REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 16  OF 2010

Amit Singh      .... Petitioner(s)

Versus

State of Maharashtra & Anr.      .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) The petitioner has filed this writ petition under Article 32  

of  the  Constitution  of  India  praying  for  issuance  of  an  

appropriate writ in the nature of  habeas corpus directing the  

respondents to release him from Central Jail, Agra forthwith  

as  the  detention  is  contrary  to  the  fundamental  rights  

guaranteed under Article 21 of the Constitution of India and  

the  Juvenile  Justice  (Care  and  Protection  of  Children)  Act,  

2000 (hereinafter referred to as ‘the Act’).   

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2)   The facts of the case are:

(a) On 01.05.1999, at about 8.30 p.m., one Santosh Kumar  

(since deceased) along with his servant was returning to his  

house  with  daily  earning  cash  from  his  shop.   When  he  

reached near the hospital of Dr. Desh Pandey at Ahmednagar,  

two unknown persons came on a Motorcycle and demanded  

the money bag which was in his hand but he refused to give  

that  bag.   Thereafter,  the  pillion  rider  got  down  from  the  

Motorcycle and threatened to kill him if the bag is not given  

and taken out a revolver which was kept underneath his shirt  

and fired which resulted in injury on his chest.   In spite of the  

injury,  the  deceased  ran  towards  his  residence  which  was  

nearer  to  the  scene  of  occurrence  but  dashed  against  the  

window and fell down.  His relatives came out and took him to  

the Hospital where he was declared dead at about 9.05 p.m.   

(b)  A complaint was registered by the police bearing Crime  

Case No. I-96/1999 under Sections 307, 392, 341, 34, 506  

read  with  34  of  the  Indian  Penal  Code,  1860  (hereinafter  

referred to as “the IPC”) and Sections 3, 5, 25 and 27 of the  

Arms  Act,  1959.   The  Investigating  Officer  arrested  the  

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accused persons namely, Balu Rangnath Chintamani, Vithal  

Ramayya Madur, Intekhab Alam Abdul Salam Sain and Amit  

Singh Thakur,  the petitioner herein,  and Sessions Case No.  

150 of 1999 was registered against the said four accused in  

the Sessions Court, Ahmednagar.    

(c) The Additional Sessions Judge, Ahmednagar, vide order  

dated  16.04.2001  held  all  the  four  accused  persons  to  be  

guilty of offences punishable under Sections 396, 506, 341,  

379 read with Section 120-B of  IPC and sentenced each of  

them  to  suffer  life  imprisonment  and  to  pay  a  fine  of  

Rs.3000/- and also under Section 3 read with Section 25(1-B)  

and Section 5 read with Section 27 of the Arms Act, 1959 and  

sentenced them to suffer rigorous imprisonment for 5 years  

and to pay a fine of Rs.3000/-.     

(d) Against  the  said  judgment,  all  the  four  accused  filed  

appeals before the High Court.  The High Court, by judgment  

dated 05.08.2005, allowed the appeals filed by A-2 and A-3  

and  dismissed  the  appeals  filed  by  A-1  and  A-4  (appellant  

herein).   

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(e) Challenging  the  said  judgment  of  the  High  Court,  the  

appellant filed Special Leave Petition (Crl.) No. 1114 of 2006  

before this Court which was dismissed on 05.01.2007.  

3) Heard Mr. Brijender Chahar, learned senior counsel for  

the petitioner and Mr. Shankar Chillarge, learned counsel for  

the  State-respondent  No.1  and  Mr.  Ameet  Singh,  learned  

counsel for respondent No.2.  

4) This writ petition is filed by the petitioner praying that he  

was a Juvenile at the time of the alleged offence and therefore,  

he could be tried only by the Juvenile Justice Board (in short  

‘the Board’).  

5) According  to  the  petitioner,  he  had  not  completed  18  

years of age as on the date of commission of the offence, i.e.,  

01.05.1999,  though  he  had  completed  18  years  as  on  

01.04.2001  i.e.  the  date  of  implementation  of  the  Act.  

According to amending Act 33/2006 in the Act, the benefit of  

juvenility shall be extended to the petitioner.  It was further  

stated that he is entitled to get the benefit  of  the said law,  

which was after due consideration by this Court in the case of  

Hari  Ram vs.  State of  Rajasthan and Others,  (2009)  13  

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SCC 211 settled the position, whereby this Court gave effect to  

the Proviso and the Explanation to Sections 20 and 7A which  

were introduced by the above said Amending Act by applying  

the provisions of the Act with retrospective effect.  Accordingly,  

it is prayed that the petitioner is entitled to get the benefit of  

the Act, even after final conviction.  

6) We  have  already  adverted  to  in  the  earlier  paras  

regarding the petitioner’s involvement in the criminal charges  

framed  against  him  and  the  orders  of  conviction  imposed.  

From the materials, it is seen that the petitioner Amit Singh  

s/o  late  Bhikamsingh  Thakur  was  born  on  10.05.1982  in  

Jhansi,  U.P.  and  his  date  of  birth  is  registered  with  the  

Registrar,  Births and Death, Nagar Palika Parishad, Jhansi.  

According to the record of Nagar Palika Parishad, Jhansi, the  

date  of  birth  certificate  of  the  petitioner  is  recorded  as  

10.05.1982  bearing  registration  No.  1184/97  dated  

04.08.1997.   The  petitioner  has  produced  a  copy  of  birth  

certificate (Annexure-P1) issued by the Registrar, Nagar Palika  

Parishad, Jhansi.  A perusal of the birth certificate issued by  

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the competent authority clearly shows that his date of birth is  

10.05.1982.   

7) Further information from the materials placed shows that  

the  petitioner  started  his  studies  from  St.  Mark’s  College,  

Jhansi w.e.f.  12.06.1985.  He left the school on 27.05.1996  

and obtained a Transfer Certificate mentioning that his date of  

birth is recorded as 10.05.1982 in the admission register of  

the school.   Transfer Certificate dated 14.06.1997 issued by  

the Principal, St. Mark’s College, Jhansi has been marked as  

Annexure-P2.  A perusal of the said Transfer Certificate clearly  

shows that his date of birth is 10.05.1982 and the same was  

duly  noted  by  the  School  Authorities  with  the  seal  and  

signature of the Principal, St. Mark’s College, Jhansi.  Apart  

from the above materials, when the petitioner was arrayed as  

accused in Criminal Case No. 64 of 1997 entitled Amit Singh  

vs.  State of M.P. he moved an application for bail being No.  

935  of  1997  before  the  Special  Judge,  Murena,  M.P.   The  

learned Special  Judge considered the above-mentioned High  

School  Certificate,  birth  certificate,  report  of  Civil  Surgeon,  

report of Dental Surgeon, affidavit of his mother Shakuntala  

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Bai and report of Radiologist.  The Special Judge, relying upon  

the above-mentioned reports, found that the date of birth of  

the petitioner is 10.05.1982 and his age was below 16 years  

on the date of occurrence, directed the police to produce him  

before the Juvenile Court for further action.  Copy of the said  

order dated 13.08.1987 passed by the Special Judge, Murena  

is placed before this Court (Annexure-P3).   A perusal of the  

order  of  the  Special  Judge,  Murena  also  shows  that  

considering various materials relating to the date of birth of  

the petitioner, he had concluded that the date of birth of the  

petitioner is 10.05.1982 and the alleged incident took place on  

01.05.1999,  on  the  date  of  the  occurrence,  the  age  of  the  

petitioner was 16 years 11 months and 21 days.  The Act came  

into  effect  from  01.04.2001  which  provides  that  juvenile  

means who has not completed 18 years of age as substituted  

for 16 years which was the position under the old Act of 1986.  

According to the Act, the petitioner was juvenile at the time of  

commission of offence because he had not completed 18 years  

of age on the date of offence, and therefore, the petitioner is  

entitled to get the benefit of provisions under Sections 2(l), 7A,  

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20 and 64 of the Act.  

8) The petitioner-(A-4) was convicted for the offence under  

Sections 307, 392, 341, 34, 506 read with Section 34 IPC and  

Sections 3, 5, 25 and 27 of the Arms Act and sentenced him to  

life imprisonment with fine of Rs.3,000/-.  Though the above  

said  conviction  and  sentence  was  confirmed  by  this  Court,  

vide its impugned judgment and order dated 05.01.2007, the  

age  of  the  petitioner  and  the  benefit  of  the  Act  was  not  

considered by this Court.  No doubt, this plea and the benefit  

was not claimed by the petitioner earlier neither the same was  

raised before the trial Court nor thereafter up to this Court.  

We have already observed that from the materials placed, the  

petitioner had substantiated that he was a juvenile as per the  

Act and he could be tried only by the Board and hence the  

matter  should  be  referred  before  the  Board  for  trial.   It  is  

further seen that the proceedings were started against him on  

01.05.1989 before the regular Court and during the pendency  

of  the  trial,  the  Act  was  enacted  and  it  is  his  claim  that  

inadvertently he was not advised that he is entitled to get the  

benefit  under  the  Act  after  the  enactment  because  he  had  

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already completed the age of 18 years as on 01.04.2001.  It is  

relevant  to  point  out  that  the  applicability  of  the  Act  was  

clarified by Amending Act 33/2006 which provided that the  

benefit of juvenility shall be extended even to juvenile who had  

completed the age of 18 years on 01.04.2001 and the Act shall  

have retrospective effect.  

9) The  relief  prayed  for  in  this  writ  petition  is  squarely  

covered by the law laid down in the case of Hari Ram (supra)  

whereby  this  Court  had  occasion  to  consider  the  question  

elaborately  regarding  applicability  of  the  Act.   This  Court  

considered the decision of the Constitution Bench in the case  

of  Pratap Singh vs.  State of Jharkhand & Anr., (2005) 3  

SCC  551,  wherein  this  Court  formulated  two  points  for  

consideration:

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 is initiated under the 1986 Act  

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and pending  when the  Act  of  2000  was  enforced  

with effect from 01.04.2001?

The Constitution Bench in the above case held that the benefit  

of  juvenility  cannot  be  extended  to  the  person  who  has  

completed the 18 years of age as on 01.04.2001 i.e. the date of  

enforcement of the Act.  In the background of this judgment,  

the Legislature brought Amendment Act 33/2006 proviso and  

explanation  in  Section  20  to  set  at  rest  doubts  that  have  

arisen with regard to the applicability of the Act to the cases  

pending on 01.04.2001, where a juvenile, who was below 18  

years  of  age  at  the  time of  commission  of  the  offence,  was  

involved.  The explanation to Section 20 which was added in  

2006 makes it  clear that in all  pending cases, which would  

include not  only trials  but  even subsequent  proceedings by  

way of revision or appeal, the determination of juvenility of a  

juvenile would be in terms of clause (l)  of Section 2, even if  

juvenile ceased to be a juvenile on or before 01.04.2001, when  

the Act 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  

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committed.   Section  20  enables  the  Court  to  consider  and  

determine the juvenility of a person even after conviction by  

the  regular  court  and  also  empowers  the  court,  while  

maintaining the conviction, to set aside the sentence imposed  

and  forward  the  case  to  the  Board  concerned  for  passing  

sentence in accordance with the provisions of the Act.  

10) After the judgment of the Constitution Bench in Pratap  

Singh (supra),  this  Court  in the case of  Hari Ram (supra)  

considered  the  above  question  of  law  in  the  light  of  

Amendment Act 33 of 2006 in the provisions of the Act which  

substituted Section 2(l)  to define a “juvenile  in conflict  with  

law” as 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  such  offence”.   By  way  of  Amendment  Act  

33/2006, Section 7A was inserted which reads as follows:-

“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:

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Provided that a claim of juvenility may be raised before  any court and it shall be recognized 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. “

It  is clear from the above provision, namely, Section 7A the  

claim of juvenility to be raised before any court at any stage,  

even after final disposal of the case and sets out the procedure  

which  the  court  is  required  to  adopt,  when  such  claim  of  

juvenility is raised.  Apart from the aforesaid provisions of the  

Act as amended, and the Juvenile Justice (Care and Protection  

of  Children)  Rules,  2007,  (in  short  ‘the  Rules’)  Rule  98,  in  

particular, has to be read along with Section 20 of the Act as  

amended by the Amendment Act,  2006 which provides that  

even after disposal of cases of juveniles in conflict with law,  

the State Government or the Board could, either  suo motu or  

on an application made for  the purpose,  review the case of  

juvenile,  determine  the  juvenility  and  pass  an  appropriate  

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order under Section 64 of the Act for immediate release of the  

juvenile whose period of detention had exceeded the maximum  

period provided in Section 15 of the Act i.e. 3 years.  All the  

above relevant provisions including the amended provisions of  

the Act and the Rules have been elaborately considered by this  

Court in Hari Ram (supra).  

11) We have already referred to the entry relating to the date  

of birth of the petitioner in the Birth Certificate (Annexure-P1),  

entry relating to his date of birth in the Transfer Certificate  

(Annexure-P2), date of birth recorded in the mark sheet issued  

by the Council for the Indian School Certificate Examinations.  

In all these documents, his date of birth has been recorded as  

10.05.1982  and  duly  certified  and  authenticated  by  the  

authorities concerned.  In a recent decision of this Court dated  

05.08.2011 in Criminal Appeal No. 1531 of 2011 arising out of  

SLP (Criminal) No. 3361 of 2011,  Shah Nawaz vs.  State of  

U.P. while considering similar documents, namely, certificate  

issued by the School Authorities and basing reliance on Rule  

12 of the Rules held that all those documents are relevant and  

admissible in evidence.  Inasmuch as the date of birth of the  

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petitioner is 10.05.1982 and on the date of the alleged incident  

which took place  on 01.05.1999,  his  age was 16 years,  11  

months and 21 days i.e. below 18 years, hence on the date of  

the incident, the petitioner was a juvenile in terms of the Act  

because he had not completed 18 years of age and is entitled  

to get the benefit of provisions under Sections 2(l), 7A, 20 and  

64 of the Act.  It is also specifically asserted that the petitioner  

had already undergone 12 years in jail  since then which is  

more than the maximum period for which a juvenile may be  

confined to a special home.  

12) Under these circumstances, the petitioner is directed to  

be released from the custody forthwith.  The writ petition is  

allowed.                   

 ...…………….…………………………J.            (P. SATHASIVAM)                                   

    .…....…………………………………J.    (DR. B.S. CHAUHAN)  

NEW DELHI; AUGUST 08, 2011.     

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