Abuzar Hossain @ Gulam Hossain Vs State of West Bengal

10 October 2012
Supreme Court
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ABUZAR HOSSAIN @ GULAM HOSSAIN Vs STATE OF WEST BENGAL

Bench: R.M. LODHA,T.S. THAKUR,ANIL R. DAVE
Case number: Crl.A. No.-001193-001193 / 2006
Diary number: 27512 / 2006
Advocates: RAUF RAHIM Vs ABHIJIT SENGUPTA

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1193 OF 2006

Abuzar Hossain @ Gulam Hossain …. Appellant

Versus State of West Bengal ….Respondent

WITH CRIMINAL APPEAL NO. 1397 OF 2003

SLP (Crl.) NO. 1451 OF 2003

R.P. (Criminal) No. 390 OF 2010 IN SLP(Crl.) No. 2542 OF 2010

SLP(Crl.) NO. 8768 OF 2011

SLP(Crl.) NO. 8855 OF 2011

CRIMINAL APPEAL NO. 654 OF 2002

SLP (Crl.) No. 616 OF 2012

JUDGMENT

R.M. Lodha, J.

Delinquent juveniles need to be dealt with differently from

adults. International covenants and domestic laws in various countries

have prescribed minimum standards for delinquent juveniles and

juveniles in conflict with law. These standards provide what orders

may be passed regarding delinquent juveniles and the orders

that may not be passed against them. This group of matters raises

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the question of when should a claim of juvenility be recognised and sent

for determination when it is raised for the first time in appeal or before

this Court or raised in trial and appeal but not pressed and then pressed

for the first time before this Court or even raised for the first time after

final disposal of the case.

2. It so happened that when criminal appeal preferred by

Abuzar Hossain @ Gulam Hossain came up for consideration before a

two-Judge Bench (Harjit Singh Bedi and J.M. Panchal, JJ) on

10.11.2009, on behalf of the appellant, a plea of juvenility on the date of

incident was raised. In support of the contention that the appellant was

juvenile on the date of incident and as such he could not have been tried

in a normal criminal court, reliance was placed on a decision of this

Court in Gopinath Ghosh v. State of West Bengal1. On the other hand,

on behalf of the respondent, State of West Bengal, in opposition to that

plea, reliance was placed on a later decision of this Court in Akbar

Sheikh and others v. State of West Bengal2. The Bench found that there

was substantial discordance in the approach of the matter on the

question of juvenility in Gopinath Ghosh1 on the one hand and the two

decisions of this Court in Akbar Sheikh2 and Hari Ram v. State of

Rajasthan and Another3. The Bench was of the opinion that as the issue

1 1984 (Supp) SCC 228 2 (2009) 7 SCC 415 3 (2009) 13 SCC 211

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would arise in a very large number of cases, it was required to be

referred to a larger Bench as the judgment in Akbar Sheikh2 and

Gopinath Ghosh1 had been rendered by co-ordinate Benches of this

Court. This is how these matters have come up before us.

3. The Parliament felt it necessary that uniform juvenile justice

system should be available throughout the country which should make

adequate provision for dealing with all aspects in the changing social,

cultural and economic situation in the country and there was also need

for larger involvement of informal systems and community based welfare

agencies in the care, protection, treatment, development and

rehabilitation of such juveniles and with these objectives in mind, it

enacted Juvenile Justice Act, 1986 (for short, ‘1986 Act’).

4. 1986 Act was replaced by the Juvenile Justice (Care and

Protection of Children) Act, 2000 (for short, ‘2000 Act’). 2000 Act has

been enacted to carry forward the constitutional philosophy engrafted in

Articles 15(3), 39(e) and (f), 45 and 47 of the Constitution and also

incorporate the standards prescribed in the Convention on the Rights of

the Child, United Nations Standard Minimum Rules for the Administration

of Juvenile Justice, 1985, the United Nations Rules for the Protection of

Juveniles Deprived of their Liberty (1990) and all other relevant

international instruments. Clause (k) of Section 2 defines “juvenile” or

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“child” to mean a person who has not completed eighteenth year of age.

Clause (l) of Section 2 defines “juvenile in conflict with law” to mean a

juvenile who is alleged to have committed an offence and has not

completed eighteenth year of age on the date of commission of such

offence.

5. Section 3 of 2000 Act provides for continuation of inquiry in

respect of juvenile who has ceased to be a juvenile. It reads as under:

“S.3 . Continuation of inquiry in respect of juvenile who has ceased to be a juvenile.—Where an inquiry has been initiated against a juvenile in conflict with law or a child in need of care and protection and during the course of such inquiry the juvenile or the child ceases to be such, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile or a child.”

6. Chapter II of 2000 Act deals with juvenile in conflict with law.

This Chapter comprises of Sections 4 to 28. Section 4 provides for

constitution of juvenile justice board and its composition. Section 5

provides for procedure, etc. in relation to juvenile justice board. Section 6

deals with the powers of juvenile justice board. Section 6 reads as under :

“S.6 . Powers of Juvenile Justice Board.—(1) Where a Board has been constituted for any district, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law.

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(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise.”

7. By Act 33 of 2006, the Parliament brought in significant

changes in 2000 Act. Inter alia, Section 7A came to be inserted. This

Section is lynchpin around which the debate has centered around in

these matters. Section 7A provides for procedure to be followed when

claim of juvenility is raised before any court. It reads as follows:

“S.7A. Procedure to be followed when claim of juvenility is raised before any court.—(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.”

8. Section 49 of 2000 Act deals with presumption and

determination of age. This Section reads as under: 5

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“49 . Presumption and determination of age.—(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit)and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.

(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person.”

9. Sections 52 and 53 deal with appeals and revision. Section

54 provides for procedure in inquiries, appeals and revision proceedings,

which reads as follows:

“S.54 . Procedure in inquiries, appeals and revision proceedings.—(1)Save as otherwise expressly provided by this Act, a competent authority while holding any inquiry under any of the provisions of this Act, shall follow such procedure as may be prescribed and subject thereto, shall follow, as far as may be, the procedure laid down in the Code of Criminal Procedure, 1973 (2 of 1974) for trials in summons cases.

(2) Save as otherwise expressly provided by or under this Act, the procedure to be followed in hearing appeals or revision proceedings under this Act shall be, as far as practicable, in accordance with the provisions of the Code of Criminal Procedure, 1973(2 of 1974).”

10. In exercise of powers conferred by the proviso to sub-section

(1) of Section 68 of the 2000 Act, the Central Government has framed the

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rules entitled “The Juvenile Justice (Care and Protection of Children)

Rules, 2007” (for short, “2007 Rules”). The relevant rule for the purposes

of consideration of the issue before us is Rule 12 which provides for

procedure to be followed in determination of age. Since this Rule has a

direct bearing for consideration of the matter, it is quoted as it is. It reads

as under :

“R. 12. Procedure to be followed in determination of Age.— (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining—

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(b) and only in the absence of either (i),(ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusion proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.”

11. It is not necessary to refer to facts of criminal appeal

preferred by Abuzar Hossain @ Gulam Hossain or the other referred

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matters. Suffice it to say that in criminal appeal of Abuzar Hossain @

Gulam Hossain, in support of the argument that he was juvenile on the

date of incident and as such he could not have been tried in the normal

criminal court, his statement recorded under Section 313 of the Code of

Criminal Procedure, 1973 (for short, 'the Code’) was pressed into service.

It was, however, found from the evidence as well as the judgments of the

trial court and the High Court that the issue of juvenility was not pressed

at any stage and no evidence whatsoever was led by him to prove the

age. It was in the backdrop of these facts that Gopinath Ghosh1 was relied

upon in support of the proposition that notwithstanding the fact that the

plea of juvenility had not been pressed, it was obligatory on the court to

go into the question of juvenility and determine his age.

12. Gopinath Ghosh1 was a case where he was convicted along

with two others for an offence under Section 302 read with Section 34 of

IPC and sentenced to suffer imprisonment for life by the trial court. He

and two co-accused preferred criminal appeal before Calcutta High Court.

In the appeal, two accused were acquitted while the conviction and

sentence of Gopinath Ghosh was maintained. Gopinath Ghosh filed

appeal by special leave before this Court. On his behalf, the argument

was raised that on the date of offence, i.e. on 19.8.1974 he was aged

below 18 years and he is therefore a “child” within the meaning of the

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expression in the West Bengal Children Act, 1959 and, therefore, the

court had no jurisdiction to sentence him to suffer imprisonment after

holding a trial. Having regard to the contention raised on behalf of the

appellant, this Court framed an issue for determination; what was the age

of the accused Gopinath Ghosh (appellant) on the date of offence for

which he was tried and convicted? The issue was remitted to the

Sessions Judge, Nadia to ascertain his age and submit the finding. The

Additional Sessions Judge, First Court, Nadia, accordingly, held an

inquiry and after recording the evidence and calling for medical report and

after hearing parties certified that Gopinath Ghosh was aged between 16

and 17 years on the date of the offence. The finding sent by the Additional

Sessions Judge was not questioned before this Court. The Court

examined the scheme of West Bengal Children Act, 1959 and also noted

Section 24 thereof which had an overriding effect taking away the power

of the court to impose the sentence of imprisonment unless the case was

covered by the proviso thereto. Then in paragraph 10 (pg. 231) of the

Report, this Court held as under:

“10. Unfortunately, in this case, appellant Gopinath Ghosh never questioned the jurisdiction of the Sessions Court which tried him for the offence of murder. Even the appellant had given his age as 20 years when questioned by the learned Additional Sessions Judge. Neither the appellant nor his learned counsel appearing before the learned Additional Sessions Judge as well as at the hearing of his appeal in the High Court ever questioned the jurisdiction of the trial court to hold the trial of the appellant, nor was it ever contended

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that he was a juvenile delinquent within the meaning of the Act and therefore, the Court had no jurisdiction to try him, as well as the Court had no jurisdiction to sentence him to suffer imprisonment for life. It was for the first time that this contention was raised before this Court. However, in view of the underlying intendment and beneficial provisions of the Act read with clause (f) of Article 39 of the Constitution which provides that the State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment, we consider it proper not to allow a technical contention that this contention is being raised in this Court for the first time to thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it.”

13. In paragraph 13 (pgs. 232-233) of the Report, the Court

observed as under:

“13. Before we part with this judgment, we must take notice of a developing situation in recent months in this Court that the contention about age of a convict and claiming the benefit of the relevant provisions of the Act dealing with juvenile delinquents prevalent in various States is raised for the first time in this Court and this Court is required to start the inquiry afresh. Ordinarily this Court would be reluctant to entertain a contention based on factual averments raised for the first time before it. However, the Court is equally reluctant to ignore, overlook or nullify the beneficial provisions of a very socially progressive statute by taking shield behind the technicality of the contention being raised for the first time in this Court. A way has therefore, to be found from this situation not conducive to speedy disposal of cases and yet giving effect to the letter and the spirit of such socially beneficial legislation. We are of the opinion that whenever a case is brought before the Magistrate and the accused appears to be aged 21 years or below, before proceeding with the trial or undertaking an inquiry, an inquiry must be made about the age of the accused on the date of the occurrence. This ought to be more so where special Acts dealing with juvenile delinquent are in force. If necessary, the Magistrate may refer the accused to the Medical Board or the Civil Surgeon, as the case may be, for obtaining

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creditworthy evidence about age. The Magistrate may as well call upon accused also to lead evidence about his age. Thereafter, the learned Magistrate may proceed in accordance with law. This procedure, if properly followed, would avoid a journey upto the Apex Court and the return journey to the grass-root court. If necessary and found expedient, the High Court may on its administrative side issue necessary instructions to cope with the situation herein indicated.”

14. In Bhoop Ram v. State of U.P.4, a two-Judge Bench of this

Court was concerned with the question as to whether the appellant Bhoop

Ram should have been treated as a “child” within the meaning of Section

2(4) of the U.P. Children Act, 1951 and sent to an approved school for

detention therein till he attained the age of 18 years instead of being

sentenced to undergo imprisonment in jail. In Bhoop Ram4, the Chief

Medical Officer, Bareilly gave a certificate that as per the radiology

examination and physical features, he appeared to be 30 years of age as

on 30.4.1987. Bhoop Ram did not place any other material before the

Sessions Judge except the school certificate to prove that he had not

completed 16 years on the date of commission of the offences. The

Sessions judge rejected the school certificate produced by him on the

ground that “it is not unusual that in schools ages are understated by one

or two years for future benefits”. As regards medical certificate the

Sessions Judge observed that as he happened to be about 28-29 years

of age on 1.6.1987, he would have completed 16 years on the date of 4 (1989) 3 SCC 1

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occurrence. Before the Court, on behalf of the appellant, Bhoop Ram, it

was contended that school certificate produced by him contained definite

information regarding date of birth and that should have prevailed over

the certificate of the doctor and the Sessions Judge committed wrong in

doubting the correctness of the school certificate. This Court on

consideration of the matter held that appellant Bhoop Ram could not have

completed 16 years of age on 3.10.1975 when the occurrence took place

and as such he ought to have been treated as “child” within the meaning

of Section 2(4) of the U.P. Children Act, 1951 and dealt with under

Section 29 of the Act. The Court gave the following reasons for holding

appellant, Bhoop Ram, a “child” on the date of occurrence of the incident:

“7. …….The first is that the appellant has produced a school certificate which carries the date 24-6-1960 against the column “date of birth”. There is no material before us to hold that the school certificate does not relate to the appellant or that the entries therein are not correct in their particulars. The Sessions Judge has failed to notice this aspect of the matter and appears to have been carried away by the opinion of the Chief Medical Officer that the appellant appeared to be about 30 years of age as on 30-4-1987. Even in the absence of any material to throw doubts about the entries in the school certificate, the Sessions Judge has brushed it aside merely on the surmise that it is not unusual for parents to understate the age of their children by one or two years at the time of their admission in schools for securing benefits to the children in their future years. The second factor is that the Sessions Judge has failed to bear in mind that even the trial Judge had thought it fit to award the lesser sentence of imprisonment for life to the appellant instead of capital punishment when he delivered judgment on 12-9-1977 on the ground the appellant was a boy of 17 years of age. The observation of the trial Judge would lend

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credence to the appellant's case that he was less than 10 (sic 16) years of age on 3-10-1975 when the offences were committed. The third factor is that though the doctor has certified that the appellant appeared to be 30 years of age as on 30-4-1987, his opinion is based only on an estimate and the possibility of an error of estimate creeping into the opinion cannot be ruled out. As regards the opinion of the Sessions Judge, it is mainly based upon the report of the Chief Medical Officer and not on any independent material. On account of all these factors, we are of the view that the appellant would not have completed 16 years of age on the date the offences were committed……..”

15. A three-Judge Bench of this Court in Pradeep Kumar v. State

of U.P.5 was concerned with the question whether each of the appellants

was a “child” within the meaning of Section 2(4) of the U.P. Children Act,

1951 and as such on conviction under Section 302/34 IPC, they should

have been sent to approved school for detention till the age of 18 years.

The Court dealt with the matter in its brief order thus:

“2. At the time of granting special leave, Jagdish appellant produced High School Certificate, according to which he was about 15 years of age at the time of occurrence. Appellant Krishan Kant produced horoscope which showed that he was 13 years of age at the time of occurrence. So far as appellant Pradeep is concerned a medical report was called for by this Court which disclosed that his date of birth as January 7, 1959 was acceptable on the basis of various tests conducted by the medical authorities.

3. It is thus proved to the satisfaction of this Court that on the date of occurrence, the appellants had not completed 16 years of age and as such they should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment on conviction under Section 302/34 of the Act.”

5 1995 Supp (4) SCC 419 14

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16. The above three decisions came up for consideration before

this Court in Bhola Bhagat v. State of Bihar6. The plea raised on behalf of

the appellants that they were ‘children’ as defined in the Bihar Children

Act, 1970 on the date of occurrence and their trial along with adult

accused by the criminal court was not in accordance with law was

rejected by the High Court observing that except for the age given by the

appellants and the estimate of the court at the time of their examination

under Section 313 of the Code, there was no other material in support of

the appellants’ claim that they were below 18 years of age. This Court

flawed the approach of the High Court and observed as follows :

“8. To us it appears that the approach of the High Court in dealing with the question of age of the appellants and the denial of benefit to them of the provisions of both the Acts was not proper. Technicalities were allowed to defeat the benefits of a socially-oriented legislation like the Bihar Children Act, 1982 and the Juvenile Justice Act, 1986. If the High Court had doubts about the correctness of their age as given by the appellants and also as estimated by the trial court, it ought to have ordered an enquiry to determine their ages. It should not have brushed aside their plea without such an enquiry.”

17. Gopinath Ghosh1, Bhoop Ram4 and Pradeep Kumar5 were

elaborately considered in paragraphs 10, 11 and 12 of the Report. The

Court also considered a decision of this Court in State of Haryana v.

Balwant Singh7 and held that the said decision was not a good law. In

6 (1997) 8 SCC 720 7 1993 (Supp) 1 SCC 409

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paragraph 15 of the Report, the Court followed the course adopted in

Gopinath Ghosh1 , Bhoop Ram4 and Pradeep Kumar5 and held as under :

“15. The correctness of the estimate of age as given by the trial court was neither doubted nor questioned by the State either in the High Court or in this Court. The parties have, therefore, accepted the correctness of the estimate of age of the three appellants as given by the trial court. Therefore, these three appellants should not be denied the benefit of the provisions of a socially progressive statute. In our considered opinion, since the plea had been raised in the High Court and because the correctness of the estimate of their age has not been assailed, it would be fair to assume that on the date of the offence, each one of the appellants squarely fell within the definition of the expression “child”. We are under these circumstances reluctant to ignore and overlook the beneficial provisions of the Acts on the technical ground that there is no other supporting material to support the estimate of ages of the appellants as given by the trial court, though the correctness of that estimate has not been put in issue before any forum…..”.

18. Mr. Pradip Kr. Ghosh, learned senior counsel for the

appellant Abuzar Hossain @ Gulam Hossain, relying heavily upon the

above cases, submitted that what was earlier established by judicial

interpretation in Gopinath Ghosh1, Bhoop Ram4 and Pradeep Kumar5

became the statutory law with the enactment of Section 7A of 2000 Act

and Rule 12 of the 2007 Rules and in view thereof a different approach is

required with regard to the delinquent juveniles as and when plea of

juvenility is raised before the court. Learned senior counsel would submit

that the courts have to ensure that the beneficial provisions contained in

Section 7A and Rule 12 are not frustrated by procedural rigidity. It was 16

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submitted that while enacting Section 7A, the Legislature has taken note

of socio-economic ground realities of the country and had kept in view

juveniles who come from amongst the poorest of the poor, slum dwellers,

street dwellers and some of those having no shelter, no means of

sustenance and for whom it would be a far cry to have any documents as

they would have neither any schooling nor any birth registration. The law

has to be applied in the manner so that its benefits are made available to

all those who are entitled to it. He contended that the very fact that Rule

12 provided for every possible opportunity to establish the juvenility and

when everything fails there is the mandate of holding the medical

examination of the delinquent, shows the legislative intent.

19. Mr. Pradip Kr. Ghosh, learned senior counsel also submitted

that the law with regard to juvenile delinquents by insertion of Section 7A

has been given retrospective effect and made applicable even after

disposal of the case and, therefore, in all such cases, those who had no

occasion to claim the benefit of juvenility in the past deserve fresh

opportunity to be given and they should be allowed to produce such

materials afresh as may be available in support of the claim. He submitted

that a purposive interpretation to Section 7A and Rule 12 must be given to

bring within their fold not only documents which are contemplated in

terms of sub-rule (3) of Rule 12 but also cases in which no such

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document is available but if the accused is referred to a medical board,

his age would eventually be found to be such as would make him a

juvenile.

20. Mr. Pradip Kr. Ghosh, learned senior counsel did not dispute

that for the purpose of making a claim with regard to juvenility, the

delinquent has to produce some material in support of his claim and in

the absence of any documentary evidence, file at least a supporting

affidavit affirmed by one of his parents or an elder sibling or other relation

who is competent to depose as to his age so as to make the court to

initiate an inquiry under Rule 12(3). He did concede that a totally frivolous

claim of juvenility which on the face of it is patently absurd and inherently

improper may not be entertained by the court but at the same time the

court must not be hyper-technical and must ensure that beneficial

provision is not defeated by undue technicalities.

21. Learned senior counsel submitted that the statement under

Section 313 of the Code or the voters’ list may not be decisive but the

documents of such nature may be adequate for the court to initiate an

inquiry in terms of Rule 12(3). According to him, what is decisive is the

result of the inquiry under Rule 12(3). However, semblance of material

must justify an order to cause an inquiry to be made to determine the

claim of juvenility.

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22. Mr. Abhijit Sengupta, learned counsel for the State of West

Bengal, submitted that although the provisions of 2000 Act as amended in

2006, and the Rules must be given full effect as these are beneficial

provisions for the benefit of juveniles, but at the same time this Court

must ensure that the provisions are not abused and a floodgate of cases

does not start. He submitted that in Pawan v. State of Uttaranchal8, a 3-

Judge Bench of this Court had emphasized on the need for satisfactory,

adequate and prima facie material before an inquiry under Rule 12 could

be commenced and the law laid down in Pawan8 must be followed as

and when claim of juvenility is raised before this Court. He submitted that

claim of juvenility must be credible before ordering an inquiry under Rule

12.

23. Mr. Nagendra Rai, learned senior counsel for the petitioner

in the connected Special Leave Petition being SLP (Criminal) No. 616 of

2012, Ram Sahay Rai v. State of Bihar submitted that by amendment

brought in 2006, 2000 Act has been drastically amended. The Legislature

by bringing in Section 7A has clearly provided that the claim of juvenility

may be raised before any court and it shall be recognised at any stage,

even after the final disposal of the case and such claim shall be

determined in terms of the provisions contained in 2000 Act and the Rules

made thereunder, even if the juvenile has ceased to be so on or before

8 (2009) 15 SCC 259 19

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the commencement of the Act. He would submit that even if the question

of juvenility had not been raised by the juvenile even upto this Court and

there is some material to show that a person is a juvenile on the date of

commission of crime, it can be recognised at any stage even at the stage

of undergoing sentence. He agreed that inquiry cannot be initiated on the

basis of mere assertion of the claim. There must be prima facie material

to initiate the inquiry and once the prima facie test is satisfied, the

determination may be made in terms of Rule 12. With reference to Rule

12, learned senior counsel would submit that appearance, documents and

medical evidence are the only materials which are relevant for

determining the age and as such only such materials should form the

basis for forming an opinion about the prima facie case. The oral

evidence should rarely form the basis for initiation of proceeding as in

view of Rule 12, the said material can never be used in inquiry and thus

forming an opinion on that oral evidence will not serve the purposes of the

Act.

24. Learned counsel for the State of Bihar on the other hand

submitted that Legislature never intended to make Section 7A applicable

to this Court after the final disposal of the case. He submitted that there

was no provision in the Supreme Court Rules to re-open the concluded

appeals or SLPs. Moreover, when SLP is filed, it is mandatory that no

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new ground or document shall be relied upon which has not been the part

of record before the High Court and, therefore, if plea of juvenility has not

been raised before the High Court, it cannot be raised before this Court.

According to him, the power under the 2000 Act can be exercised only by

the Juvenile Board, Sessions Court or High Court after final disposal of

the case but not this Court. He, however, submitted that the Supreme

Court in exercise of its power under Article 142 may remand the matter to

such forums, if it appears expedient in the interest of justice.

25. The amendment in 2000 Act by the Amendment Act, 2006,

particularly, introduction of Section 7A and subsequent introduction of

Rule 12 in the 2007 Rules, was sequel to the Constitution Bench decision

of this Court in Pratap Singh v. State of Jharkhand and Another9 . In Hari

Ram3, a two-Judge Bench of this Court extensively considered the

scheme of 2000 Act, as amended by 2006 Amendment Act. With regard

to sub-rules (4) and (5) of Rule 12, this Court observed as follows :

“27. Sub-rules (4) and (5) of Rule 12 are of special significance in that they provide that once the age of a juvenile or child in conflict with law is found to be less than 18 years on the date of offence on the basis of any proof specified in sub-rule (3) the court or the Board or as the case may be the Child Welfare Committee appointed under Chapter IV of the Act, has to pass a written order stating the age of the juvenile or stating the status of the juvenile, and no further inquiry is to be conducted by the court or Board after examining and obtaining any other documentary proof referred to in sub-rule (3) of Rule 12. Rule 12, therefore, indicates the procedure to be followed to give effect to the

9 (2005) 3 SCC 551 21

Page 22

provisions of Section 7-A when a claim of juvenility is raised.”

26. This Court observed that the scheme of the 2000 Act was to

give children, who have, for some reason or the other, gone astray, to

realize their mistakes, rehabilitate themselves and rebuild their lives and

become useful citizens of the society, instead of degenerating into

hardened criminals. In paragraph 59 of the Report, the Court held as

under :

“59. The law as now crystallised on a conjoint reading of Sections 2(k), 2(l), 7-A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to 1-4-2001, would be treated as juveniles, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted.”

27. The Court observed in Hari Ram3 that often parents of

children, who come from rural backgrounds, are not aware of the actual

date of birth of a child, but relate the same to some event which might

have taken place simultaneously. In such a situation, the Board and the

Courts will have to take recourse to the procedure laid down in Rule 12.

28. The judgment in the case of Hari Ram3 was delivered by this

Court on 5.5.2009. On that very day, judgment in Akbar Sheikh2 was

delivered by a two-Judge Bench of which one of us (R.M. Lodha, J.) was

Page 23

a member. In Akbar Sheikh2 on behalf of one of the appellants, Kabir, a

submission was made that he was juvenile on the date of occurrence.

While dealing with the said argument, this Court observed that no such

question had ever been raised. Even where a similar question was raised

by five other accused, no such plea was raised even before the High

Court. On behalf of the appellant, Kabir, in support of the juvenility, two

documents were relied upon, namely, (i) statement recorded under

Section 313 of the Code and (ii) voters’ list. As regards the statement

recorded under Section 313, this Court was of the opinion that the said

document was not decisive. In respect of voters’ list, this Court observed

that the same had been prepared long after the incident occurred and it

was again not decisive. In view of these findings, this Court did not find

any merit in the claim of Kabir, one of the appellants, that he was juvenile

and the submission was rejected. From a careful reading of the judgment

in the matter of Akbar Sheikh2, it is clear that the two documents on which

reliance was placed in support of claim of juvenility were not found

decisive and, consequently, no inquiry for determination of age was

ordered. From the consideration of the matter by this Court in Akbar

Sheikh2, it is clear that the case turned on its own facts.

29. As a matter of fact, prior to the decisions of this Court in Hari

Ram3 and Akbar Sheikh2, a three-Judge Bench of this Court speaking

Page 24

through one of us (R.M. Lodha, J.) in Pawan8 had considered the

question relating to admissibility of claim of juvenility for the first time in

this Court with reference to Section 7A. The contention of juvenility was

raised for the first time before this Court on behalf of the two appellants,

namely, A-1 and A-2. The argument on their behalf before this Court was

that they were juvenile within the meaning of 2000 Act on the date of

incident and the trial held against them under the Code was illegal. With

regard to A-1, his school leaving certificate was relied on while as regards

A-2, reliance was placed on his statement recorded under Section 313

and the school leaving certificate. Dealing with the contention of juvenility,

this Court stated that the claim of juvenility could be raised at any stage,

even after final disposal of the case. The Court then framed the question

in paragraph 41 of the Report as to whether an inquiry should be made or

report be called for from the trial court invariably where juvenility is

claimed for the first time before this Court. It was held that where the

materials placed before this Court by the accused, prima facie, suggested

that he was ‘juvenile’ as defined in 2000 Act on the date of incident, it was

necessary to call for the report or an inquiry to be made for determination

of the age on the date of incident. However, where a plea of juvenility is

found unscrupulous or the materials lack credibility or do not inspire

confidence and even prima facie satisfaction of the court is not made out,

Page 25

further exercise in this regard may not be required. It was also stated that

if the plea of juvenility was not raised before the trial court or the High

Court and is raised for the first time before this Court, the judicial

conscience of the court must be satisfied by placing adequate material

that the accused had not attained the age of 18 years on the date of

commission of offence. In absence of adequate material, any further

inquiry into juvenility would not be required.

30. Having regard to the general guidelines highlighted in

paragraph 41 with regard to the approach of this Court where juvenility is

claimed for the first time, the court then considered the documents relied

upon by A-1 and A-2 in support of the claim of juvenility on the date of

incident. In respect of the two documents relied upon by A-2, namely,

statement under Section 313 of the Code and the school leaving

certificate, this Court observed that the statement recorded under Section

313 was a tentative observation based on physical appearance which

was hardly determinative of age and insofar as school leaving certificate

was concerned, it did not inspire any confidence as it was issued after A-2

had already been convicted and the primary evidence like entry from the

birth register had not been produced. As regards school leaving certificate

relied upon by A-1, this Court found that the same had been procured

after his conviction and no entry from the birth register had been

Page 26

produced. The Court was, thus, not prima facie impressed or satisfied by

the material placed on behalf of A-1 and A-2. Those documents were not

found satisfactory and adequate to call for any report from the Board or

trial court about the age of A-1 and A-2.

31. In Jitendra Singh alias Babboo Singh and another v. State of

Uttar Pradesh10, on behalf of the appellant, a plea was raised that he was

minor within the meaning of Section 2(k) of 2000 Act on the date of

commission of the offence. The appellant had been convicted for the

offences punishable under Sections 304-B and 498A IPC and sentenced

to suffer seven years’ imprisonment under the former and two years

under the latter. The appellant had got the bail from the High Court on

the ground of his age which was on medical examination certified to be

around seventeen years on the date of commission of the offence. One of

us (T.S. Thakur, J.) who authored the judgment for the Bench held that in

the facts and circumstances of the case, an enquiry for determining the

age of the appellant was necessary. This Court referred to the earlier

decisions in Gopinath Ghosh1, Bhoop Ram4 , Bhola Bhagat6 , Hari Ram3

and Pawan8 and then held that the burden of making out the prima facie

case had been discharged. In paragraphs 9, 10 and 11 of the Report, it

was held as under:

10 (2010) 13 SCC 523 26

Page 27

“9. The burden of making out a prima facie case for directing an enquiry has been in our opinion discharged in the instant case inasmuch as the appellant has filed along with the application a copy of the school leaving certificate and the marksheet which mentions the date of birth of the appellant to be 24-5-1988. The medical examination to which the High Court has referred in its order granting bail to the appellant also suggests the age of the appellant being 17 years on the date of the examination. These documents are sufficient at this stage for directing an enquiry and verification of the facts.

10. We may all the same hasten to add that the material referred to above is yet to be verified and its genuineness and credibility determined. There are no doubt certain telltale circumstances that may raise a suspicion about the genuineness of the documents relied upon by the appellant. For instance, the deceased Asha Devi who was married to the appellant was according to Dr. Ashok Kumar Shukla, Pathologist, District Hospital, Rae Bareilly aged 19 years at the time of her death. This would mean as though the appellant husband was much younger to his wife which is not the usual practice in the Indian context and may happen but infrequently. So also the fact that the appellant obtained the school leaving certificate as late as on 17-11-2009 i.e. after the conclusion of the trial and disposal of the first appeal by the High Court, may call for a close scrutiny and examination of the relevant school record to determine whether the same is free from any suspicion, fabrication or manipulation. It is also alleged that the electoral rolls showed the age of the accused to be around 20 years while the extract from the panchayat register showed him to be 19 years old.

11. All these aspects would call for close and careful scrutiny by the court below while determining the age of the appellant. The date of birth of appellant Jitendra Singh's siblings and his parents may also throw considerable light upon these aspects and may have to be looked into for a proper determination of the question. Suffice it to say while for the present we consider it to be a case fit for directing an enquiry, that direction should not be taken as an expression of any final opinion as regards the true and correct age of the appellant which matter shall have to be independently examined on the basis of the relevant material.”

Page 28

32. In Daya Nand v. State of Haryana11, this Court found that on

the date of occurrence the age of the appellant was sixteen years five

months and nineteen days and, accordingly, it was held that he could not

have been kept in prison to undergo the sentence imposed by the

Additional Sessions Judge and affirmed by the High Court. This Court set

aside the sentence imposed against the appellant and he was directed to

be released from prison.

33. In Lakhan Lal v. State of Bihar12, the question was about the

applicability of 2000 Act where the appellants were not juveniles within

the meaning of 1986 Act as they were above 16 years of age but had

not completed 18 years of age when offences were committed and even

when claim of juvenility was raised after they had attained 18 years of

age. This Court gave benefit of 2000 Act to the appellants and they were

directed to be released forthwith.

34. In Shah Nawaz v. State of Uttar Pradesh and another13, the

matter reached this Court from the judgment and order of the Allahabad

High Court. An F.I.R. was lodged against the appellant, Shah Nawaz,

and three others for the offences punishable under Sections 302 and 307

of IPC. The mother of the appellant submitted an application before the

Board stating that Shah Nawaz was minor at the time of alleged

11 (2011) 2 SCC 224 12 (2011) 2 SCC 251 13 (2011) 13 SCC 751

Page 29

occurrence. The Board after holding an enquiry declared Shah Nawaz a

juvenile under the 2000 Act. The wife of the deceased filed criminal

appeal against the judgment of the Board before the Additional Sessions

Judge, Muzaffarnagar. That appeal was allowed and the order of the

Board was set aside. Shah Nawaz preferred criminal revision before the

High Court against the order of the Additional Sessions Judge which was

dismissed giving rise to appeal by special leave before this Court. This

Court considered Rule 12 of 2007 Rules and also noted, amongst others,

the decision in Hari Ram3 and then on consideration of the documents,

particularly entry relating to the date of birth entered in the marksheet held

that Shah Nawaz was juvenile on the date of occurrence of the incident.

This Court in paragraphs 23 and 24 of the Report held as under:

“23. The documents furnished above clearly show that the date of birth of the appellant had been noted as 18-6-1989. Rule 12 of the Rules categorically envisages that the medical opinion from the Medical Board should be sought only when the matriculation certificate or school certificate or any birth certificate issued by a corporation or by any panchayat or municipality is not available. We are of the view that though the Board has correctly accepted the entry relating to the date of birth in the marksheet and school certificate, the Additional Sessions Judge and the High Court committed a grave error in determining the age of the appellant ignoring the date of birth mentioned in those documents which is illegal, erroneous and contrary to the Rules.

24. We are satisfied that the entry relating to date of birth entered in the marksheet is one of the valid proofs of evidence for determination of age of an accused person. The school leaving certificate is also a valid proof in determining

Page 30

the age of the accused person. Further, the date of birth mentioned in the High School marksheet produced by the appellant has duly been corroborated by the school leaving certificate of the appellant of Class X and has also been proved by the statement of the clerk of Nehru High School, Dadheru, Khurd-o-Kalan and recorded by the Board. The date of birth of the appellant has also been recorded as 18- 6-1989 in the school leaving certificate issued by the Principal of Nehru Preparatory School, Dadheru, Khurd-o- Kalan, Muzaffarnagar as well as the said date of birth mentioned in the school register of the said School at Sl. No. 1382 which have been proved by the statement of the Principal of that School recorded before the Board.”

In paragraph 26 of the Report, this Court observed that Rule 12 has

described four categories of evidence which gave preference to school

certificate over the medical report.

35. In Pawan8, , a 3-Judge Bench has laid down the standards for

evaluating claim of juvenility raised for the first time before this Court. If

Pawan8 had been cited before the Bench when criminal appeal of Abuzar

Hossain @ Gulam Hossain came up for hearing, perhaps reference would

not have been made. Be that as it may, in light of the discussion made

above, we intend to summarise the legal position with regard to Section

7A of 2000 Act and Rule 12 of the 2007 Rules. But before we do that, we

say a word about the argument raised on behalf of the State of Bihar that

claim of juvenility cannot be raised before this Court after disposal of the

case. The argument is so hopeless that it deserves no discussion. The

expression, ‘any court’ in Section 7A is too wide and comprehensive; it

includes this Court. Supreme Court Rules surely do not limit the 30

Page 31

operation of Section 7A to the courts other than this Court where the plea

of juvenility is raised for the first time after disposal of the case.

36. Now, we summarise the position which is as under:

(i) A claim of juvenility may be raised at any stage even after

final disposal of the case. It may be raised for the first time before this

Court as well after final disposal of the case. The delay in raising the

claim of juvenility cannot be a ground for rejection of such claim. The

claim of juvenility can be raised in appeal even if not pressed before the

trial court and can be raised for the first time before this Court though not

pressed before the trial court and in appeal court.

(ii) For making a claim with regard to juvenility after conviction,

the claimant must produce some material which may prima facie satisfy

the court that an inquiry into the claim of juvenility is necessary. Initial

burden has to be discharged by the person who claims juvenility.

(iii) As to what materials would prima facie satisfy the court

and/or are sufficient for discharging the initial burden cannot be

catalogued nor can it be laid down as to what weight should be given to a

specific piece of evidence which may be sufficient to raise presumption of

juvenility but the documents referred to in Rule 12(3)(a)(i) to (iii) shall

definitely be sufficient for prima facie satisfaction of the court about the

age of the delinquent necessitating further enquiry under Rule 12. The

Page 32

statement recorded under Section 313 of the Code is too tentative and

may not by itself be sufficient ordinarily to justify or reject the claim of

juvenility. The credibility and/or acceptability of the documents like the

school leaving certificate or the voters’ list, etc. obtained after conviction

would depend on the facts and circumstances of each case and no hard

and fast rule can be prescribed that they must be prima facie accepted or

rejected. In Akbar Sheikh2 and Pawan8 these documents were not found

prima facie credible while in Jitendra Singh10 the documents viz., school

leaving certificate, marksheet and the medical report were treated

sufficient for directing an inquiry and verification of the appellant’s age. If

such documents prima facie inspire confidence of the court, the court may

act upon such documents for the purposes of Section 7A and order an

enquiry for determination of the age of the delinquent.

(iv) An affidavit of the claimant or any of the parents or a sibling

or a relative in support of the claim of juvenility raised for the first time in

appeal or revision or before this Court during the pendency of the matter

or after disposal of the case shall not be sufficient justifying an enquiry to

determine the age of such person unless the circumstances of the case

are so glaring that satisfy the judicial conscience of the court to order an

enquiry into determination of age of the delinquent.

Page 33

(v) The court where the plea of juvenility is raised for the first

time should always be guided by the objectives of the 2000 Act and be

alive to the position that the beneficent and salutary provisions contained

in 2000 Act are not defeated by hyper-technical approach and the

persons who are entitled to get benefits of 2000 Act get such benefits.

The courts should not be unnecessarily influenced by any general

impression that in schools the parents/guardians understate the age of

their wards by one or two years for future benefits or that age

determination by medical examination is not very precise. The matter

should be considered prima facie on the touchstone of preponderance of

probability.

(vi) Claim of juvenility lacking in credibility or frivolous claim of

juvenility or patently absurd or inherently improbable claim of juvenility

must be rejected by the court at threshold whenever raised.

37. The reference is answered in terms of the position

highlighted in paragraph 36 (i) to (vi). The matters shall now be listed

before the concerned Bench(es) for disposal.

…………………….. J. (R.M. Lodha)

……………………….J. (Anil R. Dave)

NEW DELHI OCTOBER 10, 2012.

Page 34

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1193 OF 2006

Abuzar Hossain @ Gulam Hossain …Appellant

Versus

State of West Bengal …Respondent

WITH

CRIMINAL APPEAL NO.1397 OF 2003

SLP (Crl.) No.1451 OF 2003 R.P. (Crl.) No.390 of 2010 In SLP (Crl.) No.2542 of 2010

SLP (Crl.) No.8768 of 2011 SLP (Crl.) No.8855 of 2011

Criminal Appeal No.654 of 2002 SLP (Crl.) No.616 of 2012

J U D G M E N T

T.S. THAKUR, J.

I have had the advantage of going through the order

proposed by my esteemed brother R.M. Lodha J., which

summarises the legal position with remarkable lucidity.

While I entirely agree with whatever is enunciated in the

Page 35

judgment proposed by my erudite colleague, I wish to add

a few lines of my own confined to the proposition stated in

Para 36 (IV) of the judgment. In that paragraph of the

order fall cases in which the accused setting up the plea of

juvenility is unable to produce any one of the documents

referred to in Rule 12(3)(a) (i) to (iii) of the Rules, under

the Act, not necessarily because, he is deliberately

withholding such documents from the court, but because,

he did not have the good fortune of ever going to a school

from where he could produce a certificate regarding his

date of birth. Para 36 (IV) sounds a note of caution that an

affidavit of a parent or a sibling or other relative would not

ordinarily suffice, to trigger an enquiry into the question of

juvenility of the accused, unless the circumstances of the

case are so glaring that the court is left with no option

except to record a prima facie satisfaction that a case for

directing an enquiry is made out. What would constitute a

‘glaring case’ in which an affidavit may itself be sufficient to

direct an inquiry, is a question that cannot be easily

answered leave alone answered by enumerating

exhaustively the situations where an enquiry may be

Page 36

justified even in the absence of documentary support for

the claim of juvenility. Two dimensions of that question

may all the same be mentioned without in the least

confining the sweep of the expression ‘glaring case’ to a

strait-jacket formulation. The first of these factors is the

most mundane of the inputs that go into consideration

while answering a claim of juvenility like “Physical

Appearance” of the accused made relevant by Rule 12(2) of

the Rules framed under the Act. The Rule reads:

“12. Procedure to be followed in determination of Age. – (1) xxxx (2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.”

Physical appearance of the accused is, therefore, a

consideration that ought to permeate every determination

under the Rule aforementioned no matter appearances are

at times deceptive, and depend so much on the race or the

region to which the person concerned belongs. Physical

appearance can and ought to give an idea to the Court at

the stage of the trial and even in appeal before the High

Page 37

Court, whether the claim made by the accused is so absurd

or improbable that nothing short of documents referred to

in this Rule 12 can satisfy the court about the need for an

enquiry. The advantage of “physical appearance” of the

accused may, however, be substantially lost, with passage

of time, as longer the interval between the incident and the

court’s decision on the question of juvenility, the lesser the

chances of the court making a correct assessment of the

age of the accused. In cases where the claim is made in

this Court for the first time, the advantage is further

reduced as there is considerable time lapse between the

incident and the hearing of the matter by this Court.

The second factor which must ever remain present in

the mind of the Court is that the claim of juvenility may at

times be made even in cases where the accused does not

have any evidence, showing his date of birth, by reference

to any public document like the register of births

maintained by Municipal Authorities, Panchayats or

hospitals nor any certificate from any school, as the

accused was never admitted to any school. Even if

admitted to a school no record regarding such admission

Page 38

may at times be available for production in the Court.

Again there may be cases in which the accused may not be

in a position to provide a birth certificate from the

Corporation, the municipality or the Panchayat, for we

know that registration of births and deaths may not be

maintained and if maintained may not be regular and

accurate, and at times truthful. Rule 12(3) of the Rules

makes only three certificates relevant. These are

enumerated in Sub-Rule 3(a)(i) to (iii) of the Rule which

reads as under:

“(3)a (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

Non-production of the above certificates or any one of

them is not, however, fatal to the claim of juvenility, for

Sub-Rule 3(b) to Rule 12 makes a provision for

determination of the question on the basis of the medical

examination of the accused in the ‘absence’ of the

certificates. Rule 12(3)(b) runs as under:

Page 39

“12(3) (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court, or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.”

The expression ‘absence’ appearing in the above provision

is not defined under the Act or the Rules. The word shall,

therefore, be given its literal dictionary meaning which is

provided by Concise Oxford dictionary as under:

“Being away from a place or person; time of being away; non-existence or lack of; inattenation due to thought of other things.”

Black’s Law Dictionary also explains the meaning of

‘absence’ as under:

“1. The state of being away from one’s usual place of residence. 2. A failure to appear, or to be available and reachable, when expected. 3. Louisiana Law. The State of being an absent person – Also termed (in sense 3) absentia.”

It is axiomatic that the use of the expression and the

context in which the same has been used strongly suggests

that ‘absence’ of the documents mentioned in Rule 12(3)

(a)(i) to (iii) may be either because the same do not exist

Page 40

or the same cannot be produced by the person relying upon

them. Mere non-production may not, therefore, disentitle

the accused of the benefit of the Act nor can it tantamount

to deliberate non-production, giving rise to an adverse

inference unless the Court is in the peculiar facts and

circumstances of a case of the opinion that the non-

production is deliberate or intended to either mislead the

Court or suppress the truth.

It is in this class of cases that the court may have to

exercise its powers and discretion with a certain amount of

insight into the realities of life. One of such realities is that

illiteracy and crime have a close nexus though one may not

be directly proportional to the other. Juvenile delinquency

in this country as elsewhere in the world, springs from

poverty and unemployment, more than it does out of other

causes. A large number of those engaged in criminal

activities, may never have had the opportunity to go to

school. Studies conducted by National Crime Records

Bureau (NCRB), Ministry of Home Affairs, reveal that poor

education and poor economic set up are generally the main

attributes of juvenile delinquents. Result of the 2011 study

Page 41

further show that out of 33,887 juveniles arrested in 2011,

55.8% were either illiterate (6,122) or educated only till the

primary level (12,803). Further, 56.7% of the total

juveniles arrested fell into the lowest income category. A

similar study is conducted and published by B.N. Mishra in

his Book ‘Juvenile Delinquency and Justice System’, in

which the author states as follows:

“One of the prominent features of a delinquent is poor educational attainment. More than 63 per cent of delinquents are illiterate. Poverty is the main cause of their illiteracy. Due to poor economic condition they were compelled to enter into the labour market to supplement their family income. It is also felt that poor educational attainment is not due to the lack of intelligence but may be due to lack of opportunity. Although free education is provided to Scheduled Castes and Scheduled Tribes, even then, the delinquents had a very low level of expectations and aspirations regarding their future which in turn is due to lack of encouragement and unawareness of their parents that they play truant.”

What should then be the approach in such cases, is

the question. Can the advantage of a beneficial legislation

be denied to such unfortunate and wayward delinquents?

Can the misfortune of the accused never going to a school

be followed or compounded by denial of the benefit that the

legislation provides in such emphatic terms, as to permit an

enquiry even after the last Court has disposed of the appeal

Page 42

and upheld his conviction? The answer has to be in the

negative. If one were to adopt a wooden approach, one

could say nothing short of a certificate, whether from the

school or a municipal authority would satisfy the court’s

conscience, before directing an enquiry. But, then directing

an enquiry is not the same thing as declaring the accused

to be a juvenile. The standard of proof required is different

for both. In the former, the court simply records a prima

facie conclusion. In the latter the court makes a

declaration on evidence, that it scrutinises and accepts only

if it is worthy of such acceptance. The approach at the

stage of directing the enquiry has of necessity to be more

liberal, lest, there is avoidable miscarriage of justice.

Suffice it to say that while affidavits may not be generally

accepted as a good enough basis for directing an enquiry,

that they are not so accepted is not a rule of law but a rule

of prudence. The Court would, therefore, in each case

weigh the relevant factors, insist upon filing of better

affidavits if the need so arises, and even direct, any

additional information considered relevant including

information regarding the age of the parents, the age of

Page 43

siblings and the like, to be furnished before it decides on a

case to case basis whether or not an enquiry under Section

7A ought to be conducted. It will eventually depend on how

the court evaluates such material for a prima facie

conclusion that the Court may or may not direct an enquiry.

With these additions, I respectfully concur with the

judgment proposed by my esteemed Brother Lodha J.

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

New Delhi October 10, 2012