed
further against the petitioner. ,
Even though the Juvenile Justice Act, 2000 has come into force and the Juvenile
t

Justice Act. 1986 has been repealed, the structures have not come into place yet.
The rules have been promulgated only very recently though the Act came into
force much earlier. Though the JJB alone is competent to deal with a child in
conflict with the law, no such JJB has been constituted. This Court cannot
therefore send the petitioner to a JJB constituted under Juvenile Justice Act, 2000
to continue further proceedings.
To avoid a vacuum and to ensure ends of justice, it can certainly be held
that until a JJB is constituted in accordance with the Juvenile Justice Act, 2000
and the Rules promulgated, all Judicial First Class Magistrates or all Chief
Judicial Magistrates shall be competent to exercise functions of the JJB.
Considering the fact that in Kerala, the Chief Judicial Magistrates sitting alone
used to discharge functions of the Juvenile Courts under the Juvenile Justice Act.
1986, it can certainly be held by invoking powers under Section 482 Cr. P.C ., that
the Chief Judicial Magistrates must exercise such functions of the JJB to be
constituted under Section 4 of the Juvenile Justice Act, 2000. Until the Boards are
constituted the only safety valve is to stipulate that the Chief Judicial Magistrates
shall have to exercise such functions.
Section 20 of the Juvenile Justice Act, 2000 as also Section 26 of the
Juvenile Justice Act, 1986 deal with situations where on the date of
222

commencement of the respective Acts, proceedings al-e pending before any court
in respect ofjuveniles. Such proceedings are to be disposed of as if the respective
Juvenile Justice Act had not been passed. Such courts, before which proceedings
are pending in respect of the juveniles must proceed and record a finding whether
the juvenile has committed offence or not. Alter recording such finding, such
court is to refer the juvenile to JJB so that appropriate orders under Section 15 of
the 2000 Act (and the corresponding provision under the 1986 Act) can be passed
by such JJB. Section 20 of the Juvenile Justice Act, 2000 may also not specifically
apply as the said provision obliges the courts to continue with the proceedings as
if the Act had not been passed. If the 2000 Act had not been passed, proceedings
must continue under the 1986 Act before the Juvenile Courts constituted under the
1986 Act and if 1986 Act were not passed proceedings have to continue under the
Children Act applicable to Kerala. Therefore strictly speaking even Section 20
may not apply to the case on hand as the trial is vitiated and even if the 2000 Act
had not been passed, proper trial cannot continue except under the Juvenile
Justice Act, 1986. Section 20 of the 2000 Act and Section 26 of the 1986 Act
cannot be read and understood to mean or authorize continuation of the trial till
the stage of imposition of sentence, if such trials are otherwise illegal or without
jurisdiction.
Section 6(2) of the Juvenile Justice Act, 2000 declares that the powers conferred
on the Board under the Act can also be exercised by the High Court and the Court
of Sessions when the proceedings come before them in appeal, revision or
otherwise. Section 6(2) of the Juvenile Justice Act, 2000 can be given meaning
and effect so that this Court can persuade itself to exercise the powers of JJ Board
notwithstanding the fact that the trial held is vitiated and is not in accordance with
law.
The ideally correct course legally to be followed by this Court is to set
aside trial held against the petitioner and send the matter back to the JJB
constituted under the Juvenile Justice Act, 2000 (or until such Board is
constituted, to such authority who can exercise the powers of the JJB under the
223

Act). But such a course would, in the facts of this case, cause great injustice. It
would amount to miscarriage of justice. The petitioner will have to unnecessarily
stand the trauma of trial. The State will have to unnecessarily bear the expenditure
of a further trial now. In any view of the matter, in the peculiar facts of this case,
such technically ideal course which this Court can follow will not cater to the
ends of justice. In these circumstances powers under Section 482 Cr.P.C. can be
invoked- The provisions of Section 20 and Section 6(2) of the Juvenile Justice Act
can be borne in mind and this Court which is competent to exercise the powers of
the JJB under Section 6(2) of the Act can come to a Ending that the petitioner has
committed the offence. Appropriate orders under Section 15 can also be passed by
this Court to avoid further protraction and infliction of trauma on the petitioner-
accused.
The nature of the orders that a JJB can pass, are enumerated under Section
15 of the Juvenile Justice Act, 2000. The nature of orders that cannot be passed
against the juveniles are enumerated in Section 16 of the Act.
The petitioner cannot be sentenced to imprisonment. He cannot be
committed to prison in default of payment of line. He was aged less than 15 years
on the date of the offence. This therefore, according to me, is a tit case where this
Court would be justified in directing payment of line under Section 15(l)(d) of the
Juvenile Justice Act, 2000, of course without imposing any default sentence as the
same is prescribed by Section 16.
In Kavi @ Stalin v. State, It was observed:
‘...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

2004-(110)-CRLJ-1652-DEL
224

may be, for obtaining creditworthy evidence about age. The


Magistrate may as well call upon accused also to lead evidence
r
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”.
In Khunnu Yadav v. Rajesh Maurya and another , respondent claimed to
be juvenile on the date of the occurrence. The trial court got him medically
examined and the medical report showed that he was 19 years. He was therefore
held not to be juvenile. But when he filed revision petition in the high court and
produced certificate from the school which proved he is juvenile, high court
declared him to be juvenile. Against this decision, appellant brother of the
deceased, murdered by respondent, approached the Supreme Court. The Supreme
Court allowed the appeal and held that that the crucial date for determining the
status as juvenile is the date when he is brought before the competent authority
and not the date when the offence is committed. Since in this case, accused moved
the application for determining his status as juvenile after he attained the age of
16 years, he cannot be treated as juvenile.
In Om Prakash (alias Raju) v. State ofUttraanchal54, regarding the age of
the appellant, a contention was raised that he was juvenile at the time of
commission of crime. No proof was however adduced in support of this. Also, the
high court noted that he had opened the bank account in Punjab National Bank at
Dehradun. Relying on this bank account both High Court and the trial court took
the view that the appellant would not have been in position to open the account
unless he was a major and declared himself to be so. In the Supreme Court,
appellant challenged this view. The Supreme Court dismissed his appeal and held
that the approach of the trial court as well as the high court on this aspect cannot

53
(2003) 10 SCC 291
54
(2003) 1 SCC 648
225

be faulted.
'' In Surinder Singh v. State of UP55, the Supreme Court observed that when
r

no plea is raised by accused that he is juvenile, then the Court on its own is not
required to determine the age of the accused in absence of such plea.
In case of Vikrant Kumar Alias Sonu v. State of U.P. and another56, a
complaint was lodged against the applicant for an offence under Section 377, 511
I.P.C. When the charge sheet was submitted in court the applicant claimed himself
to be a juvenile and sought the benefit of Juvenile Justice Act thereby desired to
be tried by a Juvenile Judge. In support he had filed a High School Certificate
issued from the Board of High School and Intermediate Education, U.P.
Allahabad. In this certificate the date of birth of the applicant was mentioned as 1-
1-85. The complainant strongly contested the claim of his being a juvenile in
revision and advanced the submission that he appeared in High School
examination in 1998 from National Inter College Badhaiganj. The said school
has not issued a certificate to him on his demand. He therefore demanded an
appropriate order from the Court for issuing the same to him. He made an
application before Juvenile Judge for giving him necessary order in this regard.
An order was given but despite that the copy of school leaving certificate was not
issued to him.
The applicant was subjected to medical examination also. The medical
examination report showed that he was about 17 years at the time of his medical
examination. The complainant also filed a copy of extract of Parivar Register,
according to which the year of birth of this applicant was shown 1980. This was
challenged by the father of the accused by filing an affidavit wherein it has been
averred that in the copy tiled by the complainant the date of birth, was wrongly
shown. The date shown therein is that of his„ eldest son and, not of this applicant.
No counter-affidavit was filed by the complainant to the affidavit filed by the
father of this applicant.
In these circumstances the Juvenile Court preferred to accept the High

55
(2003) 10 SCC 26
56
2003 Cr. U 1094 (All)
226

School Certificate produced by the father of the applicant as admissible in


evidence: Placing the reliance on the documents he declared the applicant a
r

Juvenile. However, the Additional District Judge, Gorakhpur in Criminal Appeal


against order passed by the Juvenile Judge, Gorakhpur reversed this Ending.
Accused thereafter filed revision against the order of the Additional District
Judge, Gorakhpur in the Allahabad High Court.
The High Court allowed revision and set aside the appellate Court’s order.
The applicant was declared a juvenile holding:
(i) The Complainant’s contention was that the trial judge erred in not making a
serious endeavour to call for the record from the National Inter College,
Badhalganj Bom where this applicant had appeared in High School examination
which would have furnished substantive evidence. In that certificate his year of
birth is 1982. The High Court held that the approach of the juvenile court cannot
be termed in any manner perverse or prejudicial to the interest of the complainant.
(ii) The court held that failure to file any response to an affidavit disputing entries
of extract of Parivar Register filed by complainant makes it clear that the
complainant had been manipulating the evidence against the applicant.
(iii) Submission that the applicant appeared in High School Examination from
National Inter College, Badhalganj in the past and failed was held to be a device
used by the complainant to defeat the claim of the applicant.
(iv) It was further held that the medical opinion varies by two years either way
and as the law stands the interpretation of the beneficial provisions to the accused
should be adhered to by the court strictly.
In Bhupendra and Others v. State of U.P,57 three appellants were
convicted and sentenced to life imprisonment for murder of two persons. The
defence was of denial and of false implication due to enmity. As the trial resulted
in conviction, they preferred appeal before the Allahabad High Court arguing that
the appellant Ajai Kumar was juvenile of less than of 16 years of age when this
incident took place on 20-10-1993. No plea was, however, taken about his age at

57
2003(109) Cr. LJ. 3921 (All)
227

the trial. The High Court ordered for his medical examination and also gave
opportunity to accused-appellant to produce any document in support of his age.
r
The accused-appellant did not file any affidavit or document in support of his age.
Also medical report established that he was not a juvenile at the time of the
incident. Therefore, the argument claiming the appellant Ajai to be juvenile at the
time of commission of this crime was held to be without foundation. It was held
to be simply a desperate attempt to get away from legal consequences of serious
crime committed by him.
In Vijai Singh and Another v. State of U.P. and Another51, the revision filed
against the order of Additional Sessions Judge, Fast Track Court Agra rejecting
the application of revisionist for holding them juvenile and sending the case to the
Juvenile Judge was dismissed by the high court on the ground that the relevant
date for the purpose of considering the question of juvenile would be either the
date on which the offence was committed or on the date when the offender was
brought to the Court or before the competent authority. Neither on the date of
commission of offence nor on the date of their surrender they were juvenile as per
the Juvenile Justice Act 1986, and therefore they were denied benefits of section
20 of the new Act of 2000 holding that the position with regard to the pending
cases is made clear enough which shows that if any trial is pending on the date of
enforcement of the new Act, the proceedings shall be concluded under the
provisions of the old Act. This provision has been made regarding the proceedings
in respect of a juvenile but it does not say that a person not held to be juvenile
under the old Act can be treated juvenile by the new Act if he is below the age of
15 years.
In case of Master Rajeev Shankar Lai Parmar & another vs. Officer-in­
charge, Police Station, Malad and Others 59 a First Information Report was filed
against accused for offences punishable under section 302 and 307 of the Indian
Penal Code. The case was committed to the Sessions Court. Though petitioner
had stated his age to be 22 years and accordingly was arrested and kept as

58
2003(109) Cr. L.J. 3461 (All)
59
2003-(109) CRLJ - 4522-BOM
228

undertrial prisoner, Sessions Judge found him to be much younger than 22 years
and ascertaining after an inquiry that he was below is years. Remanded his case to
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the Juvenile Justice Board (JJB). In spite of these directions, accused-petitioner


was neither shifted to the Observation Home nor was his case placed before the
JJB. On the other hand, the state challenged directions of Sessions Judge stating
that section 49 of the Act of 2000 does not permit him to record findings as to age
of the accused and pass an order on that basis. Public Interest Litigation was filed
in the Bombay High Court on behalf of accused-petitioner to declare the
petitioner's incarceration in Mumbai Central Prison unlawful and in violation of
the Juvenile Justice (Care and. Protection of Children) Act, 2000 and the
Constitution of India and with many other directions.
It was held that Sessions Judge can hold an inquiry as to age of accused on
his own under section 49 of the Act of 2000. Once it is established that accused is
juvenile, he should be immediately shifted to observation home and his case
should be transferred to the JJB. No time should be lost in taking such steps and if
any time is lost and accused Juvenile has to suffer, he should be compensated by
the state.
Criminal application filed by the state challenging the order of Sessions
Judge was dismissed. Respondents were directed to take immediate steps to shift
accused petitioner to the Observation Home and to produced him before the J J B.
Respondent state was ordered to pay compensation to petitioner of an amount of
rupees 15,000/- observing:
1. Keeping in view the provisions of the Act and the ratio laid down
by the Supreme Court in Gopinath Ghosh v. State of West Bengal,
Sheela Barse v. Union of India, and Bhola Bhagat v. State of
Bihar, the Additional Sessions Judge can exercise the power to
hold an inquiry and record a finding as to the age of the accused.
2. Regarding compensation to petitioner, it is an admitted fact that
the order was passed by the Additional Sessions Judge on 7th
March, 2003 and the order was received by the Thane Jail
zzy

Authorities on the same day i.e. on 7th March, 2003. However,


. because of non-availability of police escort, the order could not be
implemented and petitioner could not be shifted to the Observation
Home nor he could be produced before the JJB.lt is thus clear that
without there being any fault on the part of the accused, he was
kept in prison, firstly at Thane and then in Mumbai. Therefore, his
prayer for payment of compensation must be upheld. In the facts
and circumstances, therefore, ends of justice would be met, if the
respondent-State is ordered to pay to petitioner an amount of
compensation of Rs. 15,000/-.
In Mohammed Arif v. State of Rajasthan,60 the High Court found that the
A.C.J.M. did not take into consideration the opinion given by the Medical Board
which opined that the age of the accused petitioner was between 16 to 18 years
also. He mainly based his findings on the basis of the age of the accused petitioner
as stated in the Voters-list and on observation of his physical appearance in the
Court. He neither allowed an opportunity to cross-examine the witnesses nor
considered the material evidence available on the record. Consequently, the High
Court set aside the order of ACJM and directed the Additional Sessions Judge to
complete the inquiry regarding the age of the accused petitioner on the date of
occurrence after giving opportunity of hearing to both the parties and decide the
same afresh as far as possible within a period of one month from the date of
receipt of a copy of this order.
In Manjyoti v. State,61 much after lodging of FIR against accused-
petitioner his father filed an application for making an entry in the birth register
regarding the birth of accused-petitioner, alleging therein that his son is a
juvenile/minor. Furthermore except the oral evidence, there was nothing else on
the record to show that the accused-petitioner was a juvenile at the relevant time.
On the other hand, the ossification test showed that accused-petitioner Manjyoti
was not a juvenile. Furthermore, it was brought to the notice of the Court that

60
RLW 2003(2) Raj 867
61
2002(108) CRLJ 2777 P&H
230

Manjyoti had appeared as a prosecution witness in a Sessions trial in which he


had given his age as 21 years on the date when he had appeared as a witness in
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the said Sessions case. Hence the Courts rightly come to the conclusion that no
reliance could be placed on the birth entry in question and on the basis of the said
birth entry, the accused-petitioner could not be declared as a juvenile.
In Lallan Singh v. State of U.P. and Another62, the Sessions Judge,
Chandauli, held that the new Act received the assent of the President of India on
December 30, 2000 and was published in the Gazette Extra-Ordinary, on
December 30, 2000, therefore, the commencement of the Act was from 30-12-
2000. Holding same, he extended the benefit of new Act to the accused declaring
him as juvenile under Juvenile Justice (Care and Protection of Children) Act,
2000. The high court in revision reversed the order of the Sessions Judge, noticing
that the new Act came into force on April 1,2001.
In State of U. P. v. Ram Bharat and others etc63, for a gruesome crime in
which nine persons lost their lives on account of homicidal act, 53 persons were
prosecuted. Out of them two died during the trial, surviving 51 accused persons
were put up for trial. 25 accused persons were convicted on various counts and
sentenced to varying prison terms. The remaining 26 were acquitted. Against the
order of acquittal the State has preferred an appeal. Out of the convicted accused
two died during the pendency leaving only 23 surviving convicted appellants. Out
of 23 convicted appellants, three convicted accused persons were minors at the
time of the incident and, therefore, entitled to the benefit under the provisions of
the U.P. Children Act, 1951. It was urged on their behalf that they are entitled to
get the benefit of the provisions of the U.P. Children Act 1951. State on the other
hand placed reliance on the decision of the Apex Court in the case of Arnit Das v.
State of Bihar and urged that from a composite reading of the provisions of
Sections 3, 8, and 32 of the Juvenile Justice Act, 1986 it would be apparent that
the juvenility of an accused is to be determined with reference to the date which
he was brought to the Court or the Competent Authority.

62
2002 Cr.LJ. 1242 (All)
63
2002 Cr.L.J. 1529 (All)
231
a

The Court did not accept the stand taken by the State. It did not rely on
AmifDas decision holding that "there are catena of decisions of the Apex Court
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as well as other High Courts by which it is well established that juvenility of an
accused or his age has to be determined with reference to the date of the offence."
In this case no evidence either documentary or oral was led at any stage of the
trial to indicate that three accused were below 16 years of age on the date of the
incident. The Court, therefore, relied on the age as disclosed by them in their
statements under Section 313, Cr. P.C. which was less than 16 years of age on the
date of the incident and consequently, they were held to fall within the ambit of
expression "child" as defined in Section 2(4) of the U.P. Children Act. Section 2T
of the said Act prohibited sentence and imprisonment for any term to an accused
who was a "Child" as determined on the date of occurrence. Each one of the three
accused persons who fall in the category of "child" within the meaning of Section
2(4) of the U.P. Children Act was at the time of this appeal being more than 40
years of age, were not sent to any approved school or Children's Home under the
provisions of the said Act for being detained there. Therefore, the sentence of
imprisonment imposed upon these three accused persons was quashed.
In Rajinder Chandra v. State of Chhattisgarh and anr.64, accused was
. apprehended for an offence under section 302/34 of the Indian Penal Code. He
claimed himself to be a juvenile as having not attained the age of 16 years and,
therefore, entitled to the benefit of the Juvenile Justice Act, 1986. An enquiry was
held. And trial court as well as Sessions Court held that he was not juvenile. Both
the trial court and the Sessions Court scrutinized the evidence adduced on behalf
of the accused by applying the principle that it was the accused who was claiming
the benefit of the Juvenile Justice Act and therefore, the onus lay on him to prove
that he was a juvenile and inasmuch as the oral and documentary evidence
adduced by him left open room for doubt, the onus could not have been said to
have discharged. The accused was also subjected to radiological examination. In
ossification test report, he was opined to be of 15-16 years of age. The Sessions

64
AIR 2002 SC 748
232

court, by reference to Modi's Medical Jurisprudence, held that a variation of 2 to


3 years on either side was permissible in the result of ossification test, and
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therefore, on the basis of such test no definite opinion could be formed. Petitioner
thereafter approached the high Court of Madhya Pradesh. The High Court, in
exercise Of its revision jurisdiction, found the findings of both the court below it
to be legally infirm and hence not sustainable and noticed that though in the mark
sheet of class VIII of accused there appeared to be some overwriting but the same
was attested by the officer who had issued it. The high court held him to be
juvenile. Against this judgment of the High Court, victim’s father preferred
special leave petition before the Supreme Court of India.
The Supreme Court dismissed the appeal and agreed with the stand taken
by the High Court. It observed that "It is true that the age of the accused is just on
the border of 16 years and on the date of the offence and his arrest he was less
than 16 years by a few months only. But if two views are possible on the evidence
- one that he is juvenile and other that he is not, then the Court should lean in
favour of holding the accused to be juvenile in borderline cases.... ”
It was held that if two views are possible on the evidence - one that he is
juvenile and other that he is not, then the Court should lean in favour of holding
the accused to be juvenile in borderline cases.
In Kalinath Munda v. State of Bihar65 there being nothing to establish the
existence of Children’s Court when offence was committed or tried and in
absence of any positive evidence to determine the age of offender so as to attract
the provisions of the Bihar Children Act. 1982, the Supreme Court held that it is
impossible to undertake such an inquiry at this stage and held that extrapolation of
age at the time of occurrence from age mentioned in judgment of Sessions Court
is not by itself enough. However, appellant was permitted to approach State
Government for commutation of sentence under Criminal Procedure Code.
In Ramdeo Chauhan v. Stare of Assam,66 a review petition was filed

(2001) 9 SCC 228


(2001) 5 SC 714
233

against the judgment Ramdeo Chauhan v. State ofAssam61 wherein the Supreme
Courfhad confirmed the death sentence awarded to the petitioner by the trial
r
court and the high court on proof of his having caused the death of four persons of
a family including ladies and a child of two and a half years of age. The petitioner
filed this review petition on the ground that he was juvenile (less than 16 years)
on the date of the commission of the offence. The Court admitted the review
petition and examined the whole records of the case. The majority of the Court
dismissed the review petition for following reasons:
1. The counsel of the accused could not have sacrificed the interest
of the accused and should have insisted on a finding from the court
regarding his being a child or a juvenile.
2. The grounds urged in the petition...do not make out a case for
review. In the guise of this petition, the petitioner has sought the
reappraisal of the whole evidence. Firstly to hold him not guilty
and even if he is found guilty to give him the benefit of the Act.
3. A perusal of the record shows that during the investigation,
enquiry and trial. Though represented by Senior Counsel, no plea
was ever raised regarding the petitioner being a juvenile and the
case being governed by the provisions of the Act. Only at the time
of arguments, plea regarding the accused being juvenile was raised.
However, such evidence appears to have been brought on record
for the purpose of avoiding the death sentence and not for the
applicability of the Act. Even in his application for grant of bail
under section 437 of the code, the petitioner had not raised the plea
of being under the age of 16 years entitling him to bail under the
first proviso to sub section (1) of section 437 of the Code. Neither
in his confessional statement recorded by the magistrate, not in the
memo of appeal filed in the high court, such plea was ever raised.
4. Section 5 of the Act provides that when any magistrate not

67
(2000) 7 SCC 455
234

empowered to exercise the power of a board or a Juvenile Court


under this Act is of the opinion that a person brought before him
under any of the provisions of the Act is a juvenile, he shall record
such opinion and forward the juvenile and the record of the
proceedings to the competent authority having jurisdiction over the
proceedings. Such a power can be exercised by the Magistrate
either on the complaint made to him or his own observations
regarding the age of the accused appearing before him. In the
absence of an order of a Magistrate, the competent authority under
the Act cannot hold an enquiry for the purpose of determining
whether the person brought before it is a juvenile or not.
5. In the instant case when the accused was produced before the
Magistrate powers under section 8 were not exercised upon
satisfaction of the Magistrate that the accused did not appear to be
a juvenile. No plea was taken by the accused of his being a child
juvenile either before the magistrate or before the court, with the
result that no enquiry as contemplated under the Act, was ever held
about his age. Even in the absence of an enquiry under the Act, the
Session Court, after the case is committed to it has the power to
make an enquiry and determine the age of the accused if it
considers it necessary in the interests of justice or a prayer is made
in that behalf.
6. In the case of the petitioner, the investigating officer, the
Magistrate before whom the accused was produced, the Magistrate
who recorded his confessional statement and the Sessions Court to
whom the accused was committed did not find that the accused
was a juvenile or a child. Such Magistrate and court were in a
better position to form an opinion regarding the age of the accused
as they had the opportunity to see and observe him. The plea of the
petitioner being a juvenile is not only an after thought but a
235

concoction of his imagination at a belated stage to thwart the


" course of justice by having resort to wrangles of procedures and
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technicalities of law.
7. The statement of the doctor is no more than an opinion, the court
has to base its conclusions upon all the facts and circumstances
disclosed on examining of the physical features of the person
whose age is in question, in conjunction with such oral testimony
as may be available. An X-ray ossification test may provide a surer
basis for determining the age of an individual than an opinion of a
medical expert but it can by no means be so infallible ad accurate a
test as to indicate the exact date of birth of the person concemed-
Too much of reliance cannot be placed upon textbooks, on medical
jurisprudence and toxicology while determining the age of an
accused. In this vast country with varied latitudes, heights,
environment, vegetation and nutrition, the height and weight
cannot be expected to be uniform.
8. After committing the crime of murder of four innocent persons,
the petitioner cannot be permitted to resort to adopt means and
tactics or to take measures which, if accepted or condoned, may
result in the murder of the judicial system itself.
In Jitendra Ram @ Jitu v. State of Jharkhand,68 the appellant was
convicted for commission of an offence punishable under Sections 302 and 201 of
the Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for
life. The sole contention raised by him in this SLP was that on the date of
commission of the offence he was a minor within the meaning of the provisions of
the Bihar Children Act. 1982. It was contended for him that once it is found that
the appellant was a Juvenile within the meaning of Section 2(h) of the Juvenile
Justice Act, 1986 or a child under the provisions of the Act, he was entitled to the
protection thereunder and in that view of the matter, he could have also been sent

68 (In the Supreme Court of India, Criminal Appeal No. 489 of 2006 [Arising out of S.L.P.
(Crl). No. 3494 of2005]. Decided On: 25.04.2006)
236

to the Juvenile Home in terms of Section 9, or Special Home in terms of Section


10, or Observation Home in terms of Section 11 of the Act and in any event could
r
not have been sentenced to imprisonment for life. Furthermore, it was the Juvenile
Court alone, which was competent to pass an order against him and in that view
of the matter the entire judgment of conviction and sentence passed against die
appellant would be vitiated in law. It was furthermore, submitted that the estimate
of age by the court is final and binding and in that view of the matter, the
appellant could not have been sentenced to undergo imprisonment for life.
The Court allowed the appeal remitted case to the Sessions Judge with a direction
to consider the matter as regard the age of the appellant as on the date of
commission of the offence and in the event, he is found to be a child and/or
Juvenile within the meaning of the Act and the Juvenile Justice Act to deal with
the accuse accordingly. If he is found not to have been a child as on the date of the
commission of the offence, the present conviction will stand. The Court observed
that "when the offence was committed, since the Juvenile Justice Act. 1986 had
not come into force, the provisions thereof would have no application; the Bihar
Children Act, 1982 was, however, applicable in this case. In terms of the
provisions of the said Act, a child means a boy who has not attained the age of 16
years. The Children Court was to be constituted under Section 5 of the Act, but it
is not in dispute that such court had not been constituted at the relevant time.
The provisions of Juvenile Justice (Care and Protection of Children) Act, 2000, it
appears, have been given effect to in the State of Jharkhand only in or about July
2005. Before the trial court, the appellant did not raise any plea that he was a
Juvenile. It is true that such a plea was raised while moving an application for bail
for the first time; but from a perusal of the order passed by the Patna High Court
dated 0605.1986, it would appear that the ground that the appellant was a child
itself was not the only one on which the order granting bail to the appellant was
passed.
The appellant was examined under Section 313 C r- P.C. where his age
was estimated to be 28 years. 'The said estimated age was recorded by the trial
237

court again on 09.04-1999 being 28 years. In the judgment of the trial court again
the aforementioned age was mentioned. In absence of any plea having been taken
by title appellant, it is not disputed, that the court at no stage had gone into the
question as regard the age of the appellant.
The provisions of a beneficial legislation should ordinarily be given effect
to. However, we may notice that the appellant is literate. Presumably he attended
some school. However, no certificate of his date of birth or any other proof as
regard his date of birth is available on records. No other material apart nom the
estimate of the court has been brought to our notice. In the absence of any
material on record, we cannot arrive at a definite conclusion that the appellant as
on the date of commission of the offence was a child within the meaning of the
said Act.”
In Balwant Kaur v. Union Territory of Chandigarh69 at the time of the
commission of the offence, the appellant, even on the basis of the observations
made by the Sessions Court, was about 15 V2 years of age and was a "child"
within the meaning of East Punjab Children Act, 1949. The Sessions Court had
invoked the proviso and held that appellant was of so depraved a character that
none of the other methods in which the case could legally be dealt with is suitable
in her case. An examination of the legality or propriety of the procedure adopted
in the case in the matter of the trial of a “child" under the East Punjab Children
Act, 1949 and as to the correctness of the view of the Sessions Court in appealing
to the proviso to Section 27 and in sentencing appellant to imprisonment for life
was not considered in this case, in view of Ending that appellant was entitled to
the benefit of doubt. In the result, appeal was allowed and the conviction and
sentence of the appellant was set aside and appellant was directed to be set at
liberty forthwith.
7ft
In Vinod Kumar v. State ofHP, the question before the Supreme Court
was whether accused was a "child" at the time of occurrence so as to be entitled to
benefit of Section 29 of the U.P. Children Act, 1952 The Court keeping in mind

69
(1988) I SCC 1
70
(1987) 2 SCC 623
238

that-
(I) this question was neither raised in trial court nor in High Court;
r
(II) accused played a prominent role in gruesome triple murder;
(III) affidavits and documents produced to prove age of the accused were of
doubtful authenticity;
(TV) accused and his counsel forged college attendance register and produced
false witness to substantiate his plea of alibi; and
(V) also made wild and unfounded allegations against High Court Judge while
making frivolous assertions that he was not heard by the High Court held that in
accused’s case it cannot be accepted that he was a child. Hence his conviction
under section 302 read with 149 Indian Penal Code was upheld.
In Rajinder Singh v. Stare ofPunjab?1 appellant who was convicted under
Section 302 and 324IPC and sentenced to R.I. for two years, submitted that as he
was below 16 years at the time the offence was committed, his trial by the
Sessions Court was illegal and he should have been tried under the East Punjab
Children Act, 1949. The High Court, however, dismissed the appeal, holding that
to the Sessions Judge the appellant appeared to be a boy of 16 to 18 years. Section
63 applies only where a court is satisfied that the appellant is a child within the
meaning of the Act. In the instant case the Sessions Judge was satisfied that the
appellant was not a child as contemplated by the provisions of East Punjab
Children
In case of State of Maharashtra v. Dnyaneshwar Suresh Borkar and Amit
@ Bapu Nanasaheb Bhandwalkar and Shri Dnyaneshwar Suresh Borkar v. State
of Maharashtra and Anr. and Amit @ Bapu Pianasaheb Bhandwalkar v. State of
Maharashtra,12 one 13 year old Rishikesh was kidnapped and done to death on
4/2/2001 and thereafter accused called his father and demanded Rs.5 lakhs in
return of his son. The deceased was kidnapped/abducted by three accused to cause
his murder on 4/2/2001. The second accused was juvenile, who had dug the pit in
advance while the accused No.l brought deceased Rishikesh and killed him by

71
(1979) 1 SCC 135
72
MANU/MH/0168/2006
239

pressing his neck and tightening it with the help of wire. Thereafter, all the
accused buried his dead body in the pit which was ready and left the place. The
r
juvenile accused prayed for quashing and setting aside the order of conviction and
sentence and to forward his case to the Board in accordance with the provisions of
the JJ (C &P) Act, 2000. Before the trial Court he had contended that on the day
he was arrested, he was less than 18 years of age and, therefore, a juvenile within
the meaning of Section 2(k) and that his trial was required to be separated. This
application was rejected. In support of the said application the applicant
purportedly submitted a photostat copy of the school leaving certificate. The trial
Court did not call upon the parties to lead evidence to prove the date of birth or
the school leaving certificate submitted by the applicant. The trial Court held that
the JJ(C&PC) Act, 2000 was brought into effect from 1/4/2001 and, therefore, it
was applicable only in the cases where the offence had taken place after the said
date. As in the instant case the offence had taken place on 4/2/2001 the provisions
of the amended Act were not applicable and the case of the applicant was
governed under the provisions of the old Act under which a male child below the
age of 16 years could be held to be a juvenile offender and the applicant being
more than 16 years of age on 4/2/2001 he was not entitled to be treated as a
juvenile. The applicant assailed this order before the High Court of Bombay
praying that the order passed by the trial Court is illegal and insisted that as on
4/2/2001 or 1/4/2001 the applicant was of the age of less than 18 years and.
therefore, a juvenile under the new Act. He was entitled to be held as a juvenile
and his trial was required to be separated.
The prosecution opposed this application by reiterating that the accused
was not a juvenile within the meaning of the old Act on the date of the offence
and in any case he had not taken up such a plea at the time of filing of the charge-
sheet when the Magistrate could have an opportunity to enquire into the same.
Even at the time of committal proceedings such a plea was not raised and the
accused remained silent though represented through an Advocate. Again after the
committal order was passed and the accused was identified he did not take a plea
240

that he was a juvenile- Same was the case when the charge was framed and when
his statement was recorded under Section 313 of Cr.P.C. In short it was contended
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that this plea of the accused that he is a juvenile cannot be now reopened in the
appeal filed against the order of conviction and sentence.
The court turned down this stand of the prosecution and held that this
stand is indefensible in view of the decision of the Constitution Bench in the case
of Prarap Singh. The 2000 Act would be applicable in a pending proceeding in
any court/authority initiated under the 1986 Act and pending when the 2000 Act
came into force and the person had not competed 18 years of age as on 1/4/2001.
If the applicants date of birth is accepted as 6/7/1983, it is clear that on 4/2/2001
as well as 1/4/2001 he was less than 18 years of age and thus a juvenile under the
2000 Act and entitled for the benefits of the said amended Act- However, the trial
Court did not call upon the parties to lead evidence in support of the date of birth
so that there was an opportunity for both the parties to place such evidence in
support of their respective contentions. The Prosecution then placed before the
Court photostat copies of the birth register of the concerned tillage for the month
of July-August 1983 and submitted that as per the said register no child was
recorded to have been bom on 6/7/1983 and, therefore, the school leaving
certificate submitted before the trial Court could not be sufficient evidence to hold
that the applicant was bom on 6/7/ 1983.
It was held that the issue of date of birth is required to be proved by
leading evidence and this was not done by the trial Court in the instant case. The
photocopies of the school leaving certificates submitted by the applicant as well
as the copies of die birth registers submitted by the prosecution cannot be
accepted as evidence unless the parties have an opportunity to lead evidence and
prove the date of birth. This can be more appropriately and efficaciously done by
the trial Court. The submissions made by the Prosecutor that the issue of date of
birth is foreclosed and that the accused was not bom on 6/7/1983 or he failed to
prove that he was bom on that date cannot be accepted. This issue has to be
decided on adducing documentary as well as oral evidence before the trial court.
241

The certificate issued is of a private school and original or photostat copy cannot
be accepted as reliable evidence unless the parties are allowed to lead evidence
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before the Court and the prosecution is given an opportunity to cross-examine the
witnesses of the defence and also to bring on record evidence to the contra.
The Court directed the trial Court to provide an opportunity to both the
parties to lead evidence regarding the date of birth of the accused and record its 1
finding on the same issue within a specific period. The order of sentence was put
on hold till the accused was given chance to prove that he was less than 18 years
of age as on 4/2/2001 or 1/4/2001. The Addl. Sessions Judge at Pune was directed
to decide the date of birth of accused by allowing the prosecution as well as the
defence to lead oral and documentary evidence.
In Mahmood Khan v. The State13, the petitioner along with three other co­
accused threw acid on the family members of the complainant resulting in
multiple acid bums on five persons including four ladies. After investigation, the
police tiled challan against the petitioner and others. The Rajasthan High Court,
while disposing of the bail application, directed the trial court to determine the
age of the petitioner considering the provisions of the Juvenile Justice Act. 1986.
As per the directions of this Court the trial court after taking evidence of both the
sides, held that the petitioner was more than 16 years of age at the time of the-
This order passed by the trial Court, was challenged by the petitioner before
Rajasthan High Court. The Rajasthan High Court ordered Additional Sessions
Judge, Neem Ka Thana to hold inquiry about the age of the petitioner, by getting
him medically examined. As per these directions, the trial Court again sent the
petitioner for medical examination. After considering the medical report as well as
other documents and evidence on record, the trial court again held that the
petitioner to be more than 16 years of age at the time of the incident- The same
order was challenged afresh by the petitioner in the Rajasthan High Court.
The Rajasthan High Court dismissed the petition because there were two
sets of school certificates produced on record. In one set, the date of birth was

73
2002~(108)-CRLJ -2123
242

mentioned as 5-6-1982, whereas, in the other set, the date of birth has been
mentioned as 5-6-1984. That apart, in one ration card, the age of the petitioner
r
was mentioned as 11 years, whereas, in the other ration card, the age was
mentioned as 20 years. In the voters' list of 1999, the age of the petitioner was
mentioned as 21 years. Further, the father of the petitioner did not dispute the
date of birth as 5-6-1982 initially recorded in the record of the school where his
son, the petitioner, was admitted in Class V in July 1991. His clarification was
that at the time of filling up of the forms for Secondary School Examination he
came to know about this date i.e. 5-6-1982 which was duly corrected to 5-6-1984.
This explanation was not accepted as boy of just 7 years could not have been
admitted to Class V in the year 1991. The record of the school in which the date
of birth was entered as 5-6-1982 was proved by the authorities of the school
concerned. The date of birth from 5-6-1982 to 5-6-1984 was corrected by the
school authorities only in 1997 as per order dated 3-9-1997 passed by the District
Education Officer, Sikar.
In Sushil Kumar v. Rakesh Kumar™ the Supreme Court as regards
determination of age of a candidate in terms of Section 36(2) of the
Representation of the People Act, 1951 observed:
"The age of a person in an election petition has to be determined not only on the
basis of the materials placed on record but also upon taking into consideration the
circumstances attending thereto.”
In Updesh Kumar and Ors. v. Prithvi Singh and Ors, the Supreme Court
relied on the matriculation certificate holding that the correction of the date of the
birth in the certificate was an official act and the must be presumed to have been
done in accordance with law.
In Ramdeo Chauhan alias Raj Nath v. State of Assam™ as regard
applicability of the provision of Section 35 of the Indian Evidence Act, 1872 vis-
a-vis a school register, it was stated:

74
MANU/SC/0826/2003
75
MANU/SC/0040/200I
76
MANU/SC/0297/2001
243

"It is not disputed that the register of admission of students relied upon by the
defence is not maintained under any statutory requirement. The author of the
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register has also not been examined. The register is not paged at all. Column 12 of
the register deals with "age at the time of admission". Entries 1 to 45 mention the
age of the students in terms of years, months and days. In Entry 32 the age of the
student concerned has been recorded. In column 12 again in the entries with effect
from 9-1-1992, the age of the students are mentioned and not their dates of birth.
The manner in which the register has been maintained does not inspire confidence
of the Court to put any reliance on it. The defence has also not referred to any
provision of law for accepting its authenticity in terms of Section 35 of the
Evidence Act. The entries made in such a register cannot be taken as a proof of
age of the accused for any purpose?
In Umesh Chandra v. State of Rajasthan,77 a register maintained by a
public school of repute was produced. The Court relied thereupon, opining that
Section 35 cannot be read with Sections 73 and 74 of the Evidence Act. If a public
school maintains a register in ordinary course of business the same would be
admissible in evidence.
In Bhoop Ram v. State of U.P.,n appellant was treated to be a child within
die meaning of Section 2(4) of the Act; upon taking into consideration three
factors:
(i) that the appellant had produced a school certificate and correctness
whereof was not questioned;
(ii) the trial Judge thought it fit to award the lesser sentence of
imprisonment for life instead of capital punishment when he pronounced
the judgment on 19.09.1977 on the ground that the appellant was 17 years
of age which gave credence to the appellant's case that he was less than 16
years of age on 03.10.1975 when the offences were committed; and
(iii) although he was medically examined, for determination of age, the
doctor based his opinion only on an estimate and possibility of an error of

77
MANU/S.C/0125/1982
78
MANU/SC/0070/1989
244

creeping into the said opinion could not be d out. The Court, therefore,
took into consideration on more than one factors in accepting the plea of
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the appellant therein that he was minor on the date of commission of the
offence.
In case of Reminder Singh Garkhi v. State of U.P., issue was whether a
school leaving certificate purported to have been issued by the authorities of a
primary school would attract the provision of Section 35 of the Indian Evidence
Act, 1872. Before the trial judge in his statement under Section 313 of the Code
of Criminal Procedure a statement was made by the appellant that he was aged 16
years whereas the court assessed his age to be 18 years. He indisputably did not
claim any benefit of the provisions of the Uttar Pradesh Children Act, 1951,
which was applicable in the case. Before the Supreme Court for the first time, a
contention was raised that as the appellant was a minor on the date of commission
of the offence, he was entitled to the benefit thereof in terms of the provision of
Section 2(4) of the Act. A Division Bench of the Supreme Court referred the
question in regard to his age to the Sessions Judge, Bulandshahr before whom the
parties were directed to appear on 04.01.1999 to lead both oral and documentary
evidences. The Sessions Judge was asked to return his findings to this Court. The
Sessions Judge, Bulandshahr pursuant to or in furtherance of the said direction
allowed the parties to adduce evidence. Relying upon the school leaving
certificate wherein the date of birth of the appellant was recorded to be
01.06.1963, he was held to be a minor on the date of occurrence i.e. 15.5.1979.
The appellant, submitted that in view of the findings arrived at by the Sessions
Judge, Bulandshahr, he was entitled to the benefit of the provisions of the Act and
in that view of the matter no sentence of life imprisonment could have been
imposed upon him. Sessions Judge, Bulandshahr in his report dated 17.2.1999
did not rely upon any evidence other than the school leaving certificate. In the
counter affidavit filed on behalf of the State, it contended that
1) the appellant was a history sheeter; as many as 34 cases for

79
Supreme Court of India, Criminal Appeal No. 362 of 1999, Decided On: 12.05.2006
245

commission of heinous crimes were filed against him. It is, therefore,


- - unlikely that the appellant was not aware of his legal right.
r
2) The school leaving certificate was not an original one. It was
merely a second copy.
The Supreme went on to examine whether the School Leaving Certificate
was reliable. A perusal of the said certificate proved that the appellant was
admitted on 1.8.1967 and his name was struck off from the roll of the
institution on 6.5.1972. The said school leaving certificate was not issued
in ordinary course of business of the school. There was nothing on record
to show that the said date of birth was recorded in a register maintained by
the school in terms of the requirements of law as contained in Section 35
of the Indian Evidence Act. No statement was made by the said Head
Master that either of the parents of the appellant who accompanied him to
the school at the time of his admission therein made any statement or
submitted any proof in regard thereto. The entries made in the school
leaving certificate, evidently had been prepared for the purpose of the
case. All the necessary columns were filled up including the character of
the appellant. It was not the case of the said Head Master that before he
had made entries in the register, age was verified. If any register in
regular course of business was maintained in the school; there was no
reason as to why the same had not been produced.
The court held that
“There cannot, however, be any doubt whatsoever that the certificate was issued
for the purpose of the case. The father of the appellant was also an accused."
Determination of the date of birth of a person before a court of law, whether in a
civil proceeding or a criminal proceeding, would depend upon the facts and
circumstances of each case. Such a date of birth has to be determined on the basis
of the materials on records. It will be a matter of appreciation of evidence
adduced by the parties. Different standards having regard to the provision of
Section 35 of the Evidence Act cannot be applied in a civil case or a criminal
246

case. Section 35 of the Evidence Act would be attracted both in civil and criminal
proceedings. The Evidence Act does not make any distinction between a civil
r
proceeding and a criminal proceeding. Unless specifically provided for, in terms
of Section 35 of the Evidence Act, the register maintained in ordinary course of
business by a public servant in the discharge of his official duty, or by any other
person in performance of a duty specially enjoined by the law of the country in
which, inter alia such register is kept would be a relevant fact. Section 35, thus,
requires the following conditions to be fulfilled before a document is held to be
admissible thereunder:
(i) it should be in the nature of the entry in any public or official registers;
(ii) it must state a fact in issue or relevant fact;
(iii) entry must be made either by a public servant in the discharge of his official
duty, or by any person in performance of a duty specially enjoined by the.law of
the country; and
(iv) all persons concerned indisputably must have an access thereto.
The Court has not been shown as to whether any register was required to
be maintained under any statute or whether any register was maintained in the
school at all. The original register was not produced. No person was examined to
prove as to who had made entries in the register. The school leaving certificate
which was not issued by a person, who was in the school at the time when the
appellant was admitted therein, cannot be relied upon.
In this case the Sessions Judge had discarded all other evidences adduced
on behalf of the appellant in support of his contention that he was minor on the
date of commission of the offence. Entry of a date of birth in the school records is
merely a piece of evidence. Having regard to the experience of the court, it was
opined that the same should be authentic in nature. Until the age of a person is
required to be determined in a manner laid down under a statute, different
standard of proof should not be adopted. It is no doubt true that the court must
strike a balance. In case of a dispute, the court may appreciate the evidence
having regard to the facts and circumstance of the case. It would be a duty of the
247

court of law to accord the benefit to a Juvenile, provided he is one. To give the
same "benefit to a person who in fact is not a Juvenile may cause injustice to the
r

victim. In this case, the appellant had never been serious in projecting his plea that
he on the date of commission of offence was a minor. He made such statement for
the first time while he was examined under Section 313 of the Code of Criminal
Procedure.
The family background of the appellant is also a relevant fact. His father
was a ‘Pradhnan’ of the village. He was found to be in possession of an
unlicensed Firearm. He was all along represented by a lawyer. The court
estimated his age to be 18 years. He was tried jointly with the other accused. He
was treated alike with the other accused. On merit of the matter also the appellant
stands on the same footing as other accused. The prosecution has proved its case.
In fact no such plea could be raised as the special leave petition of the persons
similarly situated was dismissed when the court issued notice having regard to the
contention raised by him for the first time that he was minor on the date of
occurrence.
fin
In Hema Ram and Ors. v. State of Raj. and Anr, issue was whether
school record is admissible under section 35 of the Evidence Act for age
determination of a juvenile?
The court relying on the case of Birad Mai Singhvi v. Anand Purohit held
that school records are admissible as evidence provided genuineness of the
document is proved by the officials. Further the documents need to be maintained
in due course of business. The court made following observations:
“If the entry in the scholars register regarding date of birth is made on the
basis of information given by parents, the entry would have evidentiary value but
if it is given by a stranger or by someone else who had no special means of
knowledge of the date of birth. Such an entry will have no evidentiary value.
Merely because the documents such as extract of School Register, mark list or
certificate of Education Board etc. are proved, it does not mean that the contents

80
RLW 2006(1) Raj 476
of documents are also proved. Mere proof of such documents would not
tantamount to proof of all the contents or the correctness of date of birth stated in
the documents.”
"Academic documents for the purpose of admissibility under section 35 of
the Evidence Act, need to be officially testified and maintained in due course of
the business. The mere fact that they have been certified by an authority does not
prove the content of the certificate, but it has to be proved that its contents are
based on the information given by the parents.”
In Budhan Thakur @ Mithilesh Thakur v. The State ofBihar*1, application
was filed for quashing the order of the Additional Sessions Judge (Fast Track
Court), Banka, whereby the prayer made by the petitioner to transfer the case to
the Juvenile Justice Board for ascertaining his age, was rejected. The High Court
held that it is a fit case in which the claim of the petitioner deserves to be
examined by the Juvenile Justice Board in accordance with law. For that purpose,
petitioner should appear before the concerned Juvenile Justice Board within three
weeks from today. The Juvenile Justice Board shall decide the claim in
accordance with law within six weeks from the date of appearance of the
petitioner and forward the order to the Judge of Sessions Trial No. 436 of 1992
who shall pass order in accordance with law.
Prior to the Act of 2000 coming into force, the Juvenile Justice Act of
1986 was effective. The 1986 Act provided that juvenile would mean a boy who
had not attained the age ofl6 years or the girl who had not attained the age of 18
years. The Act of 2000 has increased the age of juvenile from 16 to 18 years.
Since the offence took place after the Act of 2000'come into force, the provisions
of the Act of 2000 would be applicable and the appellant have to be tried in
accordance with the provisions of the Act of 2000 only.
In Satbir Singh and Ors. v. State of Haryana*2 the court clarified that if
accused was not juvenile in terms of the old Act of 1986, he cannot be given the

MANU/BH/0012/2006 High Court of Patna, Cr. Misc. No. 13896 of 2005, Decided On:
09.03 .2006
82
JT 2005(8) SC 394
■ 249

benefit of JJ (C&PC) Act 2000 to save from hardships of imprisonment. In this


case-it was contended that accused was 17 years of age as on 13.6.1989 and
[T

therefore he should be entitled to the benefit of the Juvenile Justice Act, 1986. The
Court observed that Section 2(h) defences “Juvenile” means a boy who has not
. attained the age of 16 years or a girl who has not attained the age of 18 years. As
per his own statement accused was 17 years of age as on 13.6.1989, therefore, he
is not entitled to the benefit of Juvenile Justice Act, 1986.
In S.D. Pawan v. State by Hebbagodi Police IILR2006KAR1570,83 issue
was whether an accused who was not a juvenile under the 1986 Juvenile Justice
Act can be considered as a juvenile in conflict with law under the new Juvenile
Justice (Care and Protection of Children) Act, 2000. By the time charge sheet was
filed in this case, the new Act had come into force. Therefore, the question arose
whether prosecution is to be conducted before the Juvenile Justice Board or the
Sessions Court.
It was held that the idea behind the new Act is to make Justice System
meant for juveniles more appreciative of the developmental needs in comparison
to criminal justice system as applicable to adults. Therefore even 'in respect of the
offence committed prior to 05-04-2001 that is before the commencement of Act
No. 56 of 2000, if the accused had not completed eighteenth year of age on the
date of the offence and by the time the charge sheet is filed, the new Act, i.e., Act
No. 56 of 2000 has come into force, such person has to be considered as a
juvenile in conflict with law for the purpose of prosecution and trial under the
provisions of Act No. 56 of 2000. The object behind both the Acts i.e., 1986 Act
and new Act, i.e. Act No. 56 of 2000 is to consolidate and amend the law relating
to children and Juveniles by adopting a child friendly approach in the adjudication
and disposition of matters in the best interest of the Children. Since the Justice
system as available to adults was considered not suitable for being applied to
Juvenile/ Children. First, Children Act, 1960 and later Juvenile Justice Act, 1986
were enacted. The intention behind the provisions of these Acts takes into

83
ILR 2006 KAR 1570
250

consideration the need care and protection to the children and Juveniles. The
treatment of the Juveniles in these two Acts is to take them from the rigor of a
r
regular trial and to try them by special forums called Juvenile Courts, now
Juvenile Justice Board, which provide not only the care, protection, treatment,
development and rehabilitation of the children and Juveniles, but also contain
provisions in respect adjudication of the guilt or otherwise of such Juveniles.
A review of the working of the Juvenile Justice Act of 1986 found the need
for including the including offenders between the age group of 16 and 18 years
also within the definition of juvenile. Therefore, as per the definition of juvenile
or child in the new Act, i.e., Act No.56 of 2000, a person who has not completed
eighteenth year of age is a juvenile. The idea behind the new Act is to make
justice system meant for juveniles more appreciative of the developmental needs
in comparison to criminal justice system as applicable to adults. Therefore even in
respect of the offence committed prior to 05-04-2001 that is before the
commencement of Act No. 56 of 2000, if the accused had not completed
eighteenth year of age on the date of the offence and by the time the charge sheet
is filed, the new Act, i.e., Act No. 56 of2000 has come into force, such person has
to be considered as a juvenile in conflict with law for the purpose of prosecution
and Trial under the provisions of Act No. 56 of 2000, i.e., Juvenile Justice (Care
and Protection of Children) Act, 2000.
In the present case, the revision petitioner had not completed the
eighteenth year of age on the date of the offence. He was identified as one of the
culprits after the advent of Act No. 56 of 2000. Charge-sheet was filed after the
advent of Act No. 56 of 2000. Therefore, he being a juvenile in conflict with law
as per Act No. 56 of 2000, his prosecution can be only before the Juvenile Justice
Board.
In most of the cases discussed above, the beneficial provisions of the
Acts were not applied at earlier stages because no one—the children, then-
lawyer, the State counsel, or the Magistrates raised the plea of child status. The
Supreme Court itself has followed contrary approaches without reference to
251

other cases decided by it. In view of widespread unawareness amongst the


persons, it is only reasonable that the children should not be denied the
r
protection of the progressive and beneficial legislation simply for failing to
raise the plea of child status at the appropriate time. The majority of children
falling within the scope of the Juvenile Justice System are poor, illiterate, and
unaware of their rights or obligations of others towards them. They cannot be
expected to know that such a law exists for their benefit and that they should
ask for its application at the earliest. To ensure the protection of the beneficial
legislation to children some flexibility should be adopted in cases where the
plea of child status is not raised.
5.2.2 Jurisdiction of the Board/Court.
In Raghbir's Case84 the question for consideration before Supreme
Court in the appeal by special leave was whether a person under 16 years of
age and accused of offence under section 302 can get benefit of Haryana
Children Act. The undisputed facts are that the appellant along with three
others was convicted of the offence of murder and sentenced to imprisonment
for life by the Sessions Judge. The appeal was dismissed by the High Court.
The appellant then filed an application for special leave to appeal under Article
136 of the Constitution. Leave was granted confined to the question of the
applicability of the Act to his case. It is also not disputed that the appellant was
less than 16 years at the time he first appeared before the trial court. He was
thus a 'child' within the meaning of that term under Cl. (d) of Section 2 of the
Act.
The Supreme Court noticed its earlier decision in another case85 and
held that the trial of a child under the provisions of the Act was not barred. In
that case, however, it appears, S. 27 of the Code was not brought to the notice
of the Court. In that view of the matter, the Bench consisting of two members
including one of us (Baharul Islam, J.) before whom this appeal came up for
hearing referred it to a larger bench, in order to avoid possible conflict of

84
Raghbirv. State ofHaryana. 1981 Cri. L.J. 1497.
85
Rohtas v. State ofHaryana AIR 1979 SC 1938 : 1979 Cri LJ 1365.
252

decisions. This is how this appeal came up for hearing before this Bench
consisting of three members.
After examining provisions of Section 27 Cr.P.C. and provisions of
Haryana Children Act, 1974 allowed the appeal setting aside conviction and
sentence upon the appellant and quashed the entire trial and directed that
Raghbir shall be dealt with in accordance with the provisions of Haryana
Children Act, 1974.
In another case86 the appellant Rohtas was being prosecuted under
section 302 of the Indian Penal Code for having caused the death of one
Subhash on 23rd December, 1974. The trial proceeded before the Sessions
Judge and after the evidence was concluded the case was adjourned to the 5th
May, 1978 for recording the statement of the appellant. At this stage it appears
to have been pointed out to the Sessions Judge that he had no jurisdiction to
try the appellant as the appellant happened to fall within the provisions of the
Haryana Children Act, 1974, for short, to be referred to as the Haryana Act.
Thereafter the Sessions judge remitted the matter to the Committing
Magistrate directing him to hold an enquiry as to whether or not the appellant
Rohtas was a 'child' within the meaning of the provisions of the Haryana Act
and after arriving at a finding that the appellant was a child, the Magistrate
proceeded to try the case in accordance with the provisions of the Haryana
Act. The brother of the deceased filed a revision before the High Court for
quashing the proceedings against the appellant on the ground that the Sessions
Judge and the Committing Magistrate were wrong in holding that the case of
the appellant fell within the purview of Section 4 of the Haryana Act. The
contention raised by the appellant (sic) was based on the fact that although the
Criminal Procedure Code of 1973, hereinafter to be referred to as the Code of
1973, contained provisions some of which were directly in conflict with the
Haryana Act and other Central Acts, therefore, the Code of 1973 would prevail
and the State Acts would stand overruled by virtue of the provisions of Article

86
Rothas v. State ofHaryana, AIR 1979 SC 1938
253

254 of the Constitution of India.


It was'held by Supreme Court as under:
r
“6. In our opinion the provisions of Section 5 of the Code in the
present case completely clinch the entire issue. Far from overruling
or colliding with the provisions of the Haryana Act, the Code of
1973 appears to have kept alive and fully endorsed the application
of the Haryana Act or for that matter the provisions of any other
Act passed by the State Legislature and which falls within the
ambit of Section 5 of the Code of 1973 which may be extracted
thus:
“Nothing contained in this Code shall, in the absence of a specific
provision to the contrary, affect any special or local law for the time
being in force, or any special jurisdiction or power conferred, or any
special form of procedure prescribed, by any other law for the time
being in force.”
7. It will thus be seen that Section 5 carves out a clear exception to
the provisions of the trial of an offence under any special or local law
for the time being in force or any special jurisdiction or power
conferred or any special form of procedure prescribed by any other
law for the time being in force. It is not disputed that the Haryana Act
was in force when the Code of 1973 was passed and, therefore, the
Haryana Act far from being inconsistent with Section 5 of the Code
of 1973 appears to be folly protected by the provisions of Section of
the Code of 1973 as indicated above.
8. In these circumstances, we are clearly of the opinion that the High
Court was in error in holding that the Code of 1973 overruled the
Haryana Act and that the appellant should have been tried under the
Code of 1973. We are satisfied that the view taken by the Sessions
Judge on this point was correct and the case of the appellant should
have been referred to the Magistrate concerned for trial in accordance
254

with the provisions of the Haryana Act.


9: We, therefore, allow this appeal, set aside the judgment of the High
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Court and restore that of the Sessions Judge as a result of which the
appellant will now be tried by the Magistrate empowered under the
Haryana Act and in accordance with the provisions of that Act The
case is an old one. The Magistrate concerned should try to dispose of
the same as expeditiously as possible.”
Thus, Supreme Court decided that the accused was entitled to
benefit of Haryana Children Act, 1974.
In State by Basavapatna Police Station v. HarshaS1 a reference was made
by the Additional Sessions Judge, Fast Track Court-I, Davangere seeking decision
of the Karnataka High Court on a question of law as well as interpretation of
certain provisions of the Juvenile Justice (Care and Protection of Children) Act,
2000 vis-a-vis Section 27 of the Cr.P.C. The respondent/Harshad, a juvenile was
charge sheeted along with others for offences under Sections 143, 147 and 302
read with Section 149 of the IPC. Thereafter, the Chief Judicial Magistrate,
Davangere took cognizance of the offences and registered a case against the
respondent/Juvenile and forwarded the same to the Juvenile Justice Board (JJB) at
Shimoga, constituted as per notification issued by the State Government under the
provisions of the Act of 2000. The JJB sitting at Shimoga, thinking that the
offences were triable by a Court of Sessions committed the case to the Sessions
Court, Davangere as per its order dated 19.3.2004 and thereafter, the same was
renumbered on the file of the District and Sessions Court, Davangere. After
establishment of Fast Track Court, the same was transferred to the Fast Track
Court wherein it was pending. The Presiding Officer of the Fast Track Court,
noticing that as the JJB had already been constituted and in fact as it had taken up
the case, but had committed the respondent to take his trial only in view of one of
the offences exclusively triable by a Court of Sessions, directed the State as well
as the respondent and his Counsel to submit their views in this regard with an

87
2005 CriLJ 2357
intention to find out the exact legal position. After going through various
pronouncements, he opined that it is the JJB which is empowered to try the case
of the juvenile, but, finding it difficult to over-come the pronouncement of the
Karnataka High Court in the case of Krishna88, he referred the following
questions for consideration to this Court:
(1) Whether the Sessions Court at Davangere will have jurisdiction to
deal with a juvenile in a case committed to it under Section 209 of the
Cr.P.C., by the JJB, Shimoga? OR Whether the Sessions Court can try
the case committed to it, by a Magistrate or Board other than
jurisdictional Magistrate?
(2) Whether Section 27 of the Cr.P.C. read with pronouncement of the
Division Bench of this Court in the case of Krishna has overriding effect
over Section 6 of the Juvenile Justice (Care and Protection of Children)
Act, 2000 or vice-versa? OR Which Court/Board has to deal with a
juvenile in respect of offences punishable with death or imprisonment
for life?
As important questions of law were to be decided, the High Court issued
notice to the state, State Public Prosecutor and guardian of the juvenile. It was
noted that the State of Karnataka has issued notification bearing No. MME 94
MBB 2003, dated 25.7.2003 to constitute five JJBs. As the offence in question
was committed within the jurisdiction of Davangere, the JJB at Shimoga was die
authority concerned.
Noting the provisions of the powers of JJB under Section 6 of the Act of
2000, the Court held that it is only the Board constituted under the Juvenile
Justice (Care and Protection of Children) Act, 2000, which alone is empowered to
deal with the offences said to have been committed by the juvenile. There cannot
be two opinions that in the light of the provisions and observations of the Apex
Court, 'a juvenile in conflict with law1 has to be tried by the concerned JJB
constituted under the Juvenile Justice (Care and Protection of Children) Act, 2000

88
ILR 2000 KAR 2542
256

and not by the regular court. However, the doubt regarding jurisdiction has arisen
in view of the following observation of the Division Bench of this Court in the
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case of Krishna, which held that “in view of Section 27 of the Cr.P.C., which
stipulates that in the case of an offence punishable with death or imprisonment for
life, it is the Court of Sessions which will exercise jurisdiction even if the accused
is a minor.”
However, considering that there is legislative mandate as well as mandate
of the Supreme Court, that when a juvenile has been charged with an offence or
offences, it is the JJB which has the power of trying the said juvenile in conflict
with law in accordance with the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000, the Court answered the questions observing
that in view of the fact that a JJB has already been constituted by Notification No.
MME 94 MBB 2003, dated 25.7.2003 to have jurisdiction over Davangere
District also, it is that Board which has the exclusive power of dealing with the
trial of 'juveniles in conflict with law' and to that extent, the jurisdiction of any
Court including that of the Sessions Court or Fast Track Court is barred.
Regarding second question the court held that section 27 of the Cr.P.C. has
no inconsistency with Section 6 of the Juyenile Justice (Care and Protection of
Children) Act, 2000. However, the words “notwithstanding anything contained in
any other law for the time being in force”, used in Section 6(1) of the Juvenile
Justice (Care and Protection of Children) Act, 2000 has overridden the provisions
of Section 26(a) of the Cr.P.C. In view of specific provision in Section 6(1) of the
Juvenile Justice (Care and Protection of Children) Act and pronouncement of the
Supreme Court in Sheela Barse's case89 and Raghbir's case90, the decision of
Karnataka High Court in Krishna's case91is no more good law. The Court directed
that a copy of this order be communicated to all the Courts for their guidance.
The State Public Prosecutor had submitted to the court regarding necessity
of forming JJB for each district. As per the report submitted to him by the State

89
Sheela Barse andAnr. v. Union ofIndia and Ors. AIR 1986 SC 1773
90
Raghbir v. State ofHaryana, AIR 1981 SC 2037
91
ILR 2000 KAR 2542
257

Government, only five JJBs have been constituted to deal with the entire State
except for certain districts. For example, Shimoga JJB has jurisdiction over seven
r

districts namely, Shimoga, Karwar, Chikmagalur, Chitradurga, Udupi, Mangalore


and Davangere. The offences committed by juveniles in all these districts have to
be tried in Shimoga. That requires transportation of'juveniles in conflict with law'
from far off places like Mangalore, Udupi, Karwar etc. The very purpose of
enacting Juvenile Justice (Care and Protection of Children) Act is lost in view of
the practical difficulties which are faced in keeping, maintaining and taking these
juveniles to the place of trial.
The Court keeping in view the practical difficulty with which the Board as
well as the juveniles have to face, directed the State Government to consider the
necessity of establishing one JJB for each district as expeditiously as possible.
The Sessions judge of the Fast Track Court, Shimoga was directed to take
immediate steps in this regard to forward the case to the JJB, Shimoga
immediately on receipt of a copy of this order.
In case of Pankaj v. State of U.P92 application was filed challenging the
order of the Sessions Judge, Baghpat who declined to entertain an application
claiming to be a juvenile and for protection under the JJ(C& PC) Act, 2000. It was
stated in the application that they were students at the time of occurrence of
crime. The date Of birth certificate was produced to show that applicants were
juvenile. The application was not entertained on the ground that since the Juvenile
Justice Board (JJB) has been constituted at Meerut, it is the jurisdiction of the
Board to decide and declare an accused as juvenile. This application challenged
the said order. It was argued that under Section 7 of the JJ(C & PC) Act, 2000 it
was the duty of the court to ascertain and form an opinion whether the applicant
was a juvenile in his opinion or not. The Judge could not have thrown away the
applications and refused to entertain it only because a JJB has now been
constituted at Meerut.
The application was accepted holding that the Sessions Judge, Baghpat

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was bound to make preliminary inquiry and come to a conclusion, instead of


relegating the applicants to approach the Board. It was observed that the JJB
r
constituted under the Act do not meet each and every day as a regular sitting of
the court and in the circumstance, the Sessions Judge, Baghpat should have at
least examined the matter and if he was of an opinion that the applicants were
juvenile then an appropriate order should have been passed, which the court had
failed to do so. The applicants were permitted to move another application and the
Sessions Judge, Baghpat was directed to make a preliminary inquiry.
In another case93a juvenile was chargesheeted along with adult accused
persons for the commission of the offence punishable under Section 376(1), 323
read with Section 34 of I.P.C. The Magistrate took cognizance and committed the
case to the Additional Sessions Judge. After thorough perusal of the materials
available and after hearing the parties, the Additional Sessions Judge framed
charge under section 376(1) of the I.P.C. against five accused persons including
juvenile Gopesh Debnath, When the provisions of the JJ (C & PC) Act, 2000 were
brought to the notice of the Additional Sessions Judge, he transmitted the case
record to the Chief Judicial Magistrate, West Tripura Agartala, a Juvenile Court
for disposal, who returned the case record making an observation that “he was
unable to try the case as the Government after the repeal of the Juvenile Justice
Act, 1986 had not constituted the Juvenile Justice Board (JJB) as required under
Section 4 of the JJ(C & PC) Act, 2000. Besides, the Chief Judicial Magistrate
observed that “the State Government had not provided him the infrastructure for
the smooth running of the Juvenile Court”. On receipt back of the case record, the
Additional Sessions judge, North Tripura, Dharmanagar referred the case under
section 95 of the Code of Criminal Procedure to the Gauhati High Court for
decision.
The High Court after analyzing various provisions of the JJ (C&PC) Act,
2000, held that “total prohibition is there forbidding institution of any criminal
proceedings against a juvenile under Chapter VIII of the Code of Criminal

93
Additional Sessions Judge v. State of Tripura (2003)1 GLR 614
Procedure (Cr.P.C.). Chapter VIII of the Cr.P.C. consists of sections 106 to 124
. under the caption “Security for Keeping the Peace And For Good Behaviour”. In
the present case, the juvenile is charged under Section 376(1) IPC and admittedly
not falling within Chapter VIII of the Cr. PC and as such the prohibition
prescribed under section 17 of the Juvenile Justice Act is not applicable to the
present case. However, in view of section 18 of the Juvenile Justice Act, a
juvenile cannot be tried together for an offence with other adult person(s) who is
not a juvenile. The present case is squarely covered by section 18. In a single trial,
the juvenile is charged under section 376(1) IPC and conjointly with other non­
juveniles for commission of the offence under section 323/324 IPC.”
The Criminal Court cannot wash its hands referring to the provisions of
Juvenile Justice Act. Since total prohibition is not there, pending constitution of
the JJB, the respective criminal court has the jurisdiction to try a juvenile offender
in accordance with the general provision of law as embodied in the Cr.P.C., but
the investigation, inquiry or trial should not be held in open court, but in camera
and the assistance of Probation Officer shall be ensured during the proceedings,
but in no case, a juvenile shall be tried along with non-juvenile accused person.
On, conviction of a juvenile, of course on recording evidence, the convict juvenile
shall not be sent to imprisonment where the inmates are non-juveniles. If
protected home is available or separate reforms house within four walls restricting
their free movement is available, they should be kept there affording opportunities
for imparting adequate and suitable educational facilities including
professional/vocational education. If no such structure is available then the
juvenile convicts be allowed to be kept by their guardian but under the strict
supervision of Probation Officer till he/they attains/attain the age of 18 years.
In Miss Sangita Ramachandra Jain v. S.A. Dwivedi,94 petitioner and her
father were proprietors of a power loom business. Respondent filed criminal
complaint against minor petitioners before the Industrial Court at Thane, which
directed both father and daughter minor) to deposit in the Court within three

94
1996 Cr.LJ.24.
260

weeks 50% of the wages of the concerned employees. Since they failed to deposit
the said sum, they were tried for commission of offence punishable under section
48(1) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair
labour Practices Act, 1971 by the Labour Court, Thane. The petitioner made
. application to the Labour Court to dismiss the complaint against her as she was
less than 18 years of age on date on which the complaint was filed and taken
cognizance of. The labour court took the view that in as much as the petitioner
was admittedly more than 16 years of age, she could be tried before the regular
criminal court and also the labour court exercising criminal jurisdiction. In this
view, petitioner's application was dismissed. Thereafter writ petition was filed
before the Bombay High Court under Article 226 of the Constitution, raising
question of law as to whether a person who was a minor on the date when an
alleged offence under section 48(1) of the Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices Act was committed can be tried
by the Labour Court under the provisions of the Act.
Allowing the writ petition, Bombay High Court held that:
1. Labour Court failed to take notice of the overriding provisions of
the Juvenile Justice Act, which take away the jurisdiction of the
regular criminal courts to try juveniles and invest the said power only
in juvenile courts.
2. Juvenile Justice Act overrides the provisions of section 27 of the
Criminal Procedure Code and in so far as the trial of delinquent
juvenile is concerned, a special forum has been created therefore with
exclusive jurisdiction. The jurisdiction of all courts other than the
courts constituted under section 7 of the Juvenile Justice Act, 1986
has been barred in so far as the matters relating to juveniles are
concerned. In view of the definition of juvenile contained in clause
(h) of section 2, it is obvious that the petitioner, who was a girl who
had not attained the age of 18 years as on the material date, was a
juvenile and a delinquent juvenile within the meaning of clause (e) of
261

section 2 and, therefore, the exclusive power of trying her for the
_» alleged offence vested in the forum specially created under section 7
of the Juvenile Justice Act, 1986.
3. Even if no Board or Juvenile Court was constituted in the
concerned area, the courts enumerated in clause (a), (b) and (c) of
sub-section 2 of section 7 of Juvenile Justice Act had to exercise the
powers conferred on the Board or Juvenile Court.
4. As per section 24 of Juvenile Justice Act it is obligatory upon the
Court taking cognizance of the offence to try the juveniles separately,
even if otherwise under any other law, the juvenile and another
offender were liable to be tried together.
5. In view of these overriding provisions of the Juvenile Justice Act,
1986, the petitioner's contention ought to have been upheld by the
Labour Court. The Labour Court's order is therefore, erroneous and
contrary to law and hence liable to be interfered with. Petitioner is
not liable to be tried for the offence alleged against her by any forum
other than the forum contemplated under section 7 of the Juvenile
Justice Act.
In case of Abdul Mannan and others v. State of West Bengal5 eleven
appellants were charged for various offences including the offence of murder
punishable under section 302 of the Indian Penal Code. On the date of the
commission of the offences they were under the age of 17 and 18 years. Since
they were children under the provisions of the West Bengal Children Act 1959,
they were required to be tried by the Juvenile Court but no such court was
constituted in the State of West Bengal. While the proceedings against them were
pending, the Juvenile Justice Act, 1986 came into force, repealing the West
Bengal Children Act, 1959. Under both - repealed Act of 1959 and the Juvenile
Justice Act, 1986, trial of juvenile offenders had to be conducted by the juvenile
court, and, when no such court was constituted the sessions judge had to conduct

(1996) 1 SCC 665


262

the trial. However, in the present case, the trial was conducted by the additional
sessions-judge. Those representing accused-appellant raised contention that -
additional sessions judge is not a sessions judge and therefore, trial could not be
conducted by any additional sessions judge. This contention was overruled by
Calcutta High Court. Against this order of the Calcutta High Court, special leave
petition was filed in the Supreme Court of India.
The Supreme Court of India dismissed the appeal holding,
“The object of the Juvenile Justice Act is to reform and rehabilitate the
juvenile offenders as useful citizens in the society. In the facts and
circumstances of the case, the benefit of the...... Act was denied to
them due to their own act of keeping the trial pending by protracting
litigation and in the meanwhile the appellants had crossed the age of
juvenile offenders and became adults..... Sessions judges would
include additional sessions judges under the Code. Therefore, he gets
all the power and the jurisdiction of the Sessions Judge to try the
offences enumerated under the Code. The Additional Sessions Judge,
therefore, is competent to proceed with the trial of the juvenile
offenders,.... ”
In case of Sant Das v. State of U.P, and others96 the principal issue was -
in the absence of the setting up of the Juvenile Justice Board as per the
requirement of section 5 of the Juvenile Justice (Care and Protection of Children)
Act, 2000, which authority should exercise the powers of the Board. After being
taken into custody for offence committed under section 302, IPC, the writ
petitioner had moved two applications, one for declaring him as a juvenile as he
was only 16 years 5 months and 4 days old on the date of the offence and second
for Bail. Sessions Judge, Fatehpur rejected both the applications on the ground
that the Sessions Court was not the proper forum for both reliefs and petitioner
should have first approached the Magistrate first under section 437 Cr.P.C. and
only after its rejection before Sessions Judge under Section 439 Cr.P.C. Against

96
2003-(109)-CRLJ-3424-ALL
263

this order writ petition was filed before the Allahabad High Court.
Petition was dismissed and the order of the Sessions Judge upheld. It was
observed that where Board is yet to be constituted for conducting trial of the
juveniles, the proper forum that can exercise the powers of the Board would be
the Magistrate having jurisdiction under section 437 Cr.P.C. and not the Sessions
Court.
In Ex. Gnr. Ajit Singh, S/o Mahesh Chand v. Union of India and Ors.91
iL

petitioner was enrolled in the army on 15 December, 2000. He was posted in


Rajasthan and thereafter for some offence of theft, a Court of Enquiry was
ordered against the petitioner and after recording of summary of evidence,
General Court Martial commenced and the petitioner was sentenced to suffer
rigorous imprisonment for seven years and was dismissed from service. The
petitioner challenged the proceedings under General Court Martial under the
Army Act and prayed that the conviction and sentence be quashed and he be
released from jail on the ground that he was a juvenile and therefore he could not
be tried by the provisions of General Court Martial under the Army Act.
The argument of the respondent that “as the petitioner was recruited in the
Army, even though he was a juvenile, the Army Act will have the applicability
and will override the provision of Juvenile Justice (Care & Protection of Children)
Act, 2000”, was rejected. The Court held that “It cannot be said that the
Parliament while enacting the present Act of 2000 was not aware that persons are
recruited in the Army at the age of 16 years.” Therefore the proceedings of the
General Court Martial were quashed and the petitioner was set free.
It was observed that: “the mere fact that the age has been enhanced to 18
years, irrespective of a boy or a girl and the Army Act is of the year 1950, it
cannot be said that the legislature wanted to keep persons who are under the Army
Act amenable to Army Act although they were juvenile under the present Act. In
that case a special exception was to be made under the present Act. Therefore, we
. find no force in the arguments of the respondent that Juvenile Act will have no

97
2004 Cri LJ 3994
applicability to the person governed under Army Act. The reliance placed by the
respondent on Article 33 of the Constitution of India is also misplaced. Article 33
only authorises the Parliament in relation to the members of the armed forces to
determine to what extent any of the Fundamental Rights can be restricted or
abridged so as to ensure the proper discharge of their duties and the maintenance
of discipline among them. Article 33 cannot be read to oust the applicability of
Juvenile Justice (Care & Protection of Children) Act, 2000 which is also an Act of
Parliament and in the absence of any exception provided in the said Act with
regard to its jurisdiction or applicability.”
In Nanhu v. State of UP.9S the conflict between the two Acts - Juvenile
Justice Act, 1986, and Dacoity Affected Areas Act, 1983 - was attempted to be
resolved. The juvenile in that case was aged about 10” years. The Sessions Judge
rejected the Bail on the ground that under section 10 of the Dacoity Affected
Areas Act the Bail cannot be granted unless no offence is made out. The learned
Single Judge of the Allahabad High Court relied on section 18 of the Juvenile
Justice Act, 1986 and held that the non obstante clause in the section would
override not only the provisions of Code of Criminal Procedure but also any other
law in force. The special law, namely, Juvenile Justice Act, 1986, would prevail
over die general law of section 10 of the Dacoity Affected Areas Act. The only
ground on which bail could be refused under section 18 of the Juvenile Justice
Act, 1986, being that the release was likely to bring the juvenile into association
with any known criminal or exposing him to moral danger or that his release
would defeat the ends ofjustice. In that case, no such ground was made out.
In Raj Singh v. State ofHaryana99 appellant was bom on 9.12.1974 as per
the certificate issued by the Board of School Education which stood reaffirmed by
another certificate produced before the Court. He was convicted under section 20
of the NDPS Act, 1985 with regard to an offence that was committed on
22.5.1990 on which date he was less than 16 years of age. The Apex Court held
that his trial and conviction by the Sessions Court stood vitiated because under

98
1990 All. L.J. 496
99
(2000)6 SCC 759
265

section 22 of the aforesaid Act, a different procedure for trial of the juvenile was
provided. The trial was quashed and the Court directed that his trial should be
r
conducted in accordance with the provisions of the Juvenile Justice Act.
In re: Sessions Judge, Kalpetta (Kerala)100 a Bench of the Kerala High
Court in dealing with an apparent conflict between the Juvenile Justice Act, 1986
and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,
as to which would prevail over the other, held that the provisions of latter Act
would have no overriding effect over the provisions of 1986 Act.
In case of Sunil Kumar Vs. State of Haryana101, the petitioner was an
accused in FIR No.233 dated ,17.5.1990 registered under Sections 376, 366 and
201 IPC at P.S. Sadar, Hisar. He was accused of committing rape on the
prosecutrix on 16.5.1990. Petitioner was sent to face trial for the aforesaid offence
and was convicted to undergo R.I. for 7 years under Section 376 IPC alongwith
other offences. A Criminal revision before High Court remained unsuccessful and
was dismissed. During pendency of the criminal appeal before High Court, the
petitioner made an application pleading that he was juvenile at the time of
commission of offence. The High Court disposed of the appeal without
considering the question ofjuvenility of the petitioner. On dismissal of appeal, the
petitioner preferred Special Leave Petition before the Apex Court which was also
dismissed. Being unsuccessful, the petitioner preferred a review petition before
Supreme Court which came to upon provision of Sections 7-A and 20 of the
Juvenile Justice Act, 2000. The court after considering the relevant provision held
that the competent court has the jurisdiction to pursue the juvenility of the
petitioner irrespective of upholding the conviction by the Supreme Court. It
further held that the question of juvenility can be decided by the court of Judicial
Magistrate 1st Class, Judicial Magistrate Ilnd Class and Executive Magistrates
including the High Court exercising the criminal jurisdiction.
In case of P. Deeptha and another v. V. S. Chundrasekaranm the crucial

100
1995 Cri.LJ.330
101
2010 (4) RCR (Criminal) 414
102
2003-(l 09)-CRLJ -4660 -MAD
266

question that, came up for the consideration was whether any proceeding could be
initiated- against the petitioners - minor boy and his sister, who were admitted to
r
the benefit of the Partnership Firm run by their parents. The respondent initiated
such proceeding under section 138 to 142 of the Negotiable Act for dishonour of
cheque issued by the Firm by way of security.
Keeping the fact in view that both petitioners being minor at the time of
the alleged commission of the offence, i.e., dishonour of cheque, petition calling
. for quashing of the proceedings against the petitioners was allowed. The Court
held that at the time of tiling of the complaint, petitioners were minors and
therefore, they are entitled to the benefit of the provisions of the Juvenile Justice
(Care and Protection of Children) Act,2000 particularly, section 17 of the said
Act, under which any proceeding initiated under Chapter VIII of the Code of
Criminal Procedure is not competent against a juvenile and no joint proceeding of
a juvenile could be held nor any juvenile could be charged with or tried for an
offence together with a person who is not a juvenile. If a juvenile is accused of
any offence, committed under Section 223 of the Code of Criminal Procedure or
any other law for the time being in force, but for the prohibition contained in sub­
section (1), such juvenile and any person who is not a juvenile, are charged and
tried together, the Board taking cognizance of that offence shall direct separate
trials of the juvenile and the other person. Under section 141 (1) of the Negotiable
Instruments Act, if the persons committing an offence under Section 138 is a
company, every person who, at the time when the offence was committed, was in
charge of and was responsible to the company for the conduct of the business of
the company, shall be deemed to be guilty of the offence and shall be liable to be
proceeded against and punished. The first petitioner is aged about 19 and is a
school going girl and though the liability attributed to her is a continuing liability.
Right from the time when the parties had transaction, the first petitioner cannot
also be reasonably construed to be liable since no valid materials have been plated
before this Court in proof of the requirement of the complaint that she was either
in charge of or responsible to the company for the conduct of the business of the
267

company and therefore, she cannot be deemed to be guilty of the offence and is
not liable to be proceeded against and punished in accordance with the provisions
r

of the N.I. Act, particularly within the meaning of Section 141(1) of the N.I. Act.
Therefore, the petitioners are not liable to be prosecuted nor punished in
accordance with the provisions of the N.I. Act, much less under Sections 138 to
142 of the said Act, particularly in view, of the admitted fact that both the
petitioners were minors at the time of the alleged commission of the offence. The
Court laid down that under sections 17 and 18 of the Juvenile Justice (Care and
Protection of Children) Act, 2000, no juvenile could either be proceeded against
in accordance with the procedures established by the Code of Criminal Procedure
nor have the Courts any competence to conduct any proceeding against the
juveniles along with non-Juveniles.
Similarly, in Daljit Singh v. State of Panjabm, it was held that Juvenile
Justice Act, 1986 is a complete Code in itself and has sweepingly overriding
effect on any other enactment of die State Legislature or Parliament viz, the Cr.
P.C. regarding inquiry/ proceedings or a trial against a delinquent juvenile on any
criminal charge.
In Raj Ambarish Sen Alias Ambarish Sen v. The State of West Bengal,104
the question before the court was whether beneficial provisions of the Code of
Criminal Procedure can be extended to juvenile which are not extended by the
Juvenile Justice Act. The petitioner Raj Ambarish Sen and Khokan Palta were
arrested under section 302/34 of the BPC. Raj Ambarish's case was committed to
the Court of Session and Khokan Palta being minor at the date of the commission
of offence, his case was sent to the juvenile court. Thereafter, mother of Khokan
Palta filed an application under section 307 of the Cr. P.C on behalf of her son
praying for pardon and an order treating him as an approver and witness on behalf
of the prosecution. This application was allowed. Against this revision was filed at
Calcutta High Court asking to set aside the order granting Khokan Palta the status
. of approver and witness. It was argued that once an offender is found to be a

103
1992 Cri.L.J 1051
104 .
2003-(109)-CRLJ -3830 -CAL
268

juvenile he or she is not to be dealt with under any law except the Juvenile Justice
Act, 1986 and no part of the Code of Criminal Procedure has any manner of
application in such regard.
The contention that giving of pardon to the juvenile delinquent would be
against the spirit of the Juvenile Justice Act was dismissed and revision failed. It
was observed:
1. The spirit underlying the provisions of the Juvenile Justice Act
appears to be to ensure that the interests of the juvenile are fully
protected and are not in the least prejudiced. By allowing the
juvenile to be an approver and to give evidence disclosing the
circumstances leading to the commission of the offence in question
the Court cannot be said to be causing any harm or prejudice to the
interest of the juvenile. Rather, to apply such provisions of the
Code to a juvenile will ensure for his benefit. As soon as a juvenile
is tendered pardon, it loses its character as an accused or
delinquent and it steps into the shoes of a witness. It should not be
forgotten that the sole object of the above provisions of the Cr. P.C.
is to obtain at the trial of a case evidence of a person who appears
to have been concerned in or privy to the offence in question. Such
a simple and benevolent provision has nothing to hamper or
hinder the interests of a juvenile delinquent, in such a situation the
juvenile delinquent having stepped into the shoes of a witness is to
be governed by the law which governs a child-witness simpliciter.
2. The JJ Act formulate the procedure which is to be observed for
the purpose of holding trial of juvenile delinquents and such
provisions have no applicability in respect of a question touching
the exercise of the power of granting pardon by a competent Court
under Section 306 or 307 Cr. P.C. to any person for the purpose of
obtaining his or her evidence regarding the commission of the
offence in question.
zoy

3. Section 308 Cr. P.C. only lays down the procedure to be


, followed in the event the Public Prosecutor alleges that the
approver has given false evidence. If ultimately such an exigency
arises, if the juvenile concerned having found to have given false
evidence and violated the conditions of the pardon is to be tried,
then he or she will be tried according to the procedure prescribed
under the JJ Act. So long as he was under the tender of pardon
granted by the Court, he was being presumed to have ceased to be
a delinquent having gained the status of a witness. Now that the
pardon is withheld, the juvenile is reverted back to the status of a
delinquent and will be dealt with as before in accordance with the
procedure as prescribed under that Act. In short, there is no room
for any clash, or conflict between -the provisions of Section 308
Cr. P.C. and those of the JJ Act. Since by virtue of such pardon
being granted to that person, he or she gains the status of a witness
the only question which will assume significance for being
considered by the Court is whether he or she can be a competent
person to he a witness under the provisions of Section 118 of the
Evidence Act.
4. The court has nothing more, to enquire as to the competence of
the juvenile concerned for the purpose of considering the question
of granting pardon to him.
In short, all that is being done by virtue of such an exercise the
person is being given the status of a witness after being discharged
from his status as an accused or a delinquent and thus there is
absolutely no question of the Court's violating or departing from
the provisions of the JJ Act by tendering pardon to the juvenile
concerned.
5. The further point that in order to examine such a person after
granting pardon to him the Court has to record a finding to the
270

effect that the juvenile is directly or indirectly concerned in or


privy to for such offence and recording to such a finding being
r

adverse the interest of a juvenile cannot be done by an ordinary


criminal court is also not acceptable because it is not correct to say
that the Court is recording any finding as to the involvement of the
concerned person in the commission of the offence in the sense in
which a finding of guilt is arrived at and recorded by the Court. In
view of the requirement of the provisions of S. 306 or 307 Cr. P.C.
the Court is only ascertaining whether the person was concerned in
or privy to the offence in question with a view to grant him pardon
and take his evidence. Such an order, if any, has no bearing on the
question of whether any such person is found guilty of the offence
or not nor such notes will have any evidentiary value or not they
can be used as evidence or materials for the purpose of seeing
whether the charge has been proved against such person or not. But
such an order of the Court will only serve -a procedural purpose
and will have no effect or impact on the merits of the case.
6. This contention was dismissed and it was held that the
provisions of the JJ Act are mainly confined to the trial, or for that
matter, the 'enquiry4 into the allegations levelled against the
juvenile delinquent by the juvenile court. The subject of granting
of pardon does not fall within this sphere of dealing with a juvenile
accused. When it comes to the gaming of pardon to a person by the
Court of Session, the distinction between an ordinary accused and
a juvenile one loses of its significance and becomes totally
immaterial. The Court at the time of exercising this discretion is to
treat the subject as a person who has been concerned in or privy to
the commission of the crime in question and not as an accused
person. The expression, 'any person' is an index of the intention of
the legislature in this regard and a person who has not been
271

arraigned as an accused is also to be given this privilege by the


-■ Court and hence the question whether he is a juvenile delinquent
has no special significance in the matter of considering the
question from the angle of the object that his or her evidence is to
be taken. This is the reason why the above contention that the
provisions of the Criminal Procedure Code cannot be allowed to
step into the area earmarked for JJ Act cannot be found to be
applicable here. The question whether a person should be granted
pardon or not in order to be examined as a witness does not fall
within the area earmarked for the JJ Act.
7. Examination of any person as a witness, whether ordinary or
special, by a Court has to be held in accordance with the procedure
which is provided under the Indian Evidence Act and no other law.
The granting of pardon to any person, be he an accused in any case
or not, and his consequent examination by a Court are governed by
Section 118 of the Evidence Act. There is no other section in this
Act to the applicable to such a ease.
8. Tendering of pardon to a juvenile delinquent is not legally
impermissible and is well within the competence of the Court of
Session which is in seisin of the offence in question and in that
view of the matter, once it is found that such tendering of pardon
and examination of the juvenile as a witness are lawful, the
procedure according to which such examination will have to be
held will be as provided under the said Section 118 of the Evidence
Act,
9. The JJ Act has been enacted with a view to making available a
host of benefits to the child-accused and in a sense it may be said
that it will rather be opposed to the solemn objects of the said Act
if we deprive the juvenile of the benefits which can be given to
him by applying Section 306 or 307 of the Code of Criminal
272

Procedure.
In Padmabari Dei v. District Magistrate, Cuttack105, the Orissa High
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Court observed that Section 3 of the National Security Act, 1980, is the
substantive and enabling provision for passing detention order. It refers to the
terminology 'any person'. Section 2(d) defines the word 'person' which includes a
foreigner also. In the absence of any exception, a juvenile also a person within
the meaning of National Security Act. Definition of the term 'person' as contained
in Section 3(42) of the general Clauses act also does not support the case of the
petitioner which defines the term 'person' as 'including any company or
association or body of individuals whether incorporated or not'. There is no
justification whatsoever to restrict the meaning of the term 'person' to a major or a
non-juvenile. The primary purpose and object of the National Security Act is to
apprehend certain variety of anti-social and subversive elements to insure that by
their activities larger interests of the citizens and society are not imperilled. It is
not meant to punish a man for having done something criminal in the past-
Keeping the above object of the National Security Act in view, there is no reason
to restrict its operation only to a major. Such an interpretation has the potentiality
of defeating the object of the national Security Act. Therefore, any person,
whether he is major or juvenile, would come within the net of the National
Security Act, once the subjective satisfaction about the prejudicial activities
referred to in Section 3, thereof is properly reached.
In case of Ramachandran v. The Inspector of Police, Madras106, it has
been held by the Madras High Court that a child below 16 years cannot be termed
as "goonda" within definition of S.2(h) of Tamil Nadu Prevention of Dangerous
Activities of Boot-leggers, Drug offenders, Forest Offenders, Goondas, Immoral
Traffic Offenders and Slum Grabbers Act, 1982 and therefore, his detention under
that Act would be unjustified. If a child is detained as a goonda he is exposed to
every such thing which Juvenile Justice Act,1986 says he should not be exposed
to If he is branded as a goonda in the sense that he has habitually committed or

105
1995 (3) CRIMES 156 (Ori)
106
1994 CRI. L.J. 3722
273

attempted to commit or abetted the commission of offences punishable under


Chapter 16 or Chapter 17 or Chapter 22 of the Indian Penal Code, a habit, he can
r
form only if after the commission of the first offence by him, he is not put to the
care of a parent or home, as the Juvenile Justice Act has contemplated to protect
him from evils of the Since a juvenile is always in a special custody and that
custody is deliberately chosen by the Juvenile Justice Act, it is difficult to think
that his delinquency will make him a habitual offender and a goonda in that
sense. However, when young children are found by the law enforcement
Authorities to be engaged in anti-social activities, it cannot be said that no action
should be taken against them., There should be more prompt action than in the
case of any adult offender, in the case of a juvenile. He should be taken to proper
custody but for the purposes of purpose under Juvenile Justice Act, the detaining
Authorities shall have the freedom to create a special home for juvenile
delinquents and juvenile delinquents can be detained in such homes.
In Antaryami Patra v. State of Orissa,101 the High Court was dealing with
provisions in Narcotic Drag and Psychotropic Substances Act of 1985 , vis-a-vis,
Juvenile Justice Acts 1986. The Court held that a juvenile delinquent being
accused of commission of an offence under the former Act cannot be released
unless the preconditions contained in Section 37 of die NDPS Act are complied
with in view of Section 18 of the Juvenile Justice Act which provides that an
accused shall not be released on bail if there appears reasonable grounds for
believing that the release is likely to bring him into association with any known
criminals or expose him to moral danger or that his release would defeat the ends
of justice, and that what is to be noticed is that release of an accused involved in
commission of an offence under the NDPS Act would defeat the ends of the
justice and the drug traffickers would pursue their objective of drug trafficking
through such juveniles. Therefore, section 37 of the NDPS Act would override
the provision of Section 18 of the Juvenile Justice Act and consequently, a
juvenile delinquent being accused of commission of an offence under the former

107
1993 CRILJ 1908
274

Act cannot be released unless the pre-conditions contained in Section 37 of the


NDPS Act are complied with.
r
The above decision cannot be held to be good law any longer because of
the decision of The Supreme Court in Raj Singh v. State of Haryana,108 where the
conviction was Under Section 20 of the NDPS Act and the Supreme Court held
that the appellant was a Juvenile being less than 16 years of age at the time of the
occurrence and therefore trial should have been held by Juvenile Court. The
appellant having been tried by sessions Court the Supreme Court set aside the
conviction and sentence imposed upon the appellant and directed that the
appellant should be dealt with in accordance with the provisions of the J. J.
Act. 1986.
In Matadin v. State of M.P109 bail application was filed by the petitioner
claiming to be 15 years of age. He was arrested for cultivating cannabis plants. It
was held that the provisions of Juvenile Justice Act overrode the provisions of
NDPS Act, and irrespective of section 36A of NDPS Act, a juvenile has to be
dealt with under Juvenile Justice Act.,1986.
In case of Prabakam, rep by his maternal aunt Nagammal v. State of
Tamilnadu, rep by its Secretary to Government, Home Department. The Deputy
Superintendent of Police, ‘Q’ Branch C.I..D. and The Inspector of Police the court
was called upon to answer two questions:
(1) Whether the petitioner is a juvenile in conflict with law?
Depending on the answer to this, the further question -
(2) Which of the Acts, POTA or the JJ (C&PC) Act, 2000 will have to be
invoked?
The court held the petitioner to be juvenile in conflict with law and it was held
that provisions of JJ (C&PC) Act,2000 will prevail over POTA. It was directed
that the petitioner shall be proceeded against only under J J (C &PC) Act, 2000. It
was observed that both the Acts are replete with non obstinate clauses. In POTA
some of the Sections containing non obstinate clause are Sections 14, 25, 30, 32,

108
MANU/SC/1380/1999
109
1994(3) CRIMES 510
275

33, 34,43, 45, 49, 51. In JJ. (C&PC} Act,2000 Sections 3, 4, 6, 11, 12,16, 17,18,
22 & 28cbntain non obstinate clauses. Both Acts. viz. J JC&PC) Act,2000 and the
r
POTA are special Acts passed by the Parliament. Both contain a surfeit of non
obstante clauses having overriding Effect but then juveniles have been given a
special place in the scheme of things.
Our country has been a party to various International Conventions and
Agreement and has enacted various Acts with children as the prime theme and
ensured that all their needs are met and their basic human rights are protected. We
have created greater responsibilities in ourselves when it comes to juveniles in
conflict with law. The various sections in J J (C&PC) Act,2000 to vouch for the
same. JJ (C&PC) Act,2000 no doubt reached the statute book two years earlier to
the POTA. It is possible to argue that at the time POTA was passed Parliament
was aware of the presence of JJ (C&PC) Act as law, that still it chose to introduce
Sec.56 conferring overriding powers under POTA and that therefore POTA
should prevail. JJ (C&PC) Act, 2000 dealing as it does with 'Alpha to Omega' of
the problems facing juveniles and juveniles in conflict with law providing as it
does for specialised approach towards the prevention and treatment of juvenile
delinquency in its full range is a special law and will prevail over POTA which is
a mere special law compared to JJ (C&PC) Act, 2000. JJ (C&PC) Act,2000 is the
monarch of all that it surveys, in its fields. Both are special but JJ (C&PC)
Act,2000 is more special (apologies to George Orwell). May be the offence
committed by the juvenile is shocking like murder or rape but the appropriate
provision in the Act is quite conscious of such situations. Section 7 of JJ (C&PC)
Act, 2000 enjoins the Magistrate, who is not empowered under the Act to exercise
the powers of the Board and before whom the juvenile or child is brought, to
forward the child to the competent authority. Section 12 provides that if the release
of the juvenile on bail is likely to bring him into association with any known
criminal or expose him to moral, physical or psychological danger or his release
would, defeat the ends of justice. If a Board is satisfied that a juvenile has
committed an offence it may allow the juvenile to go home with an advice or
276

admonition or direct him to participate in group counseling, community service,


etc., direct him to be released on probation as also order such directives as it may
r

think fit. The Board may also make the terms and conditions of supervision and
furnish copy to the juvenile, parent- guardian or other person or fit institution.
Thus, welfare of the juvenile is the prime concern of the law makers. The
legislature had intended that the juvenile should be extended special care,
treatment, development and rehabilitation. The Act overwhelmingly contemplates
total separation of juveniles from the mainstream offenders. Under no
circumstance should the juvenile have anything to do with them.
In Shri Jagadish Bhuyan, v. State of Assam,110 it was held that although
both the Juvenile Justice Act 1986 and TADA Act are special Acts, section 25 of
the TADA Act contains a non-obstante clause with a view to give TADA Act in
case of conflict, an overriding effect over the provisions in any enactment. The
Court reasoned that under the TADA Act, the terrorism has been treated as a
special criminal problem, that the Act creates anew class of offences called
'Terrorist Act and Disruptive Activities" which are to he tried exclusively by a
special Court called Designated Court by providing special procedure for trial of
such offences, and that when the language of section 25 of the TADA Act is so
clear, it cannot be said that TADA Act cannot overrode the Juvenile Justice Act.
In Sher Zamir v. Sure ofMadhya Pradesh,m the applicant was prosecuted
under the NDPS Act in the Court of Special Judge (NDPS Act), Mandsaur. He
filed application stating that on the date of incident i.e., 31-5-99, he was below 18
year of age and therefore, he should he tried by the juvenile court. The Special
Judge (NDPS Act) Mandsaur held that charge-sheet was filed on 11-8-99 and on
that day, the applicant was above 18 years of age, and therefore, he would not fall
within the definition of juvenile. On this analogy, the Special Judge dismissed the
application. The applicant there upon filed revision in the Madhya Pradesh
High Court. Finding no substance in the revision tiled by the applicant, it was
dismissed. The Applicant was denied the benefit of the J.J. (C&P) Act, 2000

no 1992 CR1.L.J. 3194


in 2005(1) MPHT73
277

because:
(i) The liicident had occurred on 31-5-1999, the applicant was arrested on 31-5-
r

1999 and he was produced before the competent authority on 1-6-1999. On 1-6-
1999 the applicant was above 16 years of age according to his own school
certificate and on that day the Act of 2000 did not come into force and the case of
the applicant had to be dealt under Juvenile Justice Act, 1986, which prescribes
the age ofjuvenile as 16 years.
(ii) On 1-1-2001, the date of coming in to force of the Act of 2000, the applicant
was above 19 years. Therefore, on that day also, he was not juvenile under the
new J.J. (C&P) Act, 2000.
(iii) Section 20 deals with the pending cases when the Act of 2000 came into
force. On that the applicant was above eighteen years of age and therefore not
eligible to get benefit of Section 20 of the Act, 2000.
It emerges from the various authoritative pronouncement of Hon'ble
Supreme Court and various High Courts that a juvenile charged with commission
of an offence has to be dealt with by the Juvenile Justice Board alone which has
the exclusive jurisdiction to hold an enquiry regarding the juvenile in conflict with
law in accordance with the provisions of Juvenile Justice (Care and Protection of
Children) Act, 2000. A joint trial of a juvenile with any other adult offender has
been prohibited to ensure segregation of the juveniles in conflict with law from
adult offenders even at the enquiry/trial stage. Now the Courts of Judicial
Magistrates, Executive Magistrates and also the High Court in exercise of its
criminal jurisdiction can decide the question ofjuvenility. However, once a person
is held to be a juvenile proceedings with regard him to can be held by the
Juvenile Justice Board only.
5.2.3 Apprehension and Production of Juvenile
Juvenile Justice (C & P) Act has defined and imposed special duties on the
police keeping in view the sensitivity of the issue of juvenile's apprehension and
detention. Broadly the following duties have been imposed on police by the Act.
1. As soon as a ‘Juvenile in conflict with law’ is apprehended by Police he shall
278

be placed under the charge of the Special Juvenile Police Unit or the designated
Police Officer, who shall' immediately report the matter to a member of the
r

Juvenile Justice Board. Till the time, such Board is constituted in Chandigarh, the
juvenile shall be produced before the concerned Court.
2. Designated Police Officer of the Police Station apart from dealing with the
cases of Juvenile crimes shall also be the Nodal Officer for attending the calls
from 'Woman & Child Helpline” and for investigating cases relating to Child
abuse. 'Woman & Child Helpline' is Building- Telephone No.1091 (toll free). This
telephone number should be displayed on the Notice Board of all Police Stations
and other Units.
3. SHOs will ensure that the designated officers personally attend cases involving
child victims.
4. Juvenile, who is arrested and is not released on bail by Officer In charge of
Police Station, shall be kept only in observation home until he can be brought
before a Board/Court.
5. Officer-In-charge of Police Station as soon as may be after arrest of a Juvenile
shall inform parent or guardian of the Juvenile and direct him to be present at the
board. Officer-in-charge of Police Stations shall inform Probation Officer of such
arrest to enable him to obtain information regarding antecedents and family
background of the juvenile.112
In State ofBihar v. Kapil Singh113, a girl child namely Manti was taken to
the police station to get information from her about the names of the thieves who
had committed the murder in her presence. Manti was kept at the Police Station
and was repeatedly questioned. At about midnight, she is alleged to have
disclosed the names of the three culprits. Subsequently, Manti and her mother
were both produced before a Magistrate who recorded their statements under
Section 164, Criminal Procedure Code. Manti was allowed to go home after her
statement had been recorded by the Magistrate. The Additional Sessions Judge
accepted as true the evidence of Manti. He held that there was corroboration of

112
http://chandigarhpolice.nic.in/juvenile.htm
113
(1968)3 SCR 810
279

her evidence with respect to at least two of the persons. Consequently, he


convicted all the three persons for the offence under Section 302 IPC. All the
three persons were sentenced to imprisonment for life for this offence. The three
convicted persons appealed to the High Court at Patna. The Bench held that it was
not safe to base any conviction on the solitary testimony of Manti and,
consequently, they gave Kapil Singh benefit of doubt, set aside his conviction and
sentences, and acquitted him. This criminal appeal was brought by special leave
by the State of Bihar against the acquittal of Kapil Singh. The crucial question to
be determined was whether the evidence of Manti can be relied upon for the
purpose of convicting Kapil Singh.
The Court held that there is always the danger in accepting the evidence of
a witness if she is under some influence, or if she is coached to give out a version
by persons who may have influence on her. In this case the court found the
circumstances making her evidence unsafe. The court found police was keeping
this girl confined in the police station for many days. In the day-time, she was
allowed to come up to the door of the room, but was not allowed to move away
from the door. Each night she was shut inside the room and was kept shut like that
for five or six nights. Her mother was allowed only to visit her. The court
expressed displeasure and surprise at this illegal confinement by the police and
held it to be against law and therefore rejected her testimony.
In case of Munna and others v. State of Uttar Pradesh and others114a news
report was published in the Indian Express newspaper dated December, 2, 1981
alleging that certain juvenile under-trial prisoners in the Kanpur Central Jail, are
kept in the jail instead of sending them to children's home and they were being
sexually exploited by the adult prisoners. One young boy named Munna was in
agony because of his sexual use by the adult prisoners over there and his
condition was such that he could not even sit. Three writ petitions were filed
based on this news report in the Supreme Court and one writ petition was filed by
the Human Right Organization in the High Court of Allahabad- seeking relief in

114
(1982) 1 SCC 545
280

respect of these juvenile under trial prisoners. The High Court of Allahabad
ordered "the senior most Session Judge of Kanpur to visit Kanpur Central Jail to
investigate the whole matter. But Kanpur Central Jail authorities within few days
of publishing of news report and subsequent filing of writ petitions transferred
most of the under-trial prisoners to the Children's Home, Kanpur on different
dates and therefore when the Sessions Judge visited the jail, he could not
interview any of them.
The Supreme Court while disposing of three writ petition filed under
Article 32, arising out of same facts, relied on the report made by the Session
Judge to the High Court of Allahabad. The Supreme Court took note of the fact
that when Sessions Judge went to Kanpur Central Jail, six children were just
before his visit were transferred to Children's homes. The court directed the
secretary of the U.P State Board of Legal aid and Advice, to immediately contact
these 6 children after finding out their addresses either from the court proceedings
or from the jail records and take their statements with a view to ascertaining what
was the treatment meted out to them in the Kanpur Central Jail and whether any
of them was maltreated or sexually exploited.
It was observed by the court that Juvenile delinquency is, by and large, a
product of social and economic maladjustment. Even if it is found that these
juveniles have committed any offences, they cannot be allowed to be maltreated.
They do not shed their fundamental rights when they enter the jail. Moreover, the
object of punishing being reformation, we fail to see what social objective can be
gained by sending juveniles to jails where they would come into contact with
hardened criminals and lose whatever sensitivity they may have to finer and
nobler sentiments. That is the reason why Children Acts are enacted by the Uttar
Pradesh Children Act, 1951... It is absolutely essential in order to implement the
provisions of the Uttar Pradesh Children Act, 1951 that children's homes or other
suitable places of safety are set up by the Government for the purposes of
providing a place of detention for children under the age of 16 years. No words
we can use would be strong enough to convey our feelings in this respect. A
281

nation which is not.concemed with the welfare of its children cannot look forward
to a bright future.
r

In Jaya Mala v. Home Secy., Govt, ofJ. & Kns preventive detention order
was passed against Riaz Ahmed under section 8 of the J & K Public Safety Act,
1978, pursuant to which he was detained in Central Jail, Jammu. The brother of
detenu approached the petitioner, who was associated with legal aid committee
for helping needy persons from the state of J & K. Thereupon the petitioner filed
writ petition before the Supreme Court.
The Court allowed the writ petition and quashed the detention order
imposed on detenu for the following reasons :
(i) It was not clear why normal procedure of investigation, arrest and
trial was found to be inadequate to thwart the criminal activities of the
detenu. It is not for a moment suggested that power under the
preventive detention law cannot be exercised where a criminal
conduct which could not be easily prevented, be exercised where a
criminal conduct which could not be easily prevented, checked or
thwarted, would not provide a ground sufficient for detention under
the preventive detention laws. But it is equally important to bear in
mind that every minor infraction of law cannot be upgraded to the
height of an activity prejudicial to the maintenance of public order.
(ii) Detenu was arrested and detained on October 18,1981. The report
by the expert is dated May 3, 1982 nearly seven months after the date
of detention. Growing in age day by day is an involuntary process and
the anatomical changes in the structure of the body continuously
occur. Even on normal calculation, if seven months are deducted from
the approximate age opined by the expert, In October 1981 detenu
was around 17 years of age. Undoubtedly, therefore, the detenu was a
young school-going boy. It equally appears that there was some
upheaval in the educational institutions. This young school-going boy

115
(1982) 2 SCC 538
282

may be enthusiastic about the student's rights and on two different


dates he marginally crossed the bounds of law. One cannot treat young
people, may be immature, may be even slightly misdirected, may be a
little more enthusiastic, with a large hammer.
In Sheela Barse and anr. (7) v. Union of India116 petitioner under Article
32 of the Constitution asked the Apex Court to ensure the release of children
below age of 18 years detained in jails within different states of the country,
production of complete information of children in jails, information as to the
existence of juvenile courts, homes, schools and for a direction that the District
Judges should visit jails or sub-jails within their jurisdiction to ensure that
children are properly looked after when in custody as also for a direction to the
State Legal Aid Boards to appoint duty counsel to ensure availability of legal
protection for children as and when they are involved in criminal cases and are
proceeded against.
The Apex Court directed the district judges in the country to nominate the
Chief Judicial Magistrate or any other judicial magistrate to visit the district jail
and sub-jails in their districts for the purpose of ascertaining how many children
helow the age of 16 years are confined in jail, what are the offences in respect of
which they are charged, how many of them have been in detention, whether they
have been produced before the children's court and, if so, when and how many
times and whether any legal assistance is provided to them. It was directed that
this report should also state- as to whether there are any children's homes, remand
homes, or observation homes for children within their district and, if here are, he
will inspect such children's homes, remand homes or observation homes for the
purpose of ascertaining as to what are their conditions in which children are kept
and what kind of facilities are provided there. District Judges were directed to
submit the complete reports through Registrars of respective High courts to the
Registry of the Supreme Court. Simultaneously state governments and state legal
aid boards were also given direction with respect to children below 16 years of

116
(1986) 3 SCC 596
25.}

age-confined in jails. But not many of them, complied with the direction given by
the Apex-Court.
therefore, the Supreme Court made order directing the Registry of various
High courts to ensure compliance with its order.
The court made following observations :
(i) It is an elementary requirement of any civilized society and it has
been so provided in various statutes concerning children that children
should not be confined to jail because incarceration in jail has a
dehumanizing effect and it is harmful to the growth and development
of children. But even so the facts placed before us, which include the
survey made by the Home Ministry and Social Welfare Department
show that a large number of children below the age of 16 years are
confined in jails in various parts of the country. Article 39 (f) of the
Constitution provides hat 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.
(ii) If a child is National asset, it is the duty of the State to look after
the child with a view to ensuring full development of its personality.
That is why all the statues dealing with children provide that a child
shall not be kept in jail. Even apart from this statutory prescription, it
is elementary that a jail is hardly a place where a child should be kept.
There can be no doubt that incarceration in jail would have the effect
of dwarfing the developing of the child, exposing him to baneful
influences, coarsening his conscience and alienating him from the
society. It is a matter of regret that despite statutory provisions and
frequent exhortations by social scientists, there is still large number of
children in different jails in the country as is now evident from the
reports of the survey made by the District Judges pursuant to our
284

order dated 15th April, 1986. Even where children are accused of
offences, they must not be kept in jails. It is no answer on the part of
the State to say that it has not got enough number of remand homes or
observation homes or other place where children can be kept and that
is why they are lodged in jails. It is also no answer on the part of the
State to urge that the ward in the jail where the children are kept is
separate from the ward in which the other prisoners are detained. It is
the atmosphere of the jail which has a highly injurious effect on the
mind of the child, estranging him from the society and breeding in
him aversion bordering on hatred against a system which keeps him
in jail. We should therefore like once again to impress upon the State
Government that they must set up necessary remand homes and
observation homes where children accused of an offence can be
lodged pending investigation and trial. On no account should the
children be kept in jail and if a State Government has not got
sufficient accommodation in its remand homes or observation homes,
the children should be released on bail instead of being subjected to
incarceration in jail.
(iii) The problem of detention of children accused of an offence
would become much more easy of solution if the investigation by the
police and the trial by the Magistrate could be expedited. The report
of survey, made by District Judges shows that in some places children
have been in jail for quite long periods. We fail to see why
investigation into offences alleged to have been committed by
children cannot be completed quickly and equally, why can the trial
not take place within a reasonable time after the filing of the charge-
sheet. Really speaking, the trial of children must take place in the
Juvenile Courts and not in the regular Criminal Courts. There are
special provisions enacted in various statutes relating to children
providing for trial by Juvenile Courts in accordance with a special
ZS0

procedure intended to safeguard the interest and welfare of children,


but, we find that in many of the States there are no Juvenile Courts
functioning at all and even where there are Juvenile Courts, they are
nothing but a replica of the ordinary Criminal Courts, only the label
being changed. The same Magistrate who sits in the ordinary
Criminal Court goes and sits in the Juvenile Court and mechanically
tries cases against children. It is absolutely essential, and this is
something which we wish to impress upon the State Government with
all the earnestness at our command, that they must set up Juvenile
Courts, one in each district, and there must be a special cadre of
Magistrates who must be suitably trained for dealing with cases
against children. They may also do other criminal work, if the work
of the Juvenile Court is not sufficient to engage them folly, but they
must have proper and adequate training for dealing with cases against
juveniles, because these cases require a different type of procedure
and juveniles, because these cases require a different type of
procedure and qualitatively a different kind of approach.
(iv) Where a complaint is filed or first information report is lodged
against a child below the age of 16 years for an offence punishable
with imprisonment of not more than 7 years, the investigation shall be
completed within a period of three months from the date of filing of
the complaint or lodging of the First Information Report and if the
investigation if not completed within this time, the case against the
child must be treated as closed. If within three months, the charge-
sheet is fled against the child in case of an offence punishable with
imprisonment of not more than 7 years, the case must be tried and
disposed of within a further period of 6 months at the outside and this
period should be inclusive of the time taken up in committal
proceedings, if any.
(v) Moreover, it is not enough merely to have legislation on the
286

subject, but it is equally, if not more, important to ensure that such


legislation is implemented in all earnestness and mere lip sympathy is
not paid to such legislation and justification for non-implementation
is not pleaded on ground of lack of finances on the part of the state.
The greatest recompense which the state can get for expenditure on
children is the building up of a powerful human resource ready to
take its place in the forward march of the Nation”.
In Sheela Barse (II) and others v. Union of India and Others117 this case
was follow up of its earlier order made by the court which was not abided by
District judges.
The court directed that:
(i) the trial of children must take place in the juvenile courts and not
in the regular criminal courts.
(ii) It would be desirable if the Central Government initiates
Parliamentary legislation on the subject, so hat there is complete
uniformity in regard to the various provisions relating to children in
the entire territory of the country. The Children's Act which may be
enacted by Parliament should contain not only provisions for
investigation and trial of offences against children below the age of
16 years but should also contain Mandatory provisions for ensuring
social, economic and psychological rehabilitation of the children who
are either accused of offences or are abandoned or destitute or lost.
Moreover, it is not enough merely to have legislation on the subject,
but it is equally important to ensure that such legislation is
implemented in all earnestness and mere lip sympathy is not paid to
such legislation and justification for non-implementation is not placed
on ground of lack of finances on the part of the state.
IIS
In Supreme Court Legal Aid Committee v. Union of India and others
which was follow up of Sheela Barse (I), the court took note of the fact that

117
(198) 3 SCC 632
118
(1989) 2 SCC 325
287

Juvenile Justice Act had come into force. Every District judge was therefore
directed to report to the Registry of the Supreme Court as to how many juveniles
r
homes, special homes, and observation homes have been set up as required under
section 9,10 and 11 of the Juvenile Justice Act, 1986. The court also took note of
the fact that the number of children in regular jails was the highest in West Bengal
and Bihar.
In case of Master Rajeev Shankar Lai Parmar & another vs. Officer-in­
charge, Police Station, Malad and Others,119 first Information Report was filed
against petitioner on 25th May, 2002 for offences punishable under Sections 302
and 307 of the Indian Penal Code. On 19th July, 2002, charge-sheet was
submitted before the Additional Chief Metropolitan Magistrate, 24th Court at
Borivali, Mumbai. In view of the fact that the allegations were in respect of the
commission of offences punishable under Sections 302 and 307, the case was
committed to the Sessions Court on 2nd August, 2002. Though petitioner accused
had stated his age as to be 22 years and accordingly arrested and kept as an
undertrial prisoner, the Sessions Judge held that he appeared to be "much more
younger than 22 years" and accordingly, an order was passed remanding the
accused to the Juvenile Justice Board and by an order dated 7th May, 2003. The
application was allowed. The Sessions Judge observed that petitioner accused was
bom on January 8, 1986. Thus, he was a Juvenile under 13 years of age on the
date of the incident. He was, therefore, ordered to be transferred to Juvenile Court
for consideration of his case by Juvenile Justice Board constituted under the
Juvenile Justice (Care and Protection of Children) Act, 2000. The petitioner
accused approached the - High Court as in spite of the direction of the Additional
Sessions Judge, the petitioner was neither shined to an Observation Home, nor his
case was placed before Juvenile Justice Board asking for following:
(a) to declare the First Petitioner's incarceration in Mumbai Central Prison at
Arthur Road unlawful and in violation of the Juvenile Justice (Care and Protection
of Children) Act, 2000 and the Constitution of India;,

119
2003-(109) CRLJ - 4522-BOM
288

(b) to direct the second Respondent to produce the first Petitioner before the
Juvenile'Justice Board forthwith;
r

(c) to order and direct that the first Petitioner be shined forthwith nom the
Mumbai Central Prison at Arthur Road to the Observation Home at Umerkhadi;
(d) to expedite the inquiry of the first Petitioner before the Juvenile Justice Board
so as to complete it within 2 months of the First Petitioner's first production 1
(e) to grant compensation of Rs. 1,00,000 (Rupees One lakh only) to the first
Petitioner for his illegal detention in the police lock up and jail for 10 months from
the date of arrest on 21-5-2003 to 7-3-2003; (f) to grant compensation of Rs.
30,000/- (Rupees thirty thousand.only) for the First Petitioners illegal detention in
Mumbai Central Prison after his having been declared a Juvenile by the Sessions
Court in Sessions Case on 7-3-2003 (756 of 02);
(g) to order and direct that it is mandatory for arresting by police personnel.
(i) to ask the arrestee his age at the time of arrest.
(ii) to forward and file the cases of those arrestees claiming to be under 18 years
of age before the Juvenile Justice Board.
(iii) to include in the Arrest Panchanama that the arrestee was asked his age at the
time of arrest and has stated his age as being "X" number of years;
(h) to order and direct that the non-compliance by police personnel of the
procedure laid down under prayer (g) above be treated as misconduct and a
departmental inquiry be initiated against such police personnel;
(i) to direct the Registrar, Appellate (Criminal) Side, High Court, Bombay, to _
issue a notification directing the Magistrates.
(i) to ask each accused his age at first production stage and record the same in the
roznama.
(ii) to conduct an inquiry with regard to determination of age of an accused when
he claims to be under 21 years of age.
(iii) to give the accused an opportunity to produce documentary evidence with
regards to age, and only in absence of such evidence medical examination to be
ordered.
289

(iv) to forthwith transfer an accused found to be under 18 years of age to the


observatfon Home and his case to the Juvenile Justice Board along with the
r

findings of the inquiry;


(j) for ad-interim orders in terms of prayer above;
(k) for costs of and incidental to this petition; and
(l) for such further and other orders and reliefs as the nature and circumstances of
the case may require.
On June 11, 2003, when the matter was placed before the High Court, the
High Court directed the respondents to take immediate steps to shift petitioner to
Observation Home at Umerkhadi. The High Court also directed the authorities to
produce the petitioner before the J uverlile. Justice Board on 16th June, 2003. On
July 2,2003, the High Court noted that the directions issued by it on June 11,2003
were complied with. The petitioner was shifted to Observation Home. He was
also produced before the Juvenile Justice Board. Regarding other prayers of
payment of compensation as also issuing general directions, the State prayed for
time contending that the order passed by the Sessions Judge was not in
accordance with law. The High Court granted time as prayed by the State. In the
meanwhile, the State authorities challenged the order of the Additional Sessions
Judge, Greater Mumbai, which was dismissed.
Regarding compensation to petitioner it was observed that the order was
passed by the Additional Sessions Judge on 7th March, 2003 which was received
by the Thane Jail Authorities on the same day. This order could not i be
implemented and the petitioner could not be shifted to the Observation Home nor
he could be produced before the Juvenile Justice Board because of non­
availability of police escort. Hence, without there being any fault on the part of
the accused, he was kept in prison, firstly at Thane and then in Mumbai. Thus,
there was a gap of more than three months in carrying out the order passed by the
Additional Sessions Judge. The order dated 7th March, 2003 was implemented
and effected only on 13th June, 2003. Therefore, respondents were ordered to pay
to petitioner an amount of compensation of Rs. 15,000.
290

In Master Salim Ikramuddin Ansari and Maharukh Adenwalla v. Officer-


in-charge, The Superintendent and State of Maharashtra, through Secretary,
Home Department, the petitioner was arrested on 16th November, 2001 when
he was about 15 years of age under Sections, 392 and 397 of the Indian Penal
Code. A charge-sheet was Bled on 14m February, 2002- before the Additional
Chief Metropolitan Magistrate, 26th Court, Borivali. Thereafter, the ease was
committed to the Court of Sessions on 3’d April, 2002 and petitioner was I
produced twice before the Metropolitan Magistrate at Borivali and then shifted to
judicial custody on 23rd November, 2001. The petitioner was shifted to Mumbai
Central Prison and thereafter, he was never produced before the Metropolitan
Magistrate, Borivali. He was not produced on as many as ten consecutive dates of
court-hearings. Even when the case was committed to the Court of Sessions on 3
td April, 2002, he was not produced before that Court on next eight consecutive
dates. Petitioner was neither produced in Court when a charge-sheet was filed on
14th February, 2002, nor when his case was committed to the Court of Sessions
on 3'd April, 2002, nor when the Sessions Court granted him bail on 17 October,
2002. Even after the first petitioner was declared juvenile, he was neither
produced before the Juvenile Justice Board, as directed, nor was he produced
before the Sessions Judge on any of the days when his case was listed for hearing.
He was not shifted to the Observation Home, despite clear and categoric direction
by the Court. He therefore, moved this petition with a prayer to declare his
incarceration in Mumbai Central Prison unlawful and in violation of the Act along
with direction to produce him before the Juvenile Justice Board. The further
prayer was to shift him from Mumbai Central Prison to the Observation Home at
Umerkhadi.
The Bombay High Court issued a show-cause notice to the respondents.
Pursuant to the notice of Court, Superintendent of Mumbai Central Prison,
Mumbai, filed affidavit stating that the petitioner could not be produced before the
Sessions Court between 11th December, 2003 and 7th May, 2004 because of non-

120
2005 Cri LJ799
x

availability of the police escort. The Registrar of the Sessions Court had issued
letter on, 11th December, 2003 by which the second respondent was directed to
transfer the first petitioner to the Juvenile Observation Home, Umerkhadi,
Mumbai. It was alleged in the affidavit that the letter was received on 17th
December, 2003 was misplaced due to oversight and overburden. The petitioner’s
letter was not entered in the Inward Register. Therefore, orders of the Sessions
Court were not within the knowledge and notice of the staff. The explanation
given for that was that the staff is very busy because, though the capacity of the
jail is only 804 prisoners, there were 3200 prisoners lodged therein.
The Bombay High Court after going through affidavit held that "this,
indeed, is a gross case of violation of Article 21 of the Constitution. Because of
sheer dereliction of duty and negligence, a boy of just 15 years, was compelled to
remain in prison for 25 months from 16th November 2001 to 11th Deeember2003
with adult and hardened criminals.
The Court observed that "what is more shocking is that even after he was
declared a juvenile by the order of the Court of Sessions, he was not sent to the
Observation Home until 9m July 2004. The startling facts of this case will shock
anyone's conscience. A 15-year-old boy had to remain behind the bars for almost
three years because of the sheer negligence, indifference and inhuman attitude
adopted by the respondents. Looking to the extraordinary facts of this case, the
demand of the first petitioner to claim compensation is fully justified."
Hence the High Court on consideration of the totality of the facts and
circumstances of this case awarded the petitioner compensation of Rupees one
lakh. The Court directed the respondents to deposit the compensation amount
with the Registrar-General of the High Court.
The Court further noted that petitioner was granted bail by the Court of
Sessions on 21st February 2002, but he could not be released on bail because he
could not fulfill the financial condition attached to the bail order. The root cause
of this unfortunate occurrence -and incident is the first petitioner's poverty,
ignorance and illiteracy. Therefore the High Court directed all the Sessions Courts
292

and Magistrate’s Courts to get the compliance report of their orders after a period
of six Weeks to ensure whether their orders have been complied with or not or
r

because of financial difficulties or otherwise, the accused could not be released.


This would ensure that similar unfortunate cases are not repeated.
In case of R.D. Upadhyay v. State ofA.P. and Ors.m the National Institute
of Criminology and Forensic Sciences conducted a research study of children of
women prisoners in Indian jails. The salient features of the study brought to the
notice of all Governments in February 2002, were:
(i) the most of these children were living in really difficult conditions
and suffering from diverse deprivations relating to food, healthcare,
accommodation, education, recreation, etc.;
(ii) no appropriate programmes were found to be in place in any jail,
for their proper bio-psycho-social development. Their looking after was
mostly left to their mothers. No trained staff was found in any jail to take
care of these children;
(iii) in many jails, women inmates with children were not given any
special or extra meals;
(iv) no separate or specialised medical facilities for children were
available in jail;
(v) no prison office was deployed on the exclusive duty of looking
after these children or their mothers. They had to perform this duty
alongside many other duties including administrative work, discipline
maintenance, security-related jobs etc. None of them was reported to have
undergone any special training in looking after the children in jails.
Appeals were filed in the Supreme Court to draw the attention of the Court
to the plight of little children on account of the arrest of their mothers for certain
criminal offences.
The Court made following important observations:
1. Children, for none of their fault, but per force, have to stay in jail with

121
20D6(3) ALD 42(SC)
their mothers. In some cases, it may be because of the tender age of the child,
while in other cases, it may be because there is no one at home to look after them
or to take care of them in absence of the mother. The jail environment is certainly
not congenial for development of the children.
2i For the care, welfare and development of the children, special and specific
. provisions have been made both in Part III and IV of the Constitution of India,
besides other provisions in these parts which are also significant. The best
interest of the child has been regarded as a primary consideration in our
Constitution.
3. Article 15 prohibits discrimination on grounds of religion, race, caste, sex
or place of birth. Article 15(3) provides that this shall not prevent the State from
making any special provision for women and children. Article 21A inserted by
86th Constitutional Amendment provides for free and compulsory education to all
children of the age of six to fourteen years. Article 24 prohibits employment of
children below the age of fourteen years in any factory or mine or engagement in
other hazardous employment. The other provisions of Part III that may be noted
are Articles 14, 21 and 23. Article 14 provides that the State shall not deny Page
2069 to any person equality before the law or the equal protection of the laws
within the territory of India. Article 21 provides that no person shall be deprived
of his life or personal liberty except according to procedure established by law.
Article 23 prohibits trafficking in human beings and forced labour. We may also
. note some provisions of Part IV of the Constitution. Article 39(e) directs the State
to ensure that the health and strength of workers, men and women, and the tender
age of children are not abused and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength. Article 39(f)
directs the State to ensure 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. Article 42 provides that the State shall make provision for
securing just and humane conditions of work and maternity relief. Article 45
294

stipulates that the State shall endeavour to provide early childhood care and
education for all children until they complete the age of six years. Article 46
r

provides that the State shall promote with special care the educational and
economic interests of the weaker sections of the people, and, in particular, of the
Scheduled Castes and the Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation. Article 47 provides that the State shall
regard the raising of the level of nutrition and the standard of living of its people
and the improvement of public 'health as among its primary duties and, in
particular, the State shall endeavour to bring about prohibition of the consumption
except for medicinal purposes of intoxicating drinks and of drugs which are
injurious to health.
4. Apart from the aforesaid constitutional provisions, there are wide range of
existing laws on the issues concerning children, such as, the Guardians and Wards
Act, -1890, Child Marriage Restraint Act, 1929, the Factories Act, 1948, Hindu
Adoptions and Maintenance Act, 1956, Probation of Offenders Act, 1958,
Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960,
the Child Labour (Prohibition and Regulation) Act, 1986, Juvenile Justice (Care
and Protection of Children) Act, 2000, the Infant Milk Substitutes, Feeding
Bottles and Infant Foods, (Regulation of Production, Supply and Distribution)
Act, 1992, Pre-natal Diagnostic Techniques (Regulation and Prevention of
Misuse) Act, 1994, Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995, immoral Traffic (Prevention) Act, 1986.
5. The Juvenile Justice Act, 2000 replaced the Juvenile Justice Act, 1986 to
comply with the provisions of the Convention on the rights of the child which has
been acceded to by India in 1992. In addition to above, the national policy for
children was adopted on 22nd August, 1974. This policy, inter alia, lays down
that State shall provide adequate services for children both before and after birth,
and during the growing stages for their full physical, mental and social
development. The measures suggested include amongst others a comprehensive
health programme, supplementary nutrition for mothers and children, promotion
z,yj

of physical education and recreational activities, special consideration for children


of weaker sections and prevention of exploitation of children.
6. The Government of India is implementing various schemes and programmes
for the benefit of the children. Further, a National Charter for children 2003 has
been adopted to reiterate the commitment of the Government to the cause of the
children in order to see that no child remains hungry, illiterate or sick. By the said
Charter, the Government has affirmed that the best interests of children must be
protected through combined action of the State, civil society and families and
their obligation in fulfilling children's basic needs. National Charter has been
announced with a view to securing for every child inherent right to enjoy happy
childhood, to address the root causes that negate die health, growth and
development of children and to awake the conscience of the community in the
wider societal context to protect children from all forms of abuse, by
strengthening the society and the nation. The National Charter provides for
survival, life and liberty of all children, promoting high standards of health and
nutrition, assailing basic needs and security, play and leisure, early childhood care
for survival, growth and development, protection from economic exploitation and
all forms of abuse, protection of children in distress for the welfare and providing
opportunity for all round development of their personality including expression of
creativity etc.
7. This Court has, in several cases, accepted International Conventions as
enforceable when these Conventions elucidate and effectuate the fundamental
rights under the Constitution. They have also been read as part of domestic law, as
long as there is no inconsistency between the Convention and domestic law.
The Supreme Court issued the following guidelines:
1. A child shall not be treated as an undertrial /convict while in jail with his/her
mother. Such a child is entitled to food, shelter, medical care, clothing, education
and recreational facilities as a matter of right.
2. Pregnancy:
a. Before sending a woman who is pregnant to a jail, the concerned authorities
296

must ensure that jail in question has the basic minimum facilities for child
delivery as well as for providing pre-natal and post-natal care for both, the mother
r

and the child.


b. When a woman prisoner is found or suspected to be pregnant at the time of her
admission or at any time thereafter, the lady Medical Officer shall report the fact
to the superintendent. As soon as possible, arrangement shall be made to get such
prisoner medically examined at the female wing of the District Government
Hospital for ascertaining the state of her health, pregnancy, duration of pregnancy,
probable date of delivery and so on. After ascertaining the necessary particulars, a
report shall be sent to the Inspector General of Prisons, stating the date of
admission, terms of sentence, date of release, duration of pregnancy, possible
date of delivery and so on.
e. Gynaecological examination of female prisoners shall be performed in the
District Government Hospital. Proper pre-natal and post-natal care shall be
provided to the prisoner as per medical advice.
3. Child birth in prison:
a. As far as possible and provided she has a suitable option, arrangements for
temporary release/parole (or suspended sentence in case of minor and casual
offender) should be made to enable an expectant prisoner to have her delivery
outside the prison. Only exceptional cases constituting high security risk or cases
of equivalent grave descriptions can be denied this facility.
b. Births in prison, when they occur, shall be registered in the local birth
registration office. But the fact that the child has been bom in the prison shall not
be recorded in the certificate of birth that is issued. Only the address of the
locality shall be mentioned.
c. As far as circumstances permit, all facilities for the naming rights of children
bom in prison shall be extended.
4. Female prisoners and their children:
a. Female prisoners shall be allowed to keep their children with them is jail till
they attain the age of six years.
297

b. No female prisoner shall be allowed to keep a child who has completed the age
of six years. Upon reaching the age of six years, the child shall be handed over to
a suitable surrogate as per the wishes of the female prisoner or shall be sent to a
suitable institution run by the Social Welfare Department. As far as possible, the
child shall not be transferred to an institution outside the town or city where the
prison is located in order to minimize undue hardships on both mother and child
due to physical distance.
c. Such children shall be kept in protective custody until their mother is released
or the child attains such age as to cam his/her own livelihood.
d. Children kept under the protective custody in a home of the Department of
Social Welfare shall be allowed to meet the mother at least once a week. The
Director, Social Welfare Department, shall ensure that such children are brought
to the prison for this purpose on the date fixed by the Superintendent of Prisons.
e. When a female prisoner dies and leaves behind a child, the Superintendent shall
inform the District Magistrate concerned and he shall arrange for the proper care
of the child. Should the concerned relative(s) be unwilling to support the child,
the District Magistrate shall either place the child in an approved institution/home
run by the State Social Welfare Department or hand the child over to a responsible
person for care and maintenance.
5. Food, clothing, medical care and shelter:
a. Children in jail shall be provided with adequate clothing suiting the local
climatic requirement for which the State/U.T. Government shall lay down the
scales.
b. State/U.T. Governments shall lay down dietary scales for children keeping in '
view the calorific requirements of growing children as per medical norms.
c. A permanent arrangement needs to be evolved in all jails, to provide separate I
food with ingredients to take care of the nutritional needs of children who reside
in them on a regular basis.
d. Separate utensils of suitable size and material should also be provided to each
mother prisoner for using to feed her child.
298

e. Clean drinking water must be provided to the children. This water must be
periodically checked.
f. Children shall be regularly examined by the Lady Medical Officer to monitor
their physical growth and shall also receive timely vaccination. Vaccination charts
regarding each child shall be kept in the records. Extra clothing, diet and so on
may also be provided on the recommendation of the Medical Officer.
g. In the event of a woman prisoner falling ill, alternative arrangements for
looking after any children falling under her care must be made by the jail staff.
h. Sleeping facilities that are provided to the mother and the child should be
adequate, clean and hygienic.
i. Children of prisoners shall have the right of visitation.
j. The Prison Superintendent shall be empowered in spacial cases and where
circumstances warrant admitting children of women prisoners to prison without
court orders provided such children are below 6 years of age.
6. Education and recreation for children of female prisoners.
a. The child of female prisoners living in the jails shall be given proper education
and recreational opportunities and while their mothers are at work in jail, the
children shall be kept in crunch index he charge of a matron/female warder. This
facility will also be extended to children of warders and other female prison staff.
b. There shall be a crhche and a nursery attached to the prison of women where
the children of women prisoners will be looked after. Children below three years
of age shall be allowed in the crunch and those between three and six yearn shall
be looked after in the nursery. The prison authorities shall preferably run the said
crhche and nursery outside the prison premises.
7. In many states, small children are living in sub-jails that are not at all equipped
to keep small children. Women prisoners with children should not be kept in such
sub-jails, unless proper facilities can be ensured which would make for a
conducive environment there, for proper biological, psychological and social
growth.
8. The stay of children in crowded barracks amidst women convicts, under trails,
299

offenders relating to all types of crimes including violent crimes is certainly


harmful for the development of their personality. Therefore, children deserve to be
r
separated from such environments on a priority basis.
9. Diet: Dietary scale for institutionalized infants/children prepared by Dr. A.M.
Dwarkadas Motiwala, MD (Paediatrics) and Fellowship in Neonatology (USA) as
been submitted by Mr. Sanjay Parikh. The document submitted recommends
exclusive breastfeeding on the demand of the baby day and night. If for some
reason, the mother cannot feed the baby, undiluted fresh milk can be given to the
baby. It is emphasized that "dilution is not recommended; especially for low
socio-economic groups who are also illiterate, ignorant, their children are already
malnourished and are prone to gastroenteritis and other infections due to poor
living conditions and unhygienic food habits. Also, where the drinking water
is not safe/reliable since source, of drinking water is a' question mark. Over­
dilution will provide more water than milk to the child and hence will lead to
malnutrition and infections. This in turn will lead to growth retardation and
developmental delay both physically and mentally. " It is noted that since an
average Indian mother produces approximately 600 - 800 ml. milk per day
. (depending on her own nutritional state), the child should be provided at least 600
ml. of undiluted fresh milk over 24 hours if the breast milk is not available. Page
2084 The report also refers to the "Dietary Guidelines for Indians - A Manual,"
published in 1998 by the National Institute of Nutrition, Council of Medical
Research, Hyderabad, for a balanced diet for infants and children ranging from 6
months to 6 years of age. It recommends the following portions for children from
the ages of 6-12 months, 1-3 years and 4-6 years, respectively: Cereals and
Millers - 45, 60-120 and 150-210 grains respectively; Pulses-15, 30 and 45 grams
respectively; Milk - 500 ml (unless breast fed, in which case 200 ml); Roots and
Tubers - 50, 50 and 100 grams respectively; Green Leafy Vegetables - 25, 50 and
50 grams respectively; Other Vegetables - 25, 50 and 50 grams respectively;
Fruits - 100 grams; Sugar - 25, 25 and 30 grams respectively; and Fats/Oils
(Visible) - 10, 20 and 25 grams respectively. One portion of pulse may be
300

exchanged with one portion (50 grams) of egg/meat/chicken/fish. It is essential


that the'above food groups to be provided in the portions mentioned in order to
ensure that both macronutrients and micronutrients are available to the child in
adequate quantities.
10. Jail Manual and/or other relevant Rules, Regulations, instructions etc. shall be
suitably amended within three months so as to comply with the above directions.
If in some jails, better facilities are being provided, same shall continue.
11. Schemes and laws relating to welfare and development of such children shall
be implemented in letter and spirit. State Legislatures may consider passing of
necessary legislations, wherever necessary, having regard to what is noticed in
this judgment.
12. The State Legal Services Authorities shall take necessary measures to
periodically inspect jails to monitor that the directions regarding children and
mother are complied with in letter and spirit.
13. The Courts dealing with cases of women prisoners whose children are in
prison with their mothers are directed to give priority to such cases and decide
their cases expeditiously.
The Juvenile Justice (Care and Protection of Children) Act, 2000 has taken
care of the sensitive issue of apprehension and detention of a juvenile by the
police. The juvenile in conflict with law soon after his apprehension has to be
placed under the charge of special juvenile police unit of designated officers. The
various pronouncement of the Apex Court have emphasized that it is duty of the
State to ensure for development of child personality that is why the law dealing
with the children provide that they shall not be kept in jail. But despite such a
beneficial law for the juvenile the Children are still being detained by the police in
the police station on account of apathy and lack of sensitization in the police
department towards the delicate requirements of the childhood. However, the
provisions made by Juvenile Justice (Care and Protection of Children) Act, 2000
providing for special police units etc. are welcome enactment.
301

5.2.4 Bail to Juvenile


Section 12 of U(C&P) Act, 2000 provides for bail to all persons who are
r
apparently a juvenile irrespective of the offence being bailable or non-bailable. It
reads as under :-
“12. Bail of juvenile -(l)When any person accused of a bailable or
non-bailable offence, and apparently a juvenile, is arrested or
detained or appears or is brought before a Board, such person shall,
notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974) or in any other law for the time being in
force, be released on bail with or without surety but he shall 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 ofjustice.
(2) When such person having been arrested is not released on bail
under Sub-section (1) by the officer in charge of the police station, such
officer shall cause him to be kept only in an observation home in the
prescribed manner until he can be brought before a Board.
(3) When such person is not released on bail under Sub-section (1) by
the Board it shall, instead of committing him to prison, make an order
sending him to an observation home or a place of safety for such period
during the pendency of the inquiry regarding him as may be specified in the
order.”
It has been provided under the Act that Bail and not the jail is a rule.
However, the courts have applied the provisions to different cases and expressed
judicial opinion on the basis of particular facts of that case wherein the accused
being juvenile or otherwise was held entitled to bail. The trend ofjudicial opinion
can be examined in the cases given below.
In Brijesh Kumar v. The State,122 entries in the school leaving certificate

122
98(2002) DLT 63
302

were rejected on the ground that parents understated the age of the children at the
time of
r
admission to School. The Juvenile Court on the basis of the material on
record appreciated the evidence and declined to accept the evidence of the father
of the petitioner claiming to be juvenile.
The High Court accepted the reasoning adopted by the juvenile court for
rejecting entries in the School Leaving Certificate. The contention of the
petitioner that he was a juvenile was therefore rejected. However, even though
petitioner was held not to be a juvenile, the court released him on bail, after
observing that he was a young boy of impressionable age and if he remains in the
company of hard-core criminals in Jail, his entire life may be spoiled. The
petitioner was ordered to be released on bail on his furnishing personal bond in
the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the
trial Court.
In MdGazi Khan's case,123 Bail application was moved by the petitioner
on behalf of his son, Md.Gazi Khan, who was arrested under section 20(b) 60(3)
NDPS Act for having found with him 106 Kgs of Ganja contained in 6 gunny
bags. The accused, Gazi Khan, was a juvenile aged about 14 years old and he was
pursuing his studies in a local school. It was submitted that the accused was
arrested under section 20(b) of NDPS Act and the offence so committed under
that section does not come under the purview of Section 37(b) of the said Act, and
as such the accused is entitled to be released on bail. On the other hand state
contended that under the NDSP Act there is no provision for asking relief as
juvenile.
The court ordered that the accused Md. Gazi Khan shall be released on
bail of Rs.10,000/- with one surety of the like amount to the satisfaction of the
learned Special Judge (NDPS) Manipur. It was further directed that accused, after
his release on bail, shall be put under the custody of his father, the petitioner who
shall produce the accused Md.Gazi Khan before the concerned Investigation
Officer as and when required.

MdAlimuddin v. State ofManipur 2001-(107)-Cr.LJ-l 140.


3VJ

la Mohd. Feroz @ Bhola v. State,124 it was held that the section 12 makes
it mandatory for a person to be released where such person is apparently a
r
juvenile, unless, of course, there are reasonable grounds for believing that the
release of such person 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. It was further held that the question of
bail was not a question of mercy insofar as the aforesaid provision was concerned.
It was mandatory and stipulates that such a person, who is apparently a juvenile,
shall be released on bail.
In Abhey Kumar Singh v. State of Jharkhand and Ors125 in this writ
application, the petitioner prayed for quashing the entire criminal prosecution
pending in the Court of Addl. Chief Judicial Magistrate, Deoghar and also for a
direction of release of the petitioner forthwith from the Jail custody on the ground
that the petitioner is a juvenile and he is in custody since 6-11-2000 along with
other criminals and the total period of detention i.e. 30 days in remand home
including three years eight months which is still continuing, is three years nine
months. The petitioner submitted that in spite of direction of the Court he was
detained in custody under the Juvenile Justice Act. The enquiry also could not be
concluded but the substance of accusation was explained on 16-9-2003. The
petitioner submitted that he had remained in custody for more than three years,
hence he cannot be sentenced. The entire criminal proceeding has become
infruetuous.
Considering the above fact and circumstances of the case, the petitioner
was released forthwith from custody without any bond or surety on the reasoning
that the inquiry proceeding under Juvenile Justice Act has to be concluded within
a period of three months from the date of receipt of a copy of this order, failing
which the Criminal Proceeding shall stood automatically quashed. It is well
settled that the Juvenile cannot be sentenced and the total period of sentence is
three years. In the present case the petitioner has already served the detention

124
2005 (3) JCC 1313
125
2004 CriLJ4533
304

period for more than three years eight months and is still in custody without any
special provisions in the custody under the Act.
In two decisions of the Supreme Court, namely, Rajinder Chandra v. State
of Chhattisgarh and Anr. and Pratap Singh v. State of Jharkhand and Anr.
the Court declared JJ (C&PC) Act, 2000 to be a beneficial legislation for the
benefit of the juvenile and the Act must be construed as such. In this line, when
Section 12 makes it mandatory for a juvenile, even if he is “apparently a juvenile”
to be released on bail, then this Court and all the courts dealing with such a
situation must give full meaning to the provisions of the said Section as also the
object of the Act. Bail has to be granted to a juvenile, notwithstanding anything
contained in the Code of Criminal Procedure, 1973 or any other law for the time
being in force which includes the NDPS Act also except for the conditions
mentioned in Section 12 itself which, if one examines the same, are also to
prevent any damage to the juvenile. The idea behind Section 12 being that the
juvenile must be released on bail unless releasing him on bail would be
detrimental to him or would entirely defeat the ends ofjustice.
In Rakesh Kumar @ Sittu v. State ofJharkhand revision application
was filed against the order of the 4th Additional District and Session Judge,
Palamau at Daltonganj in Criminal Appeal, affirming the order passed by
Additional Chief Judicial Magistrate, Palamau at Dalonganj, whereby and
whereunder they refused to enlarge the petitioner on bail, who was accused in
connection with a case registered under Section 307 of the Indian Penal code
on the plea that if the petitioner is released on bail he may form his own
association of criminal or will become associate of other criminal gangs. The
revision petitioner submitted that the person assigned by the appellate court
could not be a valid ground for refusing the prayer for bail. Allowing the
revision petition it was held :
“Provision of Section 12 of the Juvenile Justice (Care and

126
MANU/SC/0051/2002
127
JT 2005 (2) 271
. 128
2006 (2) JCR130(Jhr)
305

Protection of Children) Act, 2000 needs to be taken notice of


Where' grounds have been enunciated on which prayer of the
r

juvenile can be refused which are (i) the release is likely to bring
him into association with any known criminals (ii) or expose him
to moral physiological danger (iii) or that his release would defeat
the ends ofjustice. In the instant case there is nothing appears to be
on the record, which prompted the Additional Sessions Judge to
form an opinion that the petitioner if he is released on bail he may
form his own association of criminal or will become associate of
other criminal gangs and therefore the order passed by the Court
below as well as appellate Court do not seems to be justified.
Hence the order passed by both the Courts below was set aside.”
In Devesh v. The State (NCT ofDelhi)129, a criminal revision before Delhi
High Court decided on 12.5.2006, the revision petition was directed against the
order of the Additional Sessions Judge who in an appeal rejected the bail
application to the petitioner- juvenile on the ground that his release is likely to
bring him in the company of criminals. According to the Additional Sessions
Judge, this itself would defeat the purpose of releasing him on bail.
It was held that it is apparent from a reading of Section 12 that there must
be a reasonable ground for believing that the juvenile's release would bring him
into association with known' criminals. The Additional Sessions Judge has merely
conjectured that the release of the petitioner might bring him in contact with
criminals not 'known criminals', on the basis of an assumption that some of his
companions have not been arrested and those companions are criminals. This is
not the right approach to take while construing Section 12 of the JJ (C & ,PC) Act,
2000. When the expression used is 'any known criminal' then the Court should
give full meaning to that expression. Even as per the case of the prosecution,
neither did the juvenile commit the murder nor did he catch hold of the deceased
nor he was responsible for the injuries. The only injuries recorded in the

129
CRLRev. P.214/2006, Decided on :12.05.2006
306

postmortem are knife injuries. Even otherwise the petitioner would be entitled to
bail although more so as he is a juvenile.
Accordingly, the order rejecting bail was set aside and the petitioner was
directed to be released on the petitioner's father furnishing an affidavit to the fact
that he shall take proper care of his son and that he shall not permit his son to fall
into any kind of bad company. This in addition to the condition that petitioner
shall be released on bail on his furnishing a personal bond in the sum of
Rs. 10,000/- with one surety of the like amount to the satisfaction of the Juvenile
Justice Board.
In Ranjit Singh v. State of HP.130 the petitioner was arrested on 11th
September, 2004 for an offence punishable under Section 376 read with Section
511 of the Indian Penal Code and Section 3 of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitioner applied for
bail before the Juvenile Justice Board at Shimla. However, the Principal
Magistrate declined the bail on the grounds that release of the accused juvenile on
bail would defeat the ends of justice and also put him in physical and
psychological danger and that there would be a lot of resentment amongst the
people in the area which will have adverse psychological impact. Therefore this
appeal was filed.
The appeal was allowed. The Court below was directed to release the
petitioner forthwith on furnishing bonds in the amount of Rs.5,000/- with one
surety of the like amount to the satisfaction of the Principal Magistrate, Juvenile
Justice Board, Shimla, subject to the condition that neither the petitioner nor his
parents would influence the witness or otherwise interest with them.
Section 12 of the Act stipulates that a juvenile is entitled to release on bail
provided the release does not expose him to moral, physical or psychological
danger or his release may hot defeat the ends of justice. In reply, filed by the
prosecution, or in the police file, there is nothing to show that juvenile, if released
on bail, would be exposed to criminal or moral or physical or psychological

130
2005 CriLJ 972
danger nor it can be said that his release will defeat the ends of justice. The
Principal Magistrate, Juvenile Justice Board, therefore erred in staying that release
of juvenile would put him to moral, physical and psychological danger without
there being any material on record.
In Manmohan Singh v. State of Punjab131 this petition was filed by
juvenile Manmohan Singh, who was confined in Observation Home, for setting
aside the order passed by the Chief Judicial Magistrate/ Juvenile court, Ludhiana
vide which the application of the petitioner for release him on bail was declined
and the order of Additional Sessions Judge, Ludhiana vide which appeal against
the said order was dismissed. The Courts below declined the Bail to the petitioner
on the ground that firstly, there is apprehension that the release of the petitioner
on Bail would expose him to moral and physical danger as no elderly person is
available to look after him. Secondly, the petitioner at the time of occurrence was
armed with Kirpan and had caused injuries to the deceased as a result of which he
died. In these circumstances, the release of the petitioner on bail would likely to
. harm the trial as may pass coercion upon the prosecution witnesses. The petitioner
submitted that both the aforesaid reasons recorded by the Additional Sessions
Judge are unsustainable and on the basis of the same, the prayer of the petitioner
for release him on Bail cannot be rejected as it is Mandatory for the Juvenile
Court to release the juvenile on bail notwithstanding anything contained in the
Code of Criminal Procedure, 1973 or in any other law for the time being in force.
Petitioner further submitted that apprehension of the Courts below to the effect
that if the petitioner is released on Bail, he would expose himself to moral and
physical danger having no elderly person to look after him, is wholly without any
basis as the grandfather and maternal uncle of the petitioner are always available
at home to look after him. The respondent-State opposed the prayer made by the
petitioner by submitting that the petitioner was rightly declined the Bail keeping
in view the nature of crime he has committed and the fact that in case of his
release, there is apprehension of his being exposed to moral and physical danger

131
(2004) 136 PLR497
having no elderly person to look after him.
The Criminal Revision was allowed and the impugned orders passed by
the Chief Judicial Magistrate/ Juvenile Court, Ludhiana and Additional Sessions
Judge, Ludhiana respectively, were set aside and the petitioner was ordered to be
released on Bail subject to the satisfaction of CJM Ludhiana. The Court held that
the orders passed by the Courts below are not sustainable in the eyes of law.
It was observed that from the bare reading of the Section 12, its clear that
it is mandatory for the Juvenile Court to release a juvenile on Bail with or without
surety if such a juvenile is arrested or detained or appears or is brought before a
Juvenile Board in a Bailable or non-Bailable offence, notwithstanding anything
contained in the Code of Criminal Procedure. The only exception is that if their
are reasonable grounds for believing that the release of the juvenile 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, then he shall not be released on Bail. The reasonable grounds for believing
that his release is likely to bring 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, should be based upon some material/evidence available
on the record. It is not a matter of subjective satisfaction but while declining Bail
to the juvenile on the said ground, there must be objective assessment of the
reasonable grounds that the release of the juvenile is likely to bring him in
association with any known criminal or expose him to moral, physical or
psychological danger or that his release would defeat the ends of justice. In my
opinion, under the aforesaid Section, 1 the benefit of Bail cannot be denied to the
juvenile on the ground that he has committed murder by a sharp edged weapon by
inflicting injuries on the person of the deceased. There is only one exception as,
indicated above, but under the said exception also the release of the juvenile on
Bail can be denied if there is sufficient material on record which clearly indicate
that the release of the juvenile is likely to bring him into association with bad
company or that his release would defeat the ends ofjustice.
In the instant case, admittedly the petitioner is a juvenile. It is also
undisputed that the grandfather of the petitioner is available at home. In case the
' -

petitioner is released on Bail, he can be looked after by his grandfather and the
observation of the Courts below that the release of the petitioner would lead to
moral and physical danger having no elderly person to look after him, is a mere
apprehension based on no material/evidence. Merely because the petitioner is
alleged to have caused injuries to the deceased by Sharp edged weapon, he cannot
be denied the benefit of Bail under Section 12 of the Act, as the provisions of this
Section provide that every juvenile for whatever offence he is charged with shall
be released on bail except under the aforesaid one circumstance, which in my
opinion, is not existing in the instant case. Rather by declining the Bail to the
petitioner the very purpose of the Act will be defeated. Thus, the impugned orders
passed by both the Courts below are not sustainable in the eyes of law as they will
defeat the very purpose of the Act.
In Vijendra Kumar Mali Etc. v. State of UP.132 accused persons were
declared as juveniles by the court of C.J.M. and later on same fact was confirmed
by the Sessions Judge, Sonebhadra. However, both the court of C J.M. and the
Sessions Judge, Sonebhadra rejected the Bil applications of the accused persons.
Against this refusal, revision was filed before the Allahabad High Court. High
Court allowed the revision setting aside the order of the Sessions Judge and that
of the C.J.M., so far as it related to refusal of Bail. It was also directed that if die
Revisionists move application for bail, the court shall dispose it of keeping in
view the provisions contained in section 12 of the Juvenile Justice (Care and
Protection of Children) Act, 2000. This order was placed before the Sessions
Judge, Sonebhadra but he again refused Bail to the Revisionists by his order dated
10-2-2003. Being aggrieved by the said order, the present Revisions were filed.
Revision was allowed. Orders of Sessions Judge refusing Bail were set
aside and it was directed that the Revisionists should be admitted to Bail on their
. guardians filing a personal bond and two sureties in the like amount to the

132
2003-(l 09)-CRLJ-4619-ALL
310

satisfaction of the C.J.M. Sonebhadra. The Registrar General was directed to


place the record of this case along with the judgment before the Administrative
Judge of Sonebhadra for issuing necessary instructions to the concerned Sessions
Judge or to make such remarks in his Character Roll as deemed fit.
The court observed that the Sessions Judge, Sonebhadra has probably lost
sight of the provisions of the Act and ignored the directions issued by this Court
passed in the aforesaid Revisions. He has mentioned the ground of refusal of Bail
to be gravity of the offence, which is none of the grounds mentioned in section 12
of the Act. It appears from this order that the Sessions Judge, Sonebhadra was
bent upon to refuse the Bail without caring for the law on this point. Section 12 of
the Act provides that the juvenile offender shall be released on Bail but the
exception would be that he shall not be released if there appears 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 ofjustice.
This Court in a number ofjudgments has categorically held that Bail to the
juvenile can only be refused if anyone of the grounds existed. So far as ground of
gravity is concerned, it is not covered under the above provisions of the Act. If the
Bail application of the juvenile was to be considered under the provisions of the
Code of Criminal Procedure, there would have been absolutely no necessity for
the enactment of the aforesaid Act. The language of Section 12 of the Act itself
lays down that notwithstanding anything contained in the Code of Criminal
Procedure, 1973 or in any other law for the time being in force, the juvenile
accused shall be released. Not only this, the Parliament re-considered the entire
matter and repealed the old Act of 1986 by introduced the new Act No.56 of 2000,
raising the age from 16 to 18 years. This has been done keeping in view the
welfare of the child so that even committing an offence a child may not become a
hardened criminal but he may reform himself.
The order of the Sessions Judge nowhere shows that anyone of the
grounds for refusing Bail existed. Under these circumstances the refusal of the
Bail was not only unjustified but illegal and against the intention of the Act.
The Sessions Judge while exercising the powers of a Sessions Judge must
know that the orders of the Superior Court have got to be complied with and
while discharging his duties as such he should not be swayed away by his whims
but keep in mind the intention of the Legislature.
In Vikky alias Vikram Singh v. State of UP. and Ors.m juvenile Vicky
alias Vikram Singh was declared to be juvenile but refused the Bail on the ground
that the offence is of heinous nature and is exclusively triable by the Court of
Session. An appeal against the said order was preferred but the Sessions Judge
Kanpur Nagar, dismissed the appeal. The Revision was filed against the judgment
and order of Sessions Judge, Kanpur Nagar, in Allahabad High Court.
The Court held that Bail was dismissed without applying mind or caring
for the law. Section 12 of the Juvenile Justice (Care and Protection of Children)
Act 2000, is very clear on this point. According to Sub-section (1) of Section 12
any person, being juvenile, shall be released on Bail with or without surety.
However, for refusal of the Bail there are only three grounds-firstly if the release
is likely to bring him into the association with any known criminal. Secondly,
exposes him to moral, physical or psychological danger and thirdly if his release
would defeat the ends of justice. This Court has been repeatedly directing that if
the release is refused on these grounds the Court should record findings as to
whether any such ground exists or not. It is not that the mere quoting of few lines
from this Act, the Bail should be refused. The impugned order does not show any
such ground either in the order of the Chief Metropolitan Magistrate or in the
order of the Magistrate. The Magistrate in his order has refused the Bail firstly on
the ground that it is exclusively triable by the Court of Session and the offence
being of heinous nature, which is no ground for refusing Bail under/ Section 12 of
the Act. Appellate Court also summarily dismissed the appeal without properly
appreciating the law on this point and even without discussing the law. The
Revision was therefore allowed with direction that the Revisionist Vicky alias

m 2003 Cri LJ 3457


312

Vikram Singh shall be released on Bail on his guardian's furnishing a personal


bond and two sureties each in the like amount to the satisfaction of Chief
r

Metropolitan Magistrate Kanpur Nagar.


In Sanjay Kumar v. State of U.P,m accused moved an application before
the Additional C.J.M. (juvenile judge) for declaring him to be a juvenile. The said
application was rejected. Thereupon he filed an appeal before the Sessions Judge.
The Sessions Judge partly allowed the appeal declaring him to be a juvenile but
refused to grant Bail to him. Against the said order the present Revision has been
filed. The Revision was allowed. The revisionist Sanjay Kumar was directed to be
admitted to Bail on the terms and conditions and amount of sureties as deemed fit
by the concerned Court.
The court observed that the Sessions Judge has given first ground that
accused may repeat the offence, but it is no ground for refusing the Bail. The
Sessions Judge has further observed that on release there can be danger to his life.
No such evidence was before him to infer that release of accused would put his
life in danger. Of course the Bail application of the juvenile can be refused, if the
above grounds or any one of the grounds exists. The existence of such ground
should not mean the guess-work of the Court but it should be substantiated by
some evidence on the record. Considering this, the Revisionist, being juvenile, is
entitled to Bail.
In Dattatray GSankhe v. State of Maharashtra and Ors.135 the Sessions
Court had granted Bail to accused which was challenged by the applicant who
sought cancellation of bail on ground of suppression of material facts. The
applicant submitted that the Bail granted by the Sessions Court to the respondent
is liable to be cancelled, as firstly it has been obtained by suppressing material
facts. He further submitted that the Juvenile Court had released the respondent-
juvenile accused on temporary Bail. It was submitted that this fact was not
brought to the notice of the sessions court and, therefore, by virtue of suppression
of material facts, the sessions court had granted Bail to the juvenile accused. He

134
2003-(109)-CR. LJ-2284 ALL
135
2003 (4)MhL.J 15.
313

further submitted that the complainant is still in coma and has not yet recovered
and that "grave and heinous crime has been committed by the Juvenile accused.
Respondent- Juvenile, submitted that in view of the provisions of Section 12 of
the Juvenile Justice (Care and Protection of Children) Act, 2000, the Juvenile
Board had no other option but to release the juvenile on Bail, unless the
conditions which are mentioned in the said section are noticed by the board. He
further submitted that only if there is a reasonable ground made out by the
prosecution that the Juvenile is likely to be involved or exposed with known
criminals, the board could refuse to grant Bail.
The Court perused the application as also the orders passed by the sessions
court and the juvenile board. It held that “From the perusal of the section 12 of the
Act, it is clear that in case it is found that the juvenile is involved in any criminal
offence, the normal rule would be to grant Bail and the Board is empowered to
release the juvenile on Bail unless it comes to the conclusion that by releasing
such a person on Bail, he would come in contact with known criminals or that his
life is likely to be in danger. This particular provision is made to ensure that large
number of juvenile delinquents who do not have a regular place of residence or a
family or abode are not brought to the mercy of known criminals and are. as a
result exploited by these criminals for their own ends.” The Court found that in
the present case such an allegations has not been made either by the prosecution
or by the juvenile Board. The juvenile in the present case has a family. He is a
student who has appeared for 10th std. Exam, and his result is awaited. Secondly
no case is made out at this stage to suggest that any new grounds have been made
out for cancellation of Bail. It is not alleged that the juvenile has tampered with
the evidence or is likely to tamper with the evidence. The investigation is not yet
over. In these circumstances, it was held that no case is made out for cancellation
of Bail. Ad-interim order passed by this Court is, therefore, vacated and the
juvenile is directed to be released on Bail. However, the juvenile shall report to
the juvenile Board once in a week on every Saturday till the charge sheet is filed
and thereafter once in two weeks.
.514

In Mata (alias Manohar Singh) v. State of Rajasthan136 petitioner-


delinquent juvenile under Juvenile Justice Act moved an application for Bail
r
under Section 18 of the Juvenile Justice Act. Same was rejected by Juvenile Court
and in appeal by the Court of Session. Petitioner, therefore, approached Rajasthan
High Court. Before Rajasthan High Court, question was whether the Bail was
rightly declined to the petitioner?
The court noted that neither Juvenile Court nor Sessions Judge cared to
look into the provisions of section 18 before declining Bail to the petitioner.
Setting aside orders of these courts, the Rajasthan High Court released the
petitioner on Bail making following observations :
(i) As per Section 18, delinquent juvenile ordinarily has to be
released on Bail irrespective of the nature of the offence alleged to
have been committed unless it is shown that here appears
reasonable ground for believing that his release is likely to bring
him under the influence of any criminal or expose him to moral
danger or that his release would defeat the ends ofjustice.
(ii) Other provisions of the Juvenile Justice Act clearly show that
extraordinary procedure has been prescribed for Bails, inquiry and
punishment regarding delinquent juveniles. The trial of a
delinquent juvenile under the Code of Criminal Procedure is
prohibited. The delinquent juvenile has to be dealt with under the
provisions of the Act which are curative and reformative rather
than punitive. Section 22 of the Act expressly provides that no
delinquent juvenile shall be sentenced to death or imprisonment or
committed to prison in default of payment of fine or in default of
furnishing security. Thus, the delinquent children have been given
a special status as a class to be dealt with as per the provisions of
the Act which are intended to reform them and to save them from
becoming hardened criminals.

136
1996 CrLLJ. 743.
.31J

(iii) Section 18 of the Juvenile Justice Act clearly lays down that
Bail to a delinquent child is a rule and mandate of the Act
irrespective of the nature and seriousness of the offence committed
by him. The section also provides the grounds and circumstances
when Bail can be declined to a juvenile delinquent. Those grounds
are that release is likely to bring him into association with any
known criminal or expose him to moral danger or that his release
would defeat the ends of justice. Further, there should be material
on record to show that any of the above circumstances exists to
decline Bail.
(iv) The Juvenile Justice Act is a beneficial and social oriented
legislation which should be given full effect by all concerned
whenever a matter relating to a delinquent child comes before
them....”
In Master Niku Chaubey v. State,137 it was observed by the Court that the
nature of the offence is not one of the conditions on which Bail can be granted or
refused to the juvenile. It was held that Bail in respect of the juvenile has to be
considered purely under the parameters of Section 12 of the said Act which
requires Bail to be granted mandatorily unless the court feels that the release of
the juvenile is likely to bring him into association of any known criminal or
expose him to moral, physical or psychological danger or that release would
defeat the ends ofjustice.
In Prakash vs. State of Rajasthan the petitioner- juvenile was facing
trial for the offence under Section 376, IPC. He moved an application under
Section 12 of the Act seeking bail, which came to be dismissed on the ground that
he is an accused of a case of rape and is having the rural background and,
therefore, he is likely to expose to the moral, physical and psychological danger.
Against the order of the JJB, the juvenile delinquent fled an appeal which came to
be dismissed by the Appellate Court on the ground of gravity of gravity of the

. »7 2006(2) JCC 720


138
RLW 2006(1) Raj 538
316

offence of rape. Against this order appeal was filed in the High Court. The
question was- when can a juvenile be denied bail under section 12 of the Juvenile
Justice Act, 2000?
The Order of the JJB, Jodhpur as well as the order of the Appellate Court
was set aside and court directed juvenile to be released on bail, provided his
guardian furnishes a personal bond in the sum of Rs. 10,000/- with a surety in the
like amount to the satisfaction of the Principal Magistrate, JJ Board, Jodhpur with
the stipulation that on all the subsequent dates of hearing, he shall produce the
delinquent juvenile before the said Board or any other Court during pendency of
the inquiry and his guardian: shall keep proper look-after of the juvenile
delinquent and keep him away from the company of known criminals.
In Jaif Ahmed Sheikh v. State of Rajasthan the petitioner was arrested
for having found carrying 1,118 Kg. Of “Chura of Doda Post” in his own Truck.
As per the arrest memo he was 19 years of age on the date of arrest. However, he
produced birth certificate disclosing that he was below 18 years of age on the date
of the incident and as such he was entitled to be released under Section 12 of the
Act of 2000 being a juvenile. It was contended that the Act of 2000 has an
overriding effect on the provisions of Section 37 of the NDPS Act. In present
revision under Section 53 of the Juvenile Justice (Care and Protection of
Children) Act, 2000 the petitioner challenged the order of the Special Judge,
NDPS Cases, Bhilwara whereby he refused to release the petitioner on bail under
the provisions of Section 12 of the Act of2000.
The revision petition was dismissed holding that the Act of 2000 has been
enacted with an object to consolidate and amend the law of juveniles in conflict
with the law and children in need of care and protection, by providing for proper
care, protection and treatment by catering to their development needs, and by
adopting a child-friendly approach on the adjudication and deposition of matters
to the best interest of the children and or their ultimate rehabilitation through
various institutions established under the enactment. Section 12 of the Act of2000

139
2004~( 110)-CRLJ-3272 RAJ
leaves no option with the Court except to enlarge the accused on bail or any
offence .and in any circumstance, the moment accused is capable to manage and
show that he was below 18 years of age at the time of the offence. A bare reading
of the provisions shows, it cannot be applied mechanically.
Where an accused alleged to have been engaged in smuggling activity, the
possibility of his being joining the gang and repeating the activity if released on
bal cannot be ruled out. The release of an accused of an offence of NDPS Act may
be of below 18 years of age is bound to defeat the ends of justice. Thus, no
interference is warranted with the order of the Special Judge.
In Arvind v. State,140 the Court had observed that the gravity of the
offence is not a criteria or impediment for the release of the juvenile on Bail.
In Master Abhishek (Minor) v. State,141 exact meaning of the expression ‘defeat
the ends of justice’ has been explained. In this case it has been held in that
decision that the factors for determining as to what amounts to defeat of the ends
ofjustice in the context of Section 12 of the said Act have also to be located in the
context of the purpose of the Act. In the said decision, the preamble was quoted
which clearly states that the Act is one to consolidate and amend the law relating
to juveniles in conflict with law and children in need of care and protection, 'by
providing for proper care, protection and treatment by catering to developmental
needs, and by adopting a child-friendly approach in the adjudication and
disposition of matters in the best interest of children and for their ultimate
rehabilitation through various institutions established under this enactment. The
court observed that while dealing with an application for bail, these factors have
to be kept in mind. The court concluded that, therefore, if there is a factor which
requires the court to keep the child in custody for meeting the developmental
needs of the child or for his rehabilitation, or for his care and protection, then only
can it be said that his release would defeat the ends ofjustice.
In case of Gopal Sharma v. State ofRajasthan}41 in the intervening night

1999 (2)ICC Delhi311


2005 VI AD Delhi 18
RLW 2004(1) Raj 450
318

of 02.12.2002 and 03.12.2002 murder of a foreign lady tourist namely Lee Ching
took place in a hotel in the city of Udaipur. The petitioner who was a guide by
profession was also staying with the deceased. On 2.12.2002 they were seen
retiring to room No. 301 alter taking dinner. However, in the morning of
3.12.2002 till 10:00 A.M. when the room was not opened and there was no
response from inside, it was opened by a duplicate key. The dead body of the
foreign tourist was found lying in the room. The petitioner was found missing.
The F.I.R. was lodged at Police Station, Ghantaghar. After usual investigation
Police laid charge-sheet against the petitioner for offence under Section 302 I.P.C.
As per the school certificate, the petitioner-applicant was bom on 29.061985, as
such on 1he date of the incident he was 17 years and 6 months old. Thus, he was
held to be a juvenile or child within the meaning of Sub-clause (k) of Section 2 of
the Juvenile Justice (Care and Protection of Children) Act, 2000. The Sessions
Judge sent the accused for trial before the Principal Magistrate, Children Court,
Udaipur. The applicant tiled application before the Juvenile Court for release on
bail. The Magistrate held that the release of the accused would defeat the ends of
justice and as such rejected the bail application.
The petitioner preferred an appeal against the said order to the court of
Sessions Judge under Section 52 of the Act. The Sessions Judge rejected the
application. Hence this revision was filed to the High Court. Petitioner contended
that the gravity of offence cannot be a ground to reject the bail application.
The Court held that the finding of fact recorded by both the courts below
does not call for interference by this court in exercise of the revisional powers.
Consequently, the revision petition was dismissed. The Court observed that in the
instant case the bail application has been refused not only because the applicant is
facing trial on a serious charge of murder but also the special circumstance that
his act is prejudicial to image of the country in the world, adversely affecting the
tourism business. The tourists move in the country on the guidance and faith of
guide. A betrayal to foreign tourist is betrayal to the country, projecting a bad
image in the eye of the world. Thus, the view taken by both the courts below
cannot be said to be erroneous in considering that the case of the petitioner falls in
the exceptional category provided under Section 12 of the Act.
In Kamil v. State of Uttar Pradesh,143 it was observed that: "A juvenile in
conflict with law may be released on bail with or without surety but such release
shall not be possible if there appear to be reasonable grounds for believing that
such release is likely to bring him into association with any known criminal or
expose him to moral, physical or psychological, danger or his release would
defeat the ends of justice. Welfare of the juvenile or child is the need of the day
and the provisions contemplate a judicial officer with more sensitive approach
oriented outlook."
In Antaryami Patra v. State of Orissa ,144 the petitioner was refused the
bail. He was involved in a case under the Narcotic Drugs and Psychotropic
Substances Act (NDPS Act). The question was whether in view of Section 18 of
the Juvenile Justice Act, 1986 (JJ Act), a "juvenile" as defined in Section 2(h) of
the Act is entitled to be released on bail even if he is accused of committing an
offence under the NDPS Act notwithstanding the provisions of Section 37 of the
said Act. The petitioner contended that die expression "any other law for the time
being in force" in Section 18(1) of the JJ Act would include the-provisions of
Section 37 of the
NDPS Act and, therefore, the non-obstinate clause in Section 18(1) of the JJ Act,
would exclude the application of Section 37 of the NDPS Act, where a person
accused of a non-bailable offence is arrested and is apparently a juvenile and the
said person should be released on bail in accordance with the legislative mandate
contained in Section 18 of the J. J. Act, 1986. It was further contended that the JJ
Act as well as the NDPS Act both being Central Acts and the JJ Act being a latter
Act by rules of interpretation, the latter Act should prevail and, therefore, the
embargo contained in Section 37 of the NDPS Act with regard to the release on
bail of an accused involved in commission of an offence under the NDPS Act will
not be attracted in case of a juvenile. The Government Advocate, on the other

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1993CriLJ1908
320

hand, contended that the NDPS Act being a special statute and having been
enacted'to face the problem of transit traffic in illicit drugs and stringent
provisions having been' made therein, the same should override the general
provisions contained in the J.J. Act, 1986. He further contended that at any rate
Section 37 of the NDPS Act having come into force with effect from 29-5-1989,
later than the JJ Act, the said provision contained in Section 37 should override
the provision of Section 18 of the JJ Act and, therefore, the accused even though a
juvenile, if is found to be involved in commission of a non bailable of offence
under the NDPS Act, he cannot be released on bail until and unless the provisions
of Section 37 of the said Act are complied with.
The order of the Special Judge rejecting the petitioners application for
bail, was upheld and the State was directed that juvenile should not be kept in the
same Cell with hardened criminals but should be kept in a separate place so that
. he would not come in association with hardened criminals which would serve the
objective and purpose of Section 18(2) of the J.J. Aetl986.
The court considered the facts that:
1. While the law-makers enacted a special law to deal with juvenile delinquents in
accordance with the Directive Principles and in accordance with the observation
of the Apex Court in Sheela Barse’s case, they faced with another problem which
rocked not only this country but the entire world, namely, die problem of drug
trafficking. There had been international conventions on narcotic drugs and
psychotropic substances and it was the unanimous view that law should be made
with deterrent measures to check the offence of drug trafficking. Lawmakers and
administrators found many deficiencies in the existing laws dealing with drug
trafficking and the penalties provided therein were not sufficiently deterrent to
meet the challenge of well-organised gangs of smugglers. It was felt that there is
an urgent need for the enactment of a comprehensive legislation on narcotic drugs
and psychotropic substances which should contain provisions for exercising
effective control over the psychotropic substances and the law should make
provision for the implementation of International Convention relating to narcotic
drugs and psychotropic substances to which India was also a party. As our country
was facing a great problem of trafficking in illicit drugs and such trafficking has
r
caused problems of abuse and addiction, the Parliament went ahead in legislating
the NDPS Act which came into force with effect from 14th of November 1985.
. Obviously, therefore, the NDPS Act is a prior legislation than the JJ Act. But
notwithstanding the stringent provisions in the said NDPS Act of 1985, as it was
not possible to tackle the problem and the accused persons were being released on
bail, a Cabinet Sub-Committee was constituted for recommending certain
amendments to the existing Law to combat drug traffic and to prevent drug abuse.
In the light of the recommendations, of the Cabinet Sub- Committee, amendments
were brought into the NDPS Act of 1985 by Central Act 2 of 1989 and Section 37
of the NDPS Act dealing, with the question of bail of a person accused of an
offence under the NDPS Act, which is punishable for a term of imprisonment of
five years or more, was engrafted into the statute book. The sole object of the
aforesaid provision, is that no person should be released on bail when accused of
an offence punishable with a term of imprisonment of live years or more under
the NDPS Act, unless and until the conditions provided therein (Section 37) are
satisfied. It is no doubt a rather stringent measure, but has been, engrafted into the
statute book for the larger interest of the society.
2. Thus on the one hand the JJ Act is a reformative measure to deal with the
juvenile delinquents so that they will not become hardened criminals by
remaining inside jail, whereas the NDPS Act is a deterrent measure to deal with
the drag trafficking offences and by amendment, stringent measures have been
taken as an attempt to curb the drug trafficking which has become a menace and
social evil and which has been found to be dangerously affecting the backbone of
the country.
3. Section 18 of the JJ Act made a general provision with regard to the right of a
juvenile delinquent to be released on bail irrespective of the offence committed by
him, but the NDPS. Act is a special provision and in that a special statute a further
special provision has been made with regard to the pre-conditions to be satisfied
\
322

for an accused being released on bail. Therefore the said special provision of the
special^statute, namely, Section 37 of the NDPS Act, would override Section 18 of
the JJ Act and, therefore, even in case of a juvenile delinquent involved in
commission of an offence under NDPS Act, no bail can be granted until and
unless the provisions of Section 37 of the NDPS Act are complied with.
4. Even under Section 18 of the JJ Act, an accused shall not be released on bail if
there appeared reasonable grounds for believing that the release is likely to bring
him into association with any known criminals or expose him to moral danger or
that his release would defeat the ends of justice. Release of an accused involved
in commission of an offence under the NDPS Act would defeat the ends of justice
and the drug traffickers would pursue their objective of drug trafficking through
such juvenile delinquents. It would not be appropriate to release a juvenile
delinquent being involved in commission of an offence under the NDPS Act as
that would defeat the ends of justice. Thus judged from any angle, the petitioner
is not entitled to be released on bail.
In Vishal Dubey (Minor) son of Ram Prakash Dubay (In Observation
Home Jail) v. State ofU.P.,U5 a report was also called from the District Probation
Officer regarding revisiorlist’s antecedents etc. in which he stated that juvenile
Vishal Dubey was residing with his father Ram Prakash Dubey at Agra who was
employed as Reader in the Consolidation department, Mathura. He was a student
of B.Sc. in R.B.S. College and upon inquiries the neighbours told that Vishal
Dubey was not of criminal nature nor he remained in the company of boys of
criminal nature. They also told that he had been earlier detained in a criminal case
but he had been hailed out and the police had again detained him in this criminal
case. It was also stated that the father of Vishal Dubey assured the Probation
Officer that if Vishal Dubey is released on bail, he would be sent to some other
place out of Agra for completing his studies. The District Probation Officer
concluded in his report that taking into consideration the above facts, if he is
released on bail, it shall not have any adverse effect on the interest ofjustice. The

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MANU UP 0509 2006
323

revisionist was a juvenile on the date of the incident and there was no dispute on
this point. The bail to a juvenile can be refused only on three grounds as
mentioned in Sectionl2 of Juvenile Justice (Care and Protection of Children) Act.
The report of the District Probation Officer on all those points is in favour of the
revisionist. It was further been stated by the Probation Officer that upon inquiries
the neighbours of the revisionist told him that the revisionist was not of criminal
nature nor he remained in the company of criminals though he had been arrested
by the police in connection with some cases.
The revisionist, who was juvenile on the date of the incident, was bailed
out and the orders of courts rejecting his bail applications was declared wrong.
In Ravi-Ul-Islam State (NCT) The High Court Of Delhi,146 the revision
petition directed against the order of the Additional Sessions Judge whereby the
petitioner's appeal against the order dated 27.10.2005 passed by the Juvenile
Justice Board, Delhi was dismissed. A charge-sheet under Section 20 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 was filed against the
petitioner for being found in possession of 1.820 kgs of Charas. The petitioner
moved an application for transfer of the proceedings to the Juvenile Justice Board
inasmuch as the petitioner claimed to be a Juvenile. That application was
dismissed by the Additional Sessions Judge, New Delhi by an order dated
05.02.2005. The petitioner, being aggrieved by the said order, filed a Criminal
Revision Petition in the High Court. High Court allowed the order and the entire
matter was remanded to be dealt with in accordance with law. Thereafter, the
petitioner moved an application for bail before the Juvenile Justice Board which
was dismissed by the said Board. Being aggrieved by this order, the petitioner
preferred an appeal before the Sessions Court. The same was dismissed. The
petitioner therefore again approached the High Court and pointed out that the
grant of bail under Section 12 of the said Act is mandatory unless the conditions
requiring the court not to grant bail specified in the Section itself are satisfied. He
pointed out that in the impugned order, apart from a simple statement that the

146
Crl. Rev P. No. 896/2005, Decided On 05.05.2006
324

release of the petitioner would defeat the ends of justice; there is nothing to
substantiate or to back this finding. The petitioner1 submitted that Social
r

Investigation Report does not disclose any fact which could lead one to the
conclusion that releasing the petitioner, who is a Juvenile, would result in the
defeat of ends ofjustice.
The high court noted that the Social Investigation Report is in favour of
the Juvenile being released. The Report reveals that the family consists of the
father, mother and elder brother of the Juvenile and they are all earning members
and they altogether earn about Rs. 10,500/- per month. It is also pointed out that
prior to the petitioners arrest, he was doing embroidery work and that the family
is socially recognised in the locality and the community. Although the
delinquency record of the family members shows that the father and elder brother
of the Juvenile had another case registered against them wider Sections
308/328/34IPC, they have been acquitted. The report also reveals that the parents
of the Juvenile are "very much concerned" about his welfare and that all the other
family members, including the elder brother would take full responsibility of the
Juvenile in future. It is noted that the juvenile's habits are that he plays cricket,
watches television some times and no bad habit was indicated. The report clearly
states that no criminal traits have been reported in his personality during the
course of interview. Even the neighbours, who have been interviewed, have given
a satisfactory report about the behaviour and conduct of the Juvenile. Under the
heading "Analysis of the case giving an idea", it -has been indicated that the
Juvenile denies the charges of the present case and states that he has been falsely
implicated in the case. It is also indicated that the Juvenile has promised to lead a
law abiding citizen's life and the parents have also promised to take proper care of
the Juvenile in future and also to take suitable steps to counsel and guide him.
It was held that looking at the Social Investigation Report, it is difficult to
come to the conclusion that the release of the Juvenile would bring him into
association of any known criminal or expose him to any physical or moral danger
or his release would defeat the ends ofjustice. Accordingly, in view of the specific
provisions of Section! 2of the said Act, the petitioner would be clearly entitled to
be released on bail.
-

a) a reasonable ground for believing that the release is likely to bring the juvenile
into association with any known criminal;
b) his release is likely to expose him to any moral, physical or psychological
danger; and
c) his release would defeat the ends ofjustice.
The Additional Sessions Judge refused to grant bail to the petitioner
invoking the third exception, i.e., that if the juvenile is released, it would defeat
the ends of justice. The reasons for arriving at this conclusion are entirely
different from the factors which require to be considered. The question of the ends
of justice being defeated has to be considered in the context of die welfare of the
juvenile, whereas what the Additional Sessions Judge has done is that, according
to him, the ends ofjustice would be defeated because the trial is yet to commence;
the cases against co-accused are pending in other courts; release of the juvenile
would affect the trial in the main case. None of these are factors which have to be
taken into account when a decision is required as to whether the release of the
juvenile would defeat the ends of justice or not. Apart from this, nothing else has
been pointed out which would indicate that the release of the petitioner would
result in a defeat of the ends ofjustice.
In case of T. Gurudeo v. The State (NCT of Delhi),147 father of juvenile T.
Gurudeo, sought grant of bail to the juvenile, T. Gurudeo who was arrested for
attempt to murder one child called Abhishek. There were allegations that the
juvenile had sodomised two children called Abhay & Abhishek and he became
violent when there were protest from the child victim. The trial court obtained the
social investigation report. As per the report the father of the juvenile is a Central
Government employee working as LDC in the Income Tax Department. No
member of the family had any record of delinquency. The father of the juvenile
claimed to have been taking care of the juvenile and wanted to take responsibility

2005 (79) DRJ 552

\
326

for the juvenile in future. The mental condition of the juvenile was found to be
normal.'The juvenile is a school drop-out. Some neighbours reported to the
r
Investigator that the juvenile was in bad company. As to how the delinquency
developed is described in this report. He is said to have had a perverted mind after
being dropped out from the school. He had been watching the TV excessively
particularly the adult shows. He used younger boys of the locality for fulfilling his
sexual fantasies. The younger children made demands on him and occasionally
threatened to report his activities to his parents, Being fed up with the continuous
demands of the younger boys, namely, Abhay and Abhishek, he took the victim to
park and assaulted him with one of his friends. The court of Magistrate as well as
that of Sessions which denied bail to juvenile laid much importance on the
narration of the process how the delinquency developed.
The High Court allowed the petition and directed that the juvenile in
question be released on bail on the bond of Rs.5,000/- with one surety in the like
amount. The court observed that every juvenile has some background for
indulging into delinquent activity. Section 12 of the Juvenile Act requires a
juvenile to be released on bail in all cases except in those where there are grounds
to believe that the release was likely to bring him into association with any known
criminal or expose him to moral, physical or psychological danger. It appears that
continuous exposure to the adult programmes on the TV, some of which are
known to be obscene and sensuous has led the juvenile to develop sexual
fantacies which has led to this offence. The report of the social investigation says
that the TV of the juvenile's family went out of order when he started going to the
neighbours horse to watch the TV. It appears that the TV was not repaired which
led the juvenile to look to other houses for his entertainment. At the time of
argument it was submitted that the father of the juvenile has shifted his residence
to a new locality and, therefore, the juvenile may now no more be having access
to his co-accused who helped him in the commission of the offence under section
307 IPC. The bad company that he may have kept is also gone with the shifting
of residence. There is no fear of the juvenile being associated with any known
327

criminals. What he did in the past and which is not existing in the present should
not be ground to believe that if released on bail the juvenile will be exposed to
moral, physical and psychological danger. It can be appreciated that the father of
the juvenile who has filed bail application has undertaken to take full
responsibility for the juvenile. Therefore, if the juvenile is released on bail he will
not be exposed to moral, physical or psychological danger. The father is a
responsible Government servant. It can be expected that he may keep up his
words and take care of the juvenile in all respects.
In Shashi Kumar Saini v. The State,148 the petitioner was a juvenile within
the meaning of the Juvenile Justice (Care and Protection of Children) Act, 2000.
He was apprehended for the alleged recovery of 9 kilograms and 100 grams of
ganja from his possession. He was denied bail by the Juvenile Justice Board (JJB)
upon only one circumstance that he had been instigated into the alleged offence
by an adult person by the name of Suresh and if he was released on bail there was
every likelihood that he would be exposed to moral or psychological danger. In
appeal by the petitioner against denial of bail to him, the Additional Sessions
. Judge examined the case and after going through the provisions of Section 12 of
the Juvenile Justice Act, 2000 upheld the opinion of the JJB that if the petitioner
was released on bail, there was every likelihood that he might be exposed to
moral or psychological danger. In this appeal before the Delhi High Court, the
petitioner submitted that he is entitled to bail in terms of Section 12 of the
Juvenile Justice Act, 2000 and even otherwise the alleged recovery is less than
half of the commercial quantity specified and accordingly the rigours of Section
37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 would not be
attracted.
The High Court examined the Social Investigation Report submitted to the JJB by
the Probation Officer. It found that "there are several phrases which pertain to the
present petitioner which read as under:-
Normal religious feeling; no delinquency regarding members of family; parents

148
120(2005) DLT313
328

have normal affection and strong cohesive feeling; protective and over confidence
was observed on the part of juvenile’s behaviour; normal, matured, sincere;
creative and extrovert traits. The only observation that possibly went against the
petitioner was to the following effect: “He added that he was instigated by Suresh
who had been (sic) escaped/left Bus at Ghaziabad (UP.) "The High Court found
that the recommendation of the Probation Officer was that the petitioner needed
strict supervision and follow-up.
The High Court held that "Reading this report, it does appear that the
petitioner had been misled by the said Suresh who is no longer in contact with the
petitioner or his family. Furthermore, there is no indication in the social
investigation report that if the petitioner is released such release would be likely
to bring him into association of known criminals or expose him to moral, physical
or psychological danger or his release would defeat the ends of justice. The
exception carved out for not releasing a juvenile on bail under Section 12 of the
Juvenile Justice Act, 2000 is not made out in the present case. Therefore, the
mandatory provision of Section 12 has to be followed and the petitioner is
required to be released on bail. The petitioner had submitted that his parents are
ready to undertake that they shall take full care and keep a strict vigil over the
petitioner, once he is released on bail. Affidavits to this effect shall be filed within
four days..."
The High Court therefore directed the petitioner to be released on bail
upon the mother of the petitioner furnishing a personal bond in the sum of
Rs.5,000/- with one surety of the like amount to the satisfaction of the concerned
court.
In Sandeep Kumar v. State149, the petition sought bail for a juvenile who
was in observation home since 29.10.2003. The juvenile was arrested by Police
Station Alipur on 29.10.2003 for an alleged offence under Section 376/201/34 of
the Indian Penal Code. The FIR in this case was lodged by the mother of the
victim. The unfortunate victim was only six years old at the time of commission

149
119 (2005)DLT 398
of offence. On 29.10.2003 at 6.30 p.m. the victim came to her mother with tears
in her eyes and with blood on her clothes which were wet and told her that
Sandeep (die petitioner) took her to his house and committed ganda kam with her.
The child also reported that the mother of the petitioner first took off her clothes
washed them and sent her back in those wet clothes. The Juvenile Justice Board
declined bail to him. So did the court of sessions when approached in the
revisional jurisdiction. The Juvenile Justice Board in its order dated 3.6.2004
observed that instances of sexual offences on minor girls were on the rise and that
in this- case although the accused was a juvenile the victim was also of a very
tender age. The Board took into consideration the report of the probation officer
but ignored the advice of the probation officer on the point as to whether the
petitioner deserves institutionalisation. The Additional Sessions Judge in its order
found that if the juvenile was admitted to bail, the society will be in moral and
physical danger as the victim was very tender in age.
.The High Court agreed with the conclusions drawn by the Additional
Sessions Judge as well as the Juvenile Justice Board. It observed that "Section 12
of the Juvenile Justice (Car and Protection of Children) Act, 2000 enumerates
three grounds when a bail to the juvenile can be declined viz if there appears
reasonable grounds for believing that:
1. The release is likely to bring the juvenile into association with any known
criminal.
2. Expose him to moral and physical or psychological danger.
3. His release would defeat the ends ofjustice.
In order to examine whether any of the three exceptions is present in the
case a social investigation report was called for by the Juvenile Justice Board. The
important parts of the social Investigation report are as under:
1. The social and economic condition of the family is satisfactory.
2. The mother of the juvenile is concerned about the future of the juvenile.
3. The companions of the juvenile are in the same locality. _
4. The juvenile was not very keen in his studies.
330

5. The juvenile worked as a labourer for about two months and earned Rs.80/- per
day. --
6. The neighbours gave a favourable report about the behaviour of the juvenile.
7. The mother of the juvenile has full control over the juvenile.
8. The cause of delinquency is lack of proper guidance.
9. The juvenile says that he felt the genitals of the girl with his hunger which
caused bleeding.
The Court held that "It is clear from the above point that the social
investigation report is self contradictory. The social and economic condition of the
family cannot be said to be satisfactory, if the family sends the child, below
sixteen years of age, to work as daily wager. It cannot be said that the mother has
any control over the juvenile as the juvenile has committed an act depicting a
criminal tendency. It cannot be said to be an act done in a sudden spurt of anger.
The juvenile took the child to his house and committed rape showing clear
criminal tendencies in him. The mother certainly is not concerned with .the
welfare of the child who instead of insisting that the child goes to school sends
him out to work. In this situation if the juvenile offender is released from the
observation home and sent back to the same socio-economic atmosphere, he will
be exposed to moral and psychological dangers. Further the risk of juvenile
committing such a offence in future is also a likelihood because victims of sexual
offences of such tender age are often not even able to bring the offence to the
notice of the elders. Hence the Court held that it would not be in the interest of
justice to release juvenile on bail. The prayer for bail, therefore, was declined.
The Court further observed from the record of the Juvenile Justice Board
that the prosecution has cited fifteen witnesses but in the last one year, since the
commencement of the trial only six have been examined. The Juvenile Justice
Board was therefore directed to examine the remaining witnesses within a period
of two months and make every endeavour to dispose of the matter within one
month of completion of prosecution evidence.
In case of Kishan Kumar@JaiIer v. The State (NCT of Delhi),150 the bail
for juvenile petitioner was sought in this appeal before the High Court. It was
submitted that by virtue of Section 12 of the Juvenile Justice (Care and Protection
of Children) Act, 2000, the petitioner would be entitled to be released on bail and
the exceptions provided in Section 12 to the effect that there exists 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, are also not attracted. Reliance
was placed on the Social Investigation Report submitted to the Juvenile Justice
Board, Kingsway Camp, Delhi by the Chief Probation Officer, Sewa Kuteer
Camp, Kingsway Camp. The recommendation regarding treatment of the Juvenile
in that Report reads as under:
Juvenile is 16 years old and he is first offender. His family members are
much worried about the possible punishment. Neighbourerd gave the satisfactory
report about the conduct and behaviors of the Juvenile. His father and uncle gave
assurance that e will take care and vigil over of the Juvenile in future. In view of
all personal traits of the Juvenile, the satisfactory report of the neighborhood the
strong ties of the family members with each other and his resent occupation
agriculture at his active place village Basgaon, Distr. Gorakhpur (UP).
Institutionalization at this stage does not yield fruitful results. He may be given
chance.
The State opposed the grant of bail by saying that the Juvenile is better of
not being released as indicated by the order of the Juvenile Justice Board dated
17.01.2005 The State further submitted that the bail application was also rejected
by the Additional Sessions Judge on 01.02.2005 on the ground that the case was
pending before the Juvenile Justice Board and one material witness still remains
to be examined. However, the counsel for the State submitted that when the
Juvenile Justice Board considered the grant of bail-to the present petitioner, the
only material before it was the said Social Investigation report. Decision: The

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MANU/DE/0248/2005
332

Court directed' that the petitioner should be released on bail on furnishing a


personal bond in the sum of Rs.5000/- with one surety of the like amount to the
satisfaction of the Juvenile Justice Board. The father as well as the uncle who had
indicated in the Social Investigation Report that they are very much interested in
the welfare of the petitioner were directed to look after him in every possible way,
shall tile affidavits to this effect.
Upon going through the report, it does not appear that there was any
indication that if the Juvenile is released on bail, 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. In this
view of the matter, the exceptions carved out in Section 12 of the said Act are not
attracted and that being the case, in terms of the said Section, the petitioner has to
be released on bail.
Bail and not jail is a rule which is provided under Juvenile Justice (Care
and Protection of Children) Act, 2000. However, on the basis of particular facts of
a case the provisions have been applied differently resulting into different judicial
opinions. The juvenile, however, has been held to be always entitled to bail except
where the denial of bail to him would be in juveniles own interest. The Courts
have expressed the view that for denying bail there has to be a reasonable ground
that the juvenile's release would bring him into association with known criminals
or expose him to moral psychological danger or his release would defeat the ends
of justice. This reasonable ground for believing should be material and
substantive one and not flimsily or hypothetical one. As observed above, a
juvenile cannot be refused bail on the ground of seriousness and gravity of
offence.
5.2.5 Final Disposition of the Juvenile
In Kakoo v. State of Kakoo, aged 13 years, was convicted for
committing rape on a child of two years and was sentenced to four years' rigorous
imprisonment. His conviction was upheld by the High Court of Himachal

151
(1976) 2 SCC 21
Pradesh. Reference was made to the Supreme Court contending that if the main
object of punishment is to reform the prisoner and to reclaim him to society, his
prolonged detention in the company of hardened criminals would be subversive of
that object. Further it was stressed that the best way of reforming child delinquent
is to put him back under the supervision of his father subject to the execution of a
bond by the latter for his son's good behaviour for a certain period. In the
alternative, it was urged, that the sentence be reduced to the imprisonment already
undergone, with the imposition, if at all, of a little fine. Reference has also been
made to Sections 82 and 83 of the Penal Code to bring out the point that in the
matter of crime and punishment, a child offender is not to be treated in the same
manner as a mature adult. The State, however, stoutly opposed any reduction in
the sentence. Stress has been laid on the grisly manner in which the crime was
committed.
It was held that the ends of justice will be served by reducing the sentence
of the appellant to one year's rigorous imprisonment and a fine of Rs.2000 and in
default of payment of fine, to suffer six months' further rigorous imprisonment.
The appellant shall be detained separately from adult prisoners. He should
preferably be detained in a reformatory school, if any, for the said period. The
fine, if realised, shall be paid as compensation to Shrimati Parmeshwari Devi, the
mother of the victim baby.
It was observed that while the sordid features of the case, including the
sadistic manner in which the crime was committed by their instinctive reaction
tend to steel the heart of law for a sterner sentence, we cannot overlook the stark
. fact that at the time of commission of offence, the appellant was hardly 13 years
of age. An inordinately long prison term is sure to turn him into an obdurate
criminal. In the case of child offenders, current penological trends command a
more humanitarian approach. Under the Penal Code, an infant under seven is
conclusively presumed to be incapable of committing crime. At this age he is not
endowed with any discretion to distinguish right from wrong. Even a child
between seven and twelve who may not have attained sufficient maturity of
understanding to entertain a criminal intent i.e. Doli incapax is presumed to be
incapable of committing an offence. In several States of India enactments have
been passed to treat juvenile offenders or child delinquents differently in the
matter of crime and punishment. We are told that there is no such enactment in
force in Himachal Pradesh. It was found that there was a need for reformatory
approach in awarding punishment to juvenile delinquent aged 13 found to have
committed rape on child of 2 years. Sentence was reduced to one year's rigorous
imprisonment and a fine of Rs.2000 was imposed.
In Santo and others v. State of U.P.152 three boys aged between 10-14 years
raped 11 year old girl and were convicted for an offence under section 376 of the
Indian Penal Code. Allahabad High Court affirmed sentence of 2 years
imprisonment to be served by detention in an approved school.
On appeal, the Supreme Court held that the courts below have failed to
apply their mind to considerations which are relevant when a youthful offender is
sentenced. The U.P. Children Act, 1951 contains two provisions; section 29 and
section 30. Section 29 provides that when child is found to have committed an
offence punishable with transportation or imprisonment, the court, if satisfied on
inquiry that it is expedient so to deal with the child, may order him to be sent to
an approved school for a stated period. But under section 30 the court may order
that the youthful offender to be, instead of committing him to approved school,
either discharged after due admonition or released on probation of good conduct
and commit him to the care of his parents, etc. Since in this case child has acted
on impulse and there is nothing to show the presence of any vicious streak of
character, it would be more appropriate to leave him to the care and attention of
character, it would be more appropriate to leave him to the care and attention of
parental authority rather than to send him to an approved school.
It observed, “that our juvenile justice system still thinks in terms of terror,
not cure, of wounding, not healing, and a sort of blind man's buff is the result.
This negative approach converts even the culture of juvenile homes into junior

152
(1979) 2 SCC 628
jails. From the reformatory angle, the detainees are left to drift, there being no
constructive programme for the detainees nor correctional orientation and training
for ther institutional staff... The state's response to punitive issues relating to
juveniles has been stricken with 'illiteracy' and must awaken to a new
enlightenment, at least prompted by the International Year of the Child... The
mainstream of criminal justice system has not been refined by restorative
legislation... The finer focus of sentencing is not furious reaction to the offence
but habilitative rescue of the youthful offender from moral-material abandonment
and careful reformation by kindling his creative potential. Judicial responsibility
is not mechanic but humanistic, and the ritualistic magistrate is a misfit....”
In Bhoop Ram v. State of U.P.153 the issue for consideration was whether
the appellant who had been convicted and sentenced along with certain adults
accused should have been treated as a child within the meaning of Section 2 (4) of
the U.P. Children Act, 1951 and sent to the approved school for detention therein
till he attained the age of 18 years instead of being sentenced to undergo
imprisonment in jail.
The Court after considering the material on the record opined that the
appellant therein could not have completed 16 years of age on the date when the
offence was committed and held that the appellant should have been dealt with
under the U.P. Children Act instead of being sentenced to imprisonment when he
was convicted by the Sessions Judge under various grounds. Since the appellant,
more than 28 years, the court directed for quashing of remaining sentence
imposed on him and his release forthwith.
“... where an accused had been wrongly sentenced to imprisonment instead
of being treated as a “child under Section 2 (4) of the U.P. Children Act and sent
to an approved school and the accused had crossed the maximum age of detention
in an approved school viz., 18 years, the course to be followed is to sustain the
conviction but however quash the sentence imposed on the accused and direct his
release forthwith....”

153
1989 (3) SCC 1
336

In another case154 where at the time of the occurrence, all the three
appellants were below the age of 16 years it was opined that 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 Indian Penal code.
The Supreme Court held that “Since the appellants are now aged more
then 30 years, there is no question of sending them to an approved school under
the U.P. Children Act for detention. Accordingly, while sustaining the conviction
of the appellants under all the charges framed against them, we quash the
sentences awarded to them and direct their release forthwith....”
In Umesh Singh and another etc. v. State ofBihar155 one of the appellant-
Arvind Singh was convicted under Section 302 IPC read with Section 149 and
sentenced for life imprisonment. He was further convicted under Section 324 read
with Section 148 IPC and under Section 27 of the Arms Act by the trial court as
affirmed by the appellate Court. His only contention put forward before the
Supreme Court was that on the date of incident he was hardly 13 years old, and on
that basis he was a child for the purpose of the Bihar Children Act, 1970 on the
date of the occurrence, his trial having been conducted along with other accused
who are not children is not in accordance with law. However, this contention had
not been raised either before the trial Court or before the High Court.
The Supreme Court called for report of experts being placed before the
Court as to the age of the appellant, Arvind Singh. The report proved that on the
date of the incident he was 13 years old. The Court relying on its earlier
judgments,156 while sustaining the conviction of the appellant, set aside further
sentence, imposed upon him and he was set at liberty.
In Uttam Ghosh v. State of West Bengal and another157 the accused
assaulted victim as a result of which victim's left thumb was imputed. The case

154 Pradeep Kumar v. State ofU.P.(l995) Supp. (4) SCC 419


155 2000 SOL Case No.346
156 Bhola Bhagat v. State ofBihar, 1997 (8) SCC 720; 1998 (1) RCR (Crl.)21, following the
earlier decision in Gopinath Ghosh v. State of West Bengal, 1984(1)RCR (Crl.) 445; 1984
Supp. SCC 228 and Bhoop Ram v. State ofU.P., 1989 (1) RCR (Crl.) 573 : 1989(3) SCC
1 and Pradeep Kumar v. State ofU.P., 1995 Supp. (4) SCC 419.
157
2004-(110)-Cr. L.J. 0440-CAL
337

was committed to the Court of Session where the defence produced one
ossification test report pointing out that the accused was aged about 17 years at
the time of the alleged offence, and after a contested hearing, the Additional
Sessions Judge came to the finding that the accused was a minor and that he was
fit to proceed with the trial as there was no Juvenile Court in the District. The
judge found the accused guilty under Section 307, EPC and sentenced him to
suffer R.I. for 7 years and to pay a fine of Rs.500/-, in default, to suffer further
R.I. for three months. This appeal is directed against said judgment and order. The
appellant practically did not challenge the conviction, but he directed his attack on
the non-observance of the settled principle of law by the trial court in the case of a
juvenile delinquent within the meaning of the West Bengal Children Act, 1959
and argued that the provision of Section 26 of the Act was not followed by the
court below and the order of sentence was passed without taking into
consideration the facts and circumstances of this case. It is also pointed out that
though the Judge concluded that the accused was of tender age and the incident
took place on the spur of moment, no attempt was made to take into consideration
the provisions of section 26 of the Act. Accordingly, the appellant contended that
in a case of this nature, sentence is liable to be set aside. The State, however,.
contended that the evidence on records is sufficient to indicate that die trial Court
came to a just decision in convicting the present appellant under Section 307 IPC.
It is also contended that in view of the provisions of Section 465, Cr. R C., there is
no reason to interfere with the sentence passed in this case.
After a due consideration of the evidence on record and circumstances
explained, the Judge rightly found the accused guilty and convicted him
thereunder. But as regards imposition of sentence, he completely ignored his own
order dated 16-4-85 in which he concluded that the present appellant was a minor
and proceeded as if, the accused person was an adult and not a juvenile delinquent
within the meaning of West Bengal Children Act, 1959.
The trial Court only at the initial stage followed the procedure and
examined the accused under Section 251, Cr. R C. but thereafter forgot to apply
338

the other provisions of the Code. This is sufficient to show that a failure of justice
has ip fact been occasioned thereby, and accordingly, the Court is competent to
proceed with the question of legality of the sentence and Section 465 of the
Cr.P.C. is not a bar.
In Section 27 of the West Bengal Children Act, 1959, there are provision
as to what order can be lawfully passed in respect of the juvenile delinquent. The
trial Court did not consider this aspect of the matter. The imposition of sentence to
R.I. for 7 years and thereafter to pay a fine of Rs.500/- and, in default, to suffer
further R.I. for three months are sufficient to indicate that the Court below did not
apply its mind to the West Bengal Children Act, 1959. In fact, he was not
competent to pass an order of sentence in the manner done in this case and
accordingly, passing of the sentence in this case has no sanction of law and
accordingly it is liable to be set aside.
In the facts and circumstances of this case, the conviction of the present
appellant is upheld, but sentence is liable to be set aside or quashed. In the present
case, the accused was aged 17 years at the time of alleged offence in 1983 and at
present, he is aged about 36 years and as such no purpose would be served in
passing any order under Section 26 of the West Bengal Children Act, 1959.
Accordingly, the conviction of the appellant under Section 307 IPC is sustained,
but the sentence awarded to him is quashed and the accused is discharged from
the Bail bond. It is made clear that in terms of Section 49 of the West Bengal
Children Act, 1959, the conviction of the said accused shall not be regarded as
disqualification attached to conviction for an offence.
In Nuwala Kiran v. The State of A.P.lsi the accused 17 year old,
committed rape on a girl child. On the report given by father of the victim girl,
case was registered by the police against him under Section 376 (f) of EPC. The
trial found accused guilty of the offence and convicted the accused, and, instead
of sentencing him under Section 376 (2)(f), IPC ordered his detention in the A.P.
Borstal School, Nizamabad, for a period of three years, for the purpose of

158
2004 Cri LJ1263
339

reforming himself for getting proper training therein. Aggrieved thereby, the
accused filed the present appeal questioning his conviction and detention in
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Borstal School. Appeal was dismissed.


The High Court found that the medical evidence, as well as, the evidence
of witnesses proved conclusively the guilt of the accused. Hence, the accused was
rightly convicted by the trial Court. However, die trial Court did not sentence the
accused, thereunder, but instead, directed his detention in the A.P. Borstal School.
Since the accused is aged 17 years, he was not Juvenile under Juvenile Justice
Act, 1986. Therefore, his detention in the A.P. Borstal School for three years is
fully justified and warranted according to law.
The period of three years detention is also fully justified and perfectly
warranted by Law and the provisions of the A.P. Borstal Schools Act, 1925. Under
Sub-Section (1) of Section 2 of that Act, an adolescent offender is defined, inter-
alia, as a person of hot less than 16 years and not more than 21 years of age.
Under Section 8 of that Act, inter-alia, an adolescent offender can be directed to
be detained in the Borstal School for a term which shall not be less than two years
and shall not exceed five years, but, in the case, extending beyond the date on
which the adolescent offender in the opinion of the Court, attains the age of 23
. years. In the case on hand the accused was aged 17 years and was an adolescent,
as defined, as on the date of offence on 18.1.2001. He will attain the age of 23
years in 2007. While so, the trial Court ordered his detention for three years i.e.
not less than two years and not more than five years as prescribed by the said
Section 8. The period of three years detention directed by the trial Court will
expire in the year 2004 and in any case, will not be beyond 2007. So, the
detention ordered by the trial Court is perfectly valid and legal. There are no
reasons, whatsoever, to reduce the period of detention from three years to any
lesser extend, which, in no case, cannot be less than two years, as per the said
Section 8 of that Act. Hence, the impugned judgment of the trial Court, as also the
conviction and the detention of the accused in the Borstal School ordered thereby
are all valid and legal and do not suffer from any factual, legal or inherent
340

illegality or infirmity so as to warrant this Appellate Court, to interfere therewith


on any such ground or grounds.
In Jitendra @ Band159, the accused juvenile was convicted for the murder
and he was sentenced to suffer life imprisonment. The High Court on appeal
maintained the conviction but set aside sentence because of the fact that the
accused was a juvenile and in view of Section 20 of the JJ Act, the appellant could
not have been ordered to undergo imprisonment.
In case of Sheela Barse v. Secy., Children's Aid Society,160 the appellant
challenged the judgment of the Bombay High Court delivered on a writ petition
filed by her. In the writ petition before the Bombay High Court she made
grievance about the working of the New Observation Home located at Mankhurd
-maintained and managed by the Children’s Aid Society, Bombay. The grievances
made by the petitioner were of four:
"(1) Delay in repatriation or restoration of children to their parents in respect of
whom orders for repatriation were made by the Juvenile Court;
(2) Non-application of mind in the matter of taking children into custody and
directing production before the Juvenile Court;
(3) Absence of proper follow-up action after admission of the children in the
Observation Homes, in particular, grievance was made that the Child Welfare
Officers were not performing their duties and such failure led to continued
detention of children without any justification; and
(4) Detention in such circumstances was illegal and the condition very often
resulted in harassment to the children so detained.”
The Society denied allegations raised in the writ petition and both parties
produced documents. The High Court went into the matter at considerable length,
found some of the allegations to be without any justification and yet others were
accepted. The High Court collated its directions and recommended thus:
“(A) (i) A copy of the repatriation order passed by the Juvenile Court should
always be sent to the Juvenile Aid Police Unit as it is now sent to the Observation

159
RLW 2004 (2) Raj 1297
160
(1987) 3 SCC 50
Home. The order should specify that the police should implement that order
within a week;
(ii) The possibility of detailing sufficient number of personnel in the police
department for the work connected with the Bombay Children's Act should be
speedily considered;
(iii) The government should immediately review the resolution dated September
2, 1965 issued by the Education and Social Welfare Department, which fixes the
allowances for escort duties done by voluntary organisations;
(iv) It is also recommended that the government should consider the constitution
of an Escort Service which can consist of police personnel, youth volunteers and
government servants;
(v) The observation homes and the JAPU should not wait for a sufficient number
of children being ready for being escorted before implementing the orders passed
by the Juvenile court.
(B) (i) The Magistrate presiding over the Juvenile Court should insist, in the case
of local children, that the police must trace the parents of the children within a
maximum period of 48 hours and take steps to restore them to their parents;
(ii) Any tendency, if there is one, on the part of the personnel of JAPU of fulfilling
the quota for a month should be firmly put down;
Before the Supreme Court, the appellant maintained that the High Court
failed to consider several of the contentions advanced by her at the hearing of the
writ petition, namely, children while staying in the Observation Homes are forced
to work without remuneration and are engaged in hazardous employment. There
were instances where Observation Homes assigned the work to private
entrepreneurs with a view to making financial gains for the Society. In support of
this circumstance, reliance was placed upon an affidavit on behalf of the
respondent filed in the High Court. The appellant next contended, relying on the
balance-sheet of the Society forming part of the annual report, that the Society
was making a profit of about Rs 4 lakhs a year by engaging children to discharge
various types of labour without making any payment to them. According to the
appellant, the shortfall in follow-up action has not been properly considered by
the High Court and the directions given by it are inadequate. In giving the
r

directions, the High Court lost sight of mandatory provisions of the Children's Act
as also the provisions in Articles 21 and 24 of the Constitution and the provisions
contained in the Directive Principles of the State Policy. The appellant contended
that Respondent Society should be treated as a State and not as a voluntary
organization. In view of the materials placed on the record about the constitution
and manning of the Society as also funding thereof, according to the appellant, the
court should have appreciated the position that it was the protector of the helpless
children living within its jurisdiction and such care and attention and provisions of
amenities as were necessary for their proper upkeep and bringing up should have
been ensured by the judgment of the High Court. She also contended that the
directions of the High Court in the matter of illegal detention of children was not
adequate.
The Court did not agree with the contention advanced by the appellant that
for employment in children's home, the children should be given remuneration.
It observed that children in Observations Homes should not be made to
stay long and as long as they are there, they should be kept occupied and the
occupation should be congenial and intended to bring about adaptability in life
aimed at bringing about a self-confidence and picking of humane virtues.
The Court did not agree with the supervision over the Homes even though
without this aspect being assured, the conditions of Homes could not improve.
The Court held that dedicated workers have to be found out, proper training to
them has to be imparted and such people alone should be introduced into the
children homes.
The Court held:
(i) That the Child Welfare Officer (Probation) as also the
Superintendent of the Observation Home must be duly motivated.
They must have a working knowledge in psychology and have a
keen sense of observation and on observation and on their good
functioning would depend the efficacy of the scheme.
(ii) The Juvenile Court has to be manned by a Judicial Officer with
- ^
r some special training. Creation of a court with usual Judicial
Officer and labelling it as Juvenile Court does not serve the
requirement of the statute. If that were so, the statute would have
no necessity of providing a Juvenile Court. The statutory scheme
contemplates a judicial officer of a different type with a more
sensitive approach-oriented outlook. Without these any Judicial
Officer would, indeed, not be competent to handle the special
problem of children.
(iii) The Court agreed with the appellant that the respondent
Society should be treated as a State within the meaning of Article
12. The respondent Society was therefore told to regulate its
activities not only in accordance with the statutory requirements
but also act in a manner satisfying the requirements of the
constitutional provisions in Articles 21 and 24 as also the Directive
Principles of State Policy.
(iv) The Court also directed the State of Maharashtra to take
prompt action to strictly enforce the law, act upto the requirements
of the constitutional obligations and proceed to implement the
directions given by the High Court as also by it in this judgment.
The court observed:
"Children are the citizens of the future era. On the proper bringing
up of children and giving them the proper training to turn out to be
good citizens depends the future of the country. In recent years,
this position has been well realised. In 1959, the Declaration of all
the rights of the child was adopted by the General Assembly of the
United Nations and in Article 24 of the International Covenant on
Civil and Political Rights, 1966. The importance of the child has
been appropriately recognised. India as a party to these
344

International Charters having ratified the Declarations, it is an


" obligation of the Government of India as also the State machinery
r

to implement the same in the proper way. The Children’s Act,


1948 has made elaborate provisions to cover this and if these
provisions are properly translated into action and the authorities
created under the Act become cognizant of their role, duties and
obligation in the performance of the statutory mechanism created
under the Act and they are properly motivated to meet the
situations that arise in handling the problems, the situation would
certainly be very much,eased..
"In recent years, children and they problems have been receiving attention
both of the Government as also of the society but we must say that the problems
are of such enormous magnitude that all that has been done till now is not
sufficient. If there be no proper growth of children of today, the future of the
country will be dark. It is the obligation of every generation to bring up children
who will be citizens of tomorrow in a proper way. Today’s children will be the
leaders of tomorrow who will hold the country’s banner high and maintain the
prestige of the Nation. If a child goes wrong for want of proper attention, training
and guidance, it will indeed be a deficiency of the society and of the Government
of the day. A problem child is indeed a negative factor. Every society must,
therefore, devote full attention to ensure that children are properly cared for and
brought up in a proper atmosphere where they could receive adequate training,
education and guidance in order that they may be able to have their rightful place
in the society when they grow up."
In Suresh Dutt v. State of Rajasthan,161 the Juvenile Court convicted the
revisionist-petitioner for offences under Sections 302 and 364,1.P.C. and referred
the matter to the State Government under section 22(i) of the Juvenile Justice Act,
1986. On receipt of the letter from the ' State Government, the Juvenile Court
ordered to detain the petitioner for a period of 5 years in Juvenile Reformatory,

161
2003-C 109)-CRLJ -3342 -RAJ
Udaipur attached to the Central Jail Udaipur. On 12th May, 1992, the learned
Additional Sessions Judge reduced the duration of detention from 5 years to 3
years in Judicial Reformatory, Udaipur u/s. 22(i) of the Act.
Against this judgment and appeal, this revision was filed on 17th May,
1992. In this petition, the petitioner argued that the prosecution is not able to
prove the offences alleged to have been committed by the accused and challenged
the finding of conviction recorded by the Juvenile Court and upheld by the Court
of Sessions. Secondly, it was argued that the Court of Additional Sessions Judge
was not competent to try and hear the appeal u/s. 37 of the Act and die conviction
is vitiated on this sole ground. Thirdly, it was argued that as the revisionist-
petitioner has now attained the age of 18 years, he cannot he sent to Juvenile
Reformatory in view of the provisions of Section 21(l)(d) of the Act.
The Court rejected all the contentions forwarded by the petitioner but
accepted that "Since the appellant is presently aged more than 36 years, there is
no question of sending him now to an approved School under the Juvenile Justice
Act for detention. Accordingly while sustaining the conviction of the appellant
under all the charges proved against him, the order of sending him to Approved
Reformatory School is quashed." Hence the revision petition was partly allowed.
In Sheo Shankar Singh v. State of Bihar162, on the basis of Civil Surgeons
report accused-appellant was found to be below 16 years of age at the time of
commission of offence. Hence, order of conviction against him was confirmed but
order of sentence was set aside and his case was remitted to the children's court.
In Parameswaran v. State ofKerala,163 juvenile was convicted for causing
death of one person alongwith his brother and father. He was sentenced to one
year rigorous imprisonment. This conviction was challenged in this appeal to the
Kerala High Court. In this case,
©juvenile was produced for the first time before the Children’s Court established
under the JJ Act of 1986 on 4.11.96 when he had completed 17 years of age, his
date of birth being 6.10.79.

162
(1982 )1 SCC 480
163
2004(2) KLT 1140
346

(ii) relying on Amit Das judgment, when he was brought before competent
authority, on 4.1 1.96, he was held not to be juvenile and therefore he was tried by
r

the Sessions Court.


(iii) the trial started on 26.11.98 by which time he had crossed the age of 18 as
well. The trial was completed and judgment was pronounced finding him guilty
on 25-1-2002, by which time JJ Act 1986 was repealed and JJ Act 2000 came into
force.
The High Court upheld the conviction but set aside the sentence for
following reasons;
When the date of production of the incumbent is considered, with
reference to the date of sentence, applying the law then in force, it has to be held
that the second accused was a Juvenile going by Act of 2000, which wm prevalent
as on the date of sentencing.
A person who had not been a juvenile, as per the Act of 1986, and tried by
an ordinary court and sentenced, if found to be a juvenile, on enforcement of the
Act of 2000, shall have to be sent out of the jail, to be-dealt with in accordance
with the Act of2000. It is so provided in Section 64 of the Act of 2000.
Juvenile who is sentenced for imprisonment, being not a juvenile in terms
of Act, 1986, may get the benefit of Act of 2000, in spite of termination of the trial
and suffering of imprisonment in part ordered by a Court. In such circumstances,
necessarily, the provisions of the Act of 2000, also have to be applied, in respect
of a person who had not been juvenile at the time of the commencement of the
trial, but coming within that term, before the termination of the trial. Benefit,
which could be given to a convict shall also be extended to an under-trial as well.
In Jai Kishan @ Jaiki Vs. State of Haryana164 a juvenile who had not
completed eighteen years of age 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
Juvenile Justice Act, 1986. Appellant Jai Kishan alias Jaiki, who was 17 years of

164
2010 (4) RCR (Criminal) 783
347

age on the day of commission of the alleged offence, i.e. 13.10.1997, was tried by
the court of Sessions Judge, Rohtak for the offence under Section 302 IPC, for
committing the murder of Subhash, a co-villager. The court of Additional
Sessions Judge, Jhajjar, vide its judgment dated 16.8.2001, convicted the
appellant under Section 302 IPC. By the time, the appellant was convicted and
sentenced, the Juvenile Justice (Care and Protection of Children) Act, 2000 had
come into force and the earlier Juvenile Justice Act, 1986. Under the Juvenile
Justice Act, 2000, a new definition of 'juvenile in conflict with law' was
introduced, which defined a juvenile who is alleged to have committed an offence
and has not completed eighteen year of age as on the date of commission of such
offence, whereas under the Juvenile Justice Act, 1986, the upper age-limit for
male children to be considered as juveniles was 16 years. On 13.2.1998, when the
appellant was charge sheeted, he was 17 years of age, therefore, he was not
treated as a 'juvenile' under the Juvenile Justice Act, 1986, and he was tried by the
regular criminal court and not by the Juvenile Justice Board.
The court after considering Catina of authorities held the conviction of the
appellant recorded by the trial court vide judgment dated 16.8.2001, is upheld.
However, the order of sentence passed by the trial court on 18.8.2001 was set
aside.
In Jabar Singh Vs. Dinesh & Anr,165 the appellant was father of Prahalad
Singh alleged to have been murdered by the respondent no.l. Appeal was against
the order of the High Court of Rajastahan holding respondent no.l to be a juvenile
on the date of commission of the offence and directing the matter to be remitted
for trial under the Juvenile Justice (Care and Protection of Children) Act, 2000.
The relevant facts very briefly are that on 11.07.2004 one Bhomaram
lodged a complaint in Pratap Nagar Police Station, Jodhpur, against the
respondent no.l and others alleging the offence under Section 302 of the Indian
Penal Code alongwith other offences under the IPC. A criminal case was
registered and after investigation, the police filed chargesheet against inter alia

165
2010 (2) RCR (Criminal) 309
348

the respondent no.l and the case was transferred by the Sessions Judge to the
Special Judge, SC/ST (Prevention of Atrocities) Cases, Jodhpur, for trial. Before
r

the charges could be framed in the case, an application was filed on behalf of
respondent no.l under Section 49 of the Act, stating therein that the date of birth
of respondent no.l was 05.10.1988 and, therefore, on 11.07.2004, when the
offence is alleged to have committed, the respondent no.l was less than 18 years
of age and he was, thus, a juvenile and has to be tried separately from the other
accused under the Act. The State of Rajasthan, in its reply, stated inter alia that
the respondent no.l did not disclose that he was a juvenile at any time during the
investigation of the case or during the trial of other criminal cases for which he
was being tried and that he has taken this plea for the first time to avoid the trial
for the heinous crime and that the application of respondent no.l examined
witnesses and produced documents in support of his claim that he was a juvenile.
The State of Rajasthan did not produce any evidence. The trial court, after hearing
the parties and considering the evidence, rejected the application of the
respondent no.l by order dated 14.2.2006.
Aggrieved, the respondent no.l filed criminal revision petition before the
High Court. The High Court allowed the revision petition, set aside the order
dated 14.02.2006 passed by the trial court and remitted the matter to the trial court
for trial of the respondent no.l treating him to be a juvenile on the date of
commission of the alleged offence in accordance with the provisions of the Act.
In these facts the Supreme Court of India held that the High Court was not
at all right in reversing the findings of the trial court in exercise of its revisional
jurisdiction. The entry of date of birth of respondent no.l in the admission form,
the school records and transfer certificate did not satisfy the conditions laid down
in Section 35 of the Evidence Act inasmuch as the entry was not in any public or
official register and was not made either by a public servant in the discharge of his
official duty or by any person in performance of a duty specially enjoined by the
law of the country and, therefore, the entry was not relevant under Section 35 of
the Evidence Act for the purpose of determining the age of respondent no.l at the
time of commission of the alleged offence and resultantly, the appeal was allowed
setting aside order dated 18.8.2006 and remit the matter to the trial court for trial
of respondent no.l in accordance with law treating him not to be a juvenile at the
time of commission of the offence.
In Dharambir Vs. State (NCT of Delhi) & Anr}66 the question for
determination is whether or not the appellant, who was admittedly not a juvenile
within the meaning of the Juvenile Justice Act, 1986 when the offences were
committed but had not completed 18 years of age on that date, will be governed
by the Act of2000 and be declared as a juvenile in relation to the offences alleged
to have been committed by him ?.
The Supreme Court taking into account in Umesh Chandra, Amit Das,
Pratap Singh's cases and provisions of Section 7A and 20 of the Juvenile Justice
Act, 2000 and Rules of 2007 held that 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 ofjuvenility of a juvenile has to be in terms of Clause (I) 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. It further held that all persons who were
below the age of eighteen years on the date of commission of die offence even
prior to 1st April, 2001 would be treated as juveniles even if the claim ofjuvenility
is raised after they have attained the age of eighteen years on or before the date of
the commencement of the Act of 2000 and were undergoing sentences upon being
convicted.
In Ham Suresh Singh Vs. Prabhat Singh alias Chhotu Singh & Anr}61
respondent no.l was facing trial in Nava Nagar P.S. Case No.102 of 2003 on the
charge of committing murder of one Tribhuvan Singh. Appellant in the case was
the uncle of the deceased. Before the learned trial judge, a plea was raised by him

166
2010 (2) RCR (Criminal) 773
167
2010 (1) RCR (Criminal) 245
350

that he was a juvenile. In support of the said plea, entries in the admission
register/certificate in the Government Secondary School, Navanagar, Buxar, in
which he took admission on 22nd January 1996 and studied up to 31st December
1999 were produced. The said admission register/certificate showed that the date
of birth of the accused was 10.2.1987.
The learned Magistrate, however, appointed a Medical Board. The
Medical Board, in its report dated 10 February,2005, inter alia, upon taking
ossification test, estimated his age to be within 20 to 22 years. The Principal
Magistrate Juvenile Justice Board Patna vide order dated 3 August,2005 held that
on the date of occurrence age of respondent no.l was more than 20 years.
Respondent no.l filed a revision application before High Court of Patna which
was allowed. The High Court took into consideration the certificate issued by
Head Master of the High School stating the date of birth of the
petitioner/respondent as 10.2.87. In support of age, the admission register of the
school was also produced wherein his name was mentioned at Sr.No.134. There
also date of birth of the petitioner was mentioned as 10.2.1987. The date of
issuance of school leaving certificate was mentioned as 23.2.2000. There is no
reason for doubting or suspecting the genuineness of these two documents.
The order of High Court was challenged before Supreme Court which
finding no legal infirmity in the order dismissed the appeal and held that an entry
in a school register may not be a public document and, thus, must be proved in
accordance with law, as has been held by this court in case of Biradmal Singhvi,
but in this case the said entry has been proved. Even if we had to consider the
medical report, it is now well known that an error of two year in determining the
age is possible. The court further observed that we are not oblivious of the fact
that it is difficult to lay down a law as to whether in a case of this nature, the
lower or the upper age or the average age should be taken into consideration.
Each case depends on its own facts. In this case, however, the documents
produced by respondent no.l were not found to be forged, fabricated or otherwise
inadmissible in law. If a document is proved to be genuine and satisfies the
351

requirement of law, it should be, subject to just exceptions, relied upon.


■’Ll Mohan Mali & Anr. Vs. State of MP.168 the appellants along with two
r
other co-accused, were convicted under Section 302, 326, 324 IPC and sentenced
to life imprisonment along with fine of Rs.5, 000/- for offence under Section 302
IPC apart from other sentences for the other offences. The relevant facts are that
on 17 July, 2009, when the Special Leave Petition came up for admission before
Supreme Court, leave was granted and the hearing of the appeal was expedited.
However, the Appellants' prayer for bail was rejected at that stage. When the
matter was being heard for grant of leave, appellant no.2, Dhanna Lai, and this
Court observed that in the event Dhanna Lai was able to provide proof of his
claim that he was a juvenile on the date of the incident, he would be at liberty to
apply afresh for grant of bail with such supporting evidence. Pursuant thereto, a
fresh bail application was filed on behalf of Dhanna Lai on 27th January, 2010,
annexing a copy of the Birth Certificate of Dhanna Lai issued by the Chief
Registrar (Birth and Death), Municipal Corporation, Dhar, under Section 12 of the
Birth and Death Registration Act, 1969, maintained by the Corporation. From the
said certificate it appears that Dhanna Lai's date of birth was recorded as 12th
November, 1976 and was registered on 17th November, 1976, making it a
document which was contemporaneous with his birth. Upon due verification, it
was confirmed on behalf of the State of Madhya Pradesh that the Appellant no.2,
Dhanna Lai, was a juvenile on the date of commission of the offence.
Die Supreme Court observed:
“In the facts of this case, we are faced with a situation where the
juvenile, Dhana Lai, had already been tried along with adults and
had been convicted under Sections 302/34, 326/34 IPC and was
sentenced to life imprisonment, out of which he has already
undergone about 9 years of the sentence. Rule 98 of the 2007
Rules, in our view, squarely applies to Appellant No.2 Dhanna
Lai's case. His case is to be considered not only for grant of bail,

168
2010 (2) RCR (Criminal) 839
but also for release in terms of the said Rule since he has
,.. completed more than the maximum period of sentence as provided
under Section 15 of the 2000 Act”.
The legal position has been clearly explained in Hari Ram's case (supra)
and does not, therefore, require any further elucidation in this case. Having regard
to the fact that the appellant no.2, Dhanna Lai, was a minor on the date of
commission of the offence, and has already undergone more than the maximum
sentence provided under Section 15 of the 2000 Act, by applying the provisions of
Rule 98 of the 2007 Rules read with Sections 15 and 64 of the 2000 Act, we allow
the appeal as far as he is concerned and direct that he be released forthwith. The
bail application filed on his behalf is also disposed of, accordingly. The appeal so
far as other accused Mohan Mali, is concerned, was ordered to be listed for
hearing separately.
The Indian Parliament showing its solidarity with International
Community and in compliance with its commitment to International Obligations
has enacted Juvenile Justice (Care and Protection of Children) Act, 2000 in
conformity with the international standards and rules providing for up-liftment of
the children in need of care and protection and for better treatment and early
disposition of juveniles in conflict with law. Role of Supreme Court of India and
various High Courts has been very appreciable in interpreting the provisions of
the new enactment in such a way that advances the cause of the juvenile justice.
The judicial trends set by the Supreme and High Courts are guiding factors for the
lower judiciary. The beneficial provisions have been applied and benefit has been
given to a number of juveniles whose cases had even attained finality and they
were undergoing sentences. It has also been the efforts of the courts at the time of
final disposition of the case that an opportunity for reforming himself is provided
to the juvenile in conflict with law by way of proper training and providing
necessary care and protection for absorbing the juvenile in the main stream of life.

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