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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 763 OF 2003

Jitendra Singh @ Babboo Singh  & Anr.     ... Appellants

Versus

State of U.P.     ... Respondent

J U D G M E N T

Madan B. Lokur, J.

1. Three  principal  issues  arise  for  consideration  in  this  

appeal. The first is whether the appellant was a juvenile  

or  a  child  as  defined  by  Section  2(k)  of  the  Juvenile  

Justice (Care and Protection of Children) Act, 2000 on  

the date of occurrence of the offence he was charged  

with. On a consideration of the Report called for by this  

Court on this question, the issue must be answered in  

the affirmative.   

2. The second is whether the conviction of the appellant  

can be sustained on merits and, if so, the sentence to  

be  awarded  to  the  appellant.   In  our  opinion  the  

conviction of the appellant must be upheld and on the

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quantum  of  sentence,  he  ought  to  be  dealt  with  in  

accordance  with  the  provisions  of  Section  20  of  the  

Juvenile Justice (Care and Protection of  Children)  Act,  

2000 read with Section 15 thereof.

3. The third question is whether any appropriate measures  

can be taken to prevent the recurrence of a situation,  

such as the present, where an accused is subjected to a  

trial by a regular Court having criminal jurisdiction but  

he or she is later found to be a juvenile. In this regard,  

we  propose  to  give  appropriate  directions  to  all  

Magistrates  which,  we  hope,  will  prevent  such  a  

situation from arising again.

The facts:

4. On the midnight of 23rd / 24th May 1988 it is alleged that  

Asha Devi  was set on fire by the appellants and two  

other  persons.   A  demand for  dowry,  which  she was  

unable to meet, resulted in the unfortunate incident.  

5. On 24th May 1988 at about 5 a.m., Asha Devi’s uncle  

came to know of the incident and he lodged a complaint  

with the local police.  In the meanwhile, Asha Devi had

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been  taken  to  the  District  Hospital  where  she  

succumbed to the burns.  

6. After completing the investigation, the local police filed  

a charge sheet on 10th July 1988 against the appellants  

and  two  other  persons.  The  charge  sheet  alleged  

offences  committed  under  Section  147,  Section  302,  

Section  304-B and Section  498-A  of  the  Indian  Penal  

Code (for short the ‘IPC’).  

7. Thereafter the case proceeded to trial and the Sessions  

Judge,  Rae  Bareli  in  S.T.  No.  186  of  1988  delivered  

judgment on 30th August 1990 convicting the appellants  

and acquitting the other  two persons.  The appellants  

were convicted under Section 304-B of the IPC (dowry  

death)  and  sentenced  to  undergo  7  years  rigorous  

imprisonment.  They were also convicted under Section  

498-A of the IPC (husband or relative of husband of a  

woman  subjecting  her  to  cruelty)  and  sentenced  to  

undergo 2 years rigorous imprisonment and to pay a  

fine of Rs.100/- each.

8. Feeling aggrieved by their conviction and sentence, the  

appellants preferred Criminal Appeal No. 464 of 1990 in

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the Lucknow Bench of the Allahabad High Court. By its  

judgment and order dated 23rd May 2003 the High Court  

dismissed the Criminal Appeal. This is reported as 2003  

(3) ACR 2431=MANU/UP/2115/2003.  

9. Against  the  judgment  and  order  passed  by  the  

Allahabad High Court the appellants came up in appeal  

to  this  Court.   It  may  be  mentioned  that  during  the  

pendency of this appeal the second appellant (father of  

the first appellant) died and therefore only the appeal  

filed by the first appellant, the husband of Asha Devi,  

survives.  

10. During the pendency of these proceedings the  

appellant  filed  Criminal  Miscellaneous  Petition  No.  

16974  of  2010  for  raising  additional  grounds.   He  

sought to contend that on the date of commission of  

the  offence,  he  was  a  juvenile  or  child  within  the  

meaning of that expression as defined in Section 2(k) of  

the  Juvenile  Justice  (Care  and  Protection  of  Children)  

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

According to  the  appellant  his  date  of  birth  was 31st

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August 1974 and therefore, when the offence is alleged  

to have been committed, he was about 14 years of age.  

11. The  application  for  urging  additional  grounds  

was considered by this Court and by an order dated 19th  

November 2010 it was held, while relying upon Pawan  

v.  State of Uttaranchal,  (2009) 15 SCC 259 that  

prima facie there was material which necessitated an  

inquiry into the claim of the appellant that he was a  

juvenile  at  the  time  of  commission  of  the  offence.  

Accordingly, the following direction was given:  

“In the result we allow the appellant to urge  the additional ground regarding juvenility of the  appellant on the date of the commission of the  offence  and  direct  the  Trial  Court  to  hold  an  enquiry into the said question and submit a report  as  expeditiously  as  possible,  but  not  later  than  four months from today.  We make it clear that  the  Trial  Court  shall  be  free  to  summon  the  concerned  School,  Panchayat  or  the  Electoral  office record or any other record from any other  source which it considers necessary for a proper  determination of  the age of  the appellant.   We  also make it clear that in addition to the above,  the  Trial  Court  shall  be  free  to  constitute  a  Medical Board comprising at least three experts  on the subject for determination of the age of the  appellant,  based  on  medical  tests  and  examination.”

Report of the Additional Sessions Judge:

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12. The Additional Sessions Judge, Rae Bareli acted  

on the order dated 19th November 2010 and registered  

the proceedings as Miscellaneous Case No. 1 of 2010.  

He then submitted his Report dated 18th February 2011  

in which he accepted the claim of the appellant that his  

date  of  birth  was  31st August  1974.  As  such,  the  

appellant was a juvenile on the date of commission of  

the offence.  

13. For  the purposes  of  preparing his  Report,  the  

Additional Sessions Judge examined several witnesses  

including A.P.W. 1 Samar Bahadur Singh, Principal, Pre-

Middle  School,  Sohai  Bagh  who  produced  the  school  

admission register  pertaining to  the admission of  the  

appellant in the school.  The register showed the date  

of birth of the appellant as 31st August 1974 and the  

Additional  Sessions Judge found that  the register  had  

not been tampered with.  

14. The  Additional  Sessions  Judge  also  examined  

A.P.W. 11 Dr. Birbal who was a member of the Medical  

Board constituted by him. The Medical Board examined  

the appellant on 24th December 2010 and gave his age

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as about 40 years. Reference in this context was also  

made to an ossification test conducted on the appellant  

while he was in judicial custody in the District Jail in Rae  

Bareli during investigation of the case. The ossification  

test  was  conducted  on  8th July  1988  and  that  

determined the appellant’s age as about 17 years.  

15. At this stage, it may be mentioned that on the  

basis of the ossification test the appellant had applied  

for  bail  before  the  Additional  Sessions  Judge  in  Rae  

Bareli  being  Bail  Application  No.  435  of  1988.   The  

Additional Sessions Judge noted that while the age of  

the appellant was determined at about 17 years by the  

Chief  Medical  Officer,  there  could  be  a  difference  of  

about  2  years  either  way  and  therefore  by  an  order  

dated  13th July  1988  the  application  for  bail  was  

rejected.  

16. The appellant then moved the Lucknow Bench  

of the Allahabad High Court by filing a bail application  

which  was  registered  as  Criminal  Miscellaneous  Case  

No. 1859(B) of 1988.  By an order dated 25th November  

1988  the  Allahabad  High  Court  granted  bail  to  the

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appellant while holding, inter alia, that it was difficult to  

discard  the  opinion  of  the  Chief  Medical  Officer  

regarding the appellant’s age.  

17. Coming  back  to  the  Report,  the  Additional  

Sessions Judge also examined A.P.W. 5 Pankulata the  

younger sister of deceased Asha Devi.  She stated that  

Asha  Devi  was  about  4  or  5  years  older  than  the  

appellant and that it  was not unknown, apparently in  

their  community,  for  the  wife  to  be  older  than  the  

husband.  The record of the case shows that Asha Devi  

died at the age of about 19 after having been married  

for about 4½ years.  This would mean that the appellant  

was married to Asha Devi when he was about 9 years  

old and that on the date of the incident he was about 14  

years old.  

18. The  Additional  Sessions  Judge  also  examined  

A.P.W. 8 Sanoj Singh, husband of Pankulata, who gave a  

statement in tune with that of his wife.  The Additional  

Sessions  Judge  also  examined  A.P.W.  9  Narendra  

Bahadur Singh husband of A.P.W. 10 Kanti Singh.  All  

these witnesses stated to the effect that apparently in

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their  community  the  wife  is  normally  older  than  the  

husband at the time of marriage.  All these persons also  

produced  proof  of  their  age  to  show  that  the  wife  

(A.P.W.  5  Pankulata  and  A.P.W.  10  Kanti  Singh)  was  

older than her husband at the time of their marriage.   

19. On  the  basis  of  the  material  before  him,  the  

Additional  Sessions  Judge  accepted  the  claim  of  the  

appellant that he was younger than his wife at the time  

of marriage and that his date of birth was 31st August  

1974.  

20. Objections have been filed to this Report by the  

State of Uttar Pradesh, but the only objection taken is  

that the documents pertaining to the education of the  

appellant  were produced after  a  great  delay and not  

immediately.  It was also submitted that it is improbable  

that a girl of about 15 years of age would get married to  

a boy of about 9 years of age.  

21. The  Report  given  by  the  Additional  Sessions  

Judge has been examined with the assistance of learned  

counsel and there is no reason to reject it.  While the  

circumstances are rather unusual, the fact remains that

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there is documentary evidence to show from the school  

admission register (which has not been tampered with)  

that  the date of  birth  of  the appellant  is  31st August  

1974.   That  apart,  the  medical  examination  of  the  

appellant  conducted  on  8th July  1988  less  than  two  

months  after  the  incident,  also  shows  his  age  to  be  

about 17 years.  This was not doubted by the Additional  

Session Judge while rejecting the bail application of the  

appellant and was also not doubted by the Allahabad  

High Court while granting bail to him.  Therefore, it does  

appear that the appellant was about 17 years of age  

when the incident had occurred and that he had set up  

a claim of being a juvenile or child soon after his arrest  

and before the charge sheet was filed. In other words,  

the  appellant  was  a  juvenile  or  a  child  within  the  

meaning of that expression as defined in Section 2(k) of  

the Act.

Should the conviction be upheld:

22. The  next  question  that  arises  is  whether  the  

conviction  of  the  appellant  is  justified  or  not.  Before  

examining the evidence on record,  it  is  necessary  to

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mention that both the Trial Court as well as the High  

Court have concurrently found that the appellants had  

demanded  dowry  from  Asha  Devi  and  that  she  had  

been  set  on  fire  for  not  having  complied  with  the  

demands for dowry.

23. Section  304-B  of  the  IPC  which  is  the  more  

serious offence for which the appellant has been found  

guilty, reads as follows:

“304-B. Dowry death.—(1) Where the death of a  woman is caused by any burns or bodily injury or  occurs otherwise than under normal circumstances  within seven years of her marriage and it is shown  that soon before her death she was subjected to  cruelty  or  harassment  by  her  husband  or  any  relative of her husband for, or in connection with,  any demand for dowry, such death shall be called  “dowry death”, and such husband or relative shall  be deemed to have caused her death.

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

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

24. A plain reading of this section, which explains a  

dowry death, makes it clear that its ingredients are (a)  

the death of a woman is caused by burns or a bodily

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injury  or  that  it  occurs  otherwise  than  under  normal  

circumstances; (b) the death takes place within seven  

years of her marriage; (c) the woman was subjected,  

soon before her death, to cruelty or harassment by her  

husband  or  any  relative  of  her  husband  for,  or  in  

connection with, any demand for dowry.

25. In the present case, both the Trial Court and the  

High Court have found that Asha Devi had died of burn  

injuries as per the medical evidence; she had been set  

on fire on the midnight of 23/24 May 1988 and taken to  

the hospital at about 4 a.m. on 24th May 1988 where  

she succumbed to the burn injuries at about 5.30 a.m.;  

she had been married to the appellant  for  about 4½  

years before her death; and that the evidence of PW-1  

Ram  Bahadur  (uncle  of  Asha  Devi)  and  PW-3  Tej  

Bahadur  Singh  (father  of  Asha  Devi)  disclosed  that  

demands were being made by the appellants for dowry  

soon before her death.  Apart from cash, a demand was  

made by the in-laws of Asha Devi for a gold chain and a  

horse.   Since  the  demands  were  not  complied  with,  

Asha Devi  was frequently beaten and harassed.   She

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had brought this to the notice of her uncle as well as  

her father.  In fact, before her demise, she had written a  

letter to her father about the beating and harassment  

given  to  her  due  to  the  inability  to  meet  the  dowry  

demands.   The letter  was proved by  the prosecution  

and was relied on by the Trial Court as well as the High  

Court  in  accepting  the  version  of  the  prosecution.  

Clearly, therefore, the ingredients of Section 304-B of  

the IPC were made out.

26. However, the case put up by the appellant was  

that Asha Devi had accidentally caught fire while she  

was cooking and therefore it was a case of accidental  

death.  This was not accepted by both the Trial Court as  

well as the High Court since there was no explanation  

given for the delay of about 4 hours in taking Asha Devi  

to the hospital if the case was really one of accidental  

death.  Moreover, there was nothing to suggest that the  

appellant  or  anyone  in  the  family  had  made  any  

attempt to extinguish the fire.

27. There  is  no  doubt,  on  the  basis  of  the  facts  

found by the Trial Court as well as the High Court from

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the evidence on record that a case of causing a dowry  

death  had  convincingly  been  made  out  against  the  

appellant.  There is no apparent reason to disturb the  

concurrent findings of fact arrived at by the Trial Court  

and  the  High  Court  and  so  the  conviction  of  the  

appellant must be upheld.

Sentence to be awarded:

28. On the sentence to be awarded to a convict who  

was a juvenile when he committed the offence, there is  

a dichotomy of views.  

29. In the first category of cases, the conviction of  

the juvenile was upheld but the sentence quashed. In  

Jayendra v. State of Uttar Pradesh, (1981) 4 SCC  

149  the  conviction  of  the  appellant  was  confirmed  

though he was held to be a child as defined in Section  

2(4) of the Uttar Pradesh Children Act, 1951. However,  

he was not sent to an ‘approved school’ since he was  

23 years old by that time. His sentence was quashed  

and he was directed to be released forthwith.

30. Similarly,  in  Bhoop  Ram  v.  State  of  U.P.  

(1989)  3  SCC  1 this  Court  followed  Jayendra  and

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while upholding the conviction of the appellant who was  

28 years old by that time, the sentence awarded to him  

was quashed.

31. In  Pradeep Kumar  v.  State  of  U.P.,  1995  

Supp (4) SCC 419  yet another case under the Uttar  

Pradesh  Children  Act,  1951  the  conviction  of  the  

appellant was upheld but since he was 30 years old by  

that time, his sentence was set aside.  

32. In  Bhola  Bhagat  and  other  v.  State  of  

Bihar,  (1997)  8  SCC  720 the  conviction  of  the  

appellant  was upheld  by this  Court  but  the sentence  

was  quashed  keeping  in  mind  the  provisions  of  the  

Bihar Children Act,  1970 read with the Bihar Children  

Act, 1982 and the Juvenile Justice Act, 1986.

33. In Upendra Kumar v. State of Bihar, (2005)   

3  SCC  592  this  Court  followed  Bhola  Bhagat  and  

upheld the conviction of the appellant but quashed the  

sentence awarded to him.  

34. In  Gurpreet  Singh  v.  State  of  Punjab,   

(2005)  12  SCC  615 one  of  the  appellants  was  a  

juvenile within the meaning of that expression occurring

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in Section 2(h) of the Juvenile Justice Act, 1986.  This  

Court  held that  if  the accused was a juvenile on the  

date of occurrence and continues to be so, then in that  

event  he  would  have  to  be  sentenced  to  a  juvenile  

home. However, if on the date of sentence, the accused  

is no longer a juvenile, the sentence imposed on him  

would  be  liable  to  be  set  aside.  In  this  context,  

reference was made to Bhoop Ram.

35. Finally  in  Vijay  Singh  v.  State  of  Delhi,   

(2012) 8 SCC 763 the conviction of the appellant was  

upheld  but  the  sentence  was  quashed  since  he  was  

about 30 years old by that time.  

36. The second category of cases includes  Satish  

@ Dhanna v. State of Madhya Pradesh, (2009) 14  

SCC 187  wherein the conviction of the appellant was  

upheld but the sentence awarded was modified to the  

period  of  detention  already  undergone.  Similarly,  in  

Dharambir v. State (NCT of Delhi), (2010) 5 SCC  

344 the conviction of the appellant was sustained but  

since  the  convict  had undergone two years  and four

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months of incarceration, the sentence awarded to him  

was quashed.

37. The third category of cases includes Hari Ram  

v. State of Rajasthan, (2009) 13 SCC 211 wherein  

the appellant was held to be a juvenile on the date of  

commission  of  the  offence.  His  appeal  against  his  

conviction was allowed and the entire case remitted to  

the  Juvenile  Justice  Board  for  disposal  in  accordance  

with law.

38. In Daya Nand v. State of Haryana, (2011) 2  

SCC 224 this Court followed  Hari Ram and directed  

the appellant to be produced before the Juvenile Justice  

Board for passing appropriate orders in accordance with  

the  provisions  of  the  Juvenile  Justice  (Care  and  

Protection of Children) Act, 2000.  

39. The fourth category of cases includes Ashwani  

Kumar  Saxena  v.  State  of  Madhya  Pradesh,   

(2012)  9  SCC  750 in  which  the  conviction  of  the  

appellant was upheld and the records were directed to  

be placed before the Juvenile Justice Board for awarding  

suitable punishment to the appellant.

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40. The sum and substance of the above discussion  

is  that  in  one set  of  cases  this  Court  has  found  the  

juvenile  guilty  of  the  crime  alleged  to  have  been  

committed by him but he has gone virtually unpunished  

since this Court quashed the sentence awarded to him.  

In another set of cases, this Court has taken the view,  

on the facts of the case that the juvenile is adequately  

punished for the offence committed by him by serving  

out some period in detention. In the third set of cases,  

this Court has remitted the entire case for consideration  

by the jurisdictional Juvenile Justice Board, both on the  

innocence  or  guilt  of  the  juvenile  as  well  as  the  

sentence to be awarded if the juvenile is found guilty. In  

the fourth set  of  cases,  this  Court  has  examined the  

case  on  merits  and  after  having  found  the  juvenile  

guilty  of  the  offence,  remitted  the  matter  to  the  

jurisdictional  Juvenile  Justice  Board  on  the  award  of  

sentence.  

41. In our opinion, the course to adopt is laid down  

in Section 20 of the Juvenile Justice (Care and Protection  

of Children) Act, 2000. This reads as follows:

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“20.  Special  provision  in  respect  of  pending  cases.—Notwithstanding anything contained in  this  Act, all proceedings in respect of a juvenile pending  in any court in any area on the date on which this Act  comes into force in that area, shall be continued in  that court as if this Act had not been passed and if  the court finds that the juvenile has committed an  offence,  it  shall  record such finding and instead of  passing  any  sentence  in  respect  of  the  juvenile,  forward the juvenile to  the Board which shall  pass  orders in respect of that juvenile in accordance with  the provisions of this Act as if it had been satisfied on  inquiry under this Act that a juvenile has committed  the offence:

Provided that the Board may, for any adequate and  special reason to be mentioned in the order, review  the case and pass appropriate order in the interest of  such juvenile.

Explanation.-In  all  pending  cases  including  trial,  revision, appeal or any other criminal proceedings in  respect of a juvenile in conflict with law, in any court,  the determination of juvenility of such a juvenile shall  be  in  terms of  clause (l)  of  Section 2,  even if  the  juvenile  ceases  to  be  so  on  or  before  the  date  of  commencement of this Act and the provisions of this  Act shall apply as if the said provisions had been in  force, for all purposes and at all material times when  the alleged offence was committed.”

42. It is clear that the case of the juvenile has to be  

examined on merits. If it found that the juvenile is guilty  

of  the  offence  alleged  to  have  been  committed,  he  

simply  cannot  go  unpunished.   However,  as  the  law  

stands,  the punishment to  be awarded to him or  her  

must be left  to  the Juvenile Justice Board constituted

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under  the  Juvenile  Justice  (Care  and  Protection  of  

Children)  Act,  2000.  This  is  the  plain  requirement  of  

Section 20 of the Juvenile Justice (Care and Protection of  

Children) Act, 2000. In other words,  Ashwani Kumar  

Saxena should be followed.  

43.  In the present case, the offence was committed  

by  the  appellant  when the  Juvenile  Justice  Act,  1986  

was  in  force.  Therefore,  only  the  ‘punishments’  not  

greater  than those  postulated  by  the  Juvenile  Justice  

Act,  1986  ought  to  be  awarded  to  him.  This  is  the  

requirement of Article 20(1) of  the Constitution.   The  

‘punishments’ provided under the Juvenile Justice Act,  

1986 are given in Section 21 thereof and they read as  

follows:

“21.  Orders  that  may  be  passed  regarding  delinquent juveniles.—(1) Where a Juvenile Court  is satisfied on inquiry that a juvenile has committed  an  offence,  then,  notwithstanding  anything  to  the  contrary  contained  in  any  other  law  for  the  time  being in force, the Juvenile Court may, if it so thinks  fit,—

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

(b) direct the juvenile to be released on probation of  good  conduct  and  placed  under  the  care  of  any  parent, guardian or other fit person, on such parent,

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guardian or other fit person executing a bond, with or  without  surety  as  that  Court  may  require,  for  the  good behaviour and well-being of the juvenile for any  period  not  exceeding  three  years;  Juvenile  Justice  Act, 1986

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

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

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

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

Provided that xxx xxx xxx.

Provided further that xxx xxx xxx;

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

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

Provided that xxx xxx xxx.

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(3) xxx xxx xxx.

(4) xxx xxx xxx.”

44. A  perusal  of  the  ‘punishments’  provided  for  

under the Juvenile Justice Act, 1986 indicate that given  

the nature of the offence committed by the appellant,  

advising  or  admonishing  him [clause  (a)]  is  hardly  a  

‘punishment’ that can be awarded since it is not at all  

commensurate with the gravity of the crime. Similarly,  

considering his age of about 40 years, it is completely  

illusory  to  expect  the  appellant  to  be  released  on  

probation of good conduct, to be placed under the care  

of any parent, guardian or fit person [clause (b)].  For  

the same reason, the appellant cannot be released on  

probation  of  good  conduct  under  the  care  of  a  fit  

institution [clause (c)] nor can he be sent to a special  

home under Section 10 of the Juvenile Justice Act, 1986  

which  is  intended  to  be  for  the  rehabilitation  and  

reformation  of  delinquent  juveniles  [clause  (d)].  The  

only realistic punishment that can possibly be awarded  

to the appellant on the facts of this case is to require

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him to pay a fine under clause (e) of Section 21(1) of  

the Juvenile Justice Act, 1986.

45. While  dealing  with  the  case  of  the  appellant  

under  the  IPC,  the  fine  imposed  upon  him  is  only  

Rs.100/-.   This  is  ex  facie inadequate  punishment  

considering the fact  that Asha Devi  suffered a dowry  

death.

46. Recently,  one  of  us  (T.S.  Thakur,  J.)  had  

occasion to deal with the issue of compensation to the  

victim  of  a  crime.   An  illuminating  and  detailed  

discussion  in  this  regard  is  to  be  found  in  Ankush  

Shivaji Gaikwad v. State of Maharashtra, 2013 (6)   

SCALE 778.  Following the view taken therein read with  

the provisions of Section 20 of the Juvenile Justice (Care  

and Protection of Children)  Act,  2000 the appropriate  

course of action in the present case would be to remand  

the  matter  to  the  jurisdictional  Juvenile  Justice Board  

constituted  under  the  Juvenile  Justice  (Care  and  

Protection  of  Children)  Act,  2000 for  determining  the  

appropriate quantum of fine that should be levied on

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the  appellant  and  the  compensation  that  should  be  

awarded to the family of Asha Devi.

Avoiding a recurrence:

47. How can a situation such as the one that has  

arisen in this case (and in several others in the past) be  

avoided? We need to only appreciate and understand a  

few  provisions  of  the  Juvenile  Justice  (Care  and  

Protection  of  Children)  Act,  2000  (the  Act)  and  the  

Model Rules framed by the Government of India called  

the  Juvenile  Justice  (Care  and  Protection  of  Children)  

Rules, 2007 (the Rules).   

48. The preamble to the Act draws attention to the  

Convention on the Rights of the Child which was ratified  

by the  Government  of  India  on 11th December  1992.  

The  Convention  has  prescribed,  inter  alia,  a  set  of  

standards  to  be  adhered  to  in  securing  the  best  

interests of the child.  For the present purposes, it is not  

necessary to detail those standards. However, keeping  

this  in  mind,  several  special  procedures,  over  and  

above or despite the Criminal Procedure Code (for short  

the  Code)  have  been  laid  down  for  the  benefit  of  a

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juvenile or a child in conflict with law.  These special  

procedures are to be found both in the Act as well as in  

the Rules. Some (and only some) of them are indicated  

below.

49. A  Juvenile  Justice  Board  is  constituted  under  

Section  6  of  the  Act  to  deal  exclusively  with  all  

proceedings in respect of a juvenile in conflict with law.  

When a juvenile charged with an offence is produced  

before a Juvenile Justice Board, it is required to hold an  

inquiry (not a trial) and pass such orders as it deems fit  

in connection with the juvenile (Section 14 of the Act).  

50. A juvenile or a child in conflict with law cannot  

be kept in jail  but may be temporarily received in an  

Observation Home during the pendency of any inquiry  

against him (Section 8 of the Act).  If the result of the  

inquiry is against him, the said juvenile may be received  

for  reception  and  rehabilitation  in  a  Special  Home  

(Section  9  of  the  Act).   The  maximum  period  for  

reception and rehabilitation in a Special Home is three  

years  (Section  15  of  the  Act).  Even this,  in  terms of

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Article 37 of the Convention on the Rights of the Child,  

shall be a measure of last resort.

51. The provision  dealing  with  bail  (Section  12  of  

the  Act)  places  the  burden  for  denying  bail  on  the  

prosecution.  Ordinarily,  a  juvenile  in  conflict  with  law  

shall be released on bail, but he may not be so released  

if  there appear reasonable grounds for  believing that  

the release is likely to bring him into association with  

any known criminal or expose him to moral, physical or  

psychological danger or that his release would defeat  

the ends of justice.  

52. Orders that may be passed by a Juvenile Justice  

Board against a juvenile,  if  it  is  satisfied that he has  

committed an offence, are mentioned in Section 15 of  

the  Act.  One  of  the  orders  that  may  be  passed,  as  

mentioned above, is for his reception and rehabilitation  

in  a  Special  Home for  a  period  of  three  years,  as  a  

measure of last resort.

53. The  Rules,  particularly  Rule  3,  provide,  inter  

alia,  that  in  all  decisions  taken within  the context  of  

administration of justice, the principle of best interests

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of a juvenile shall be the primary consideration. What  

this means is that “the traditional objectives of criminal  

justice, that is retribution and repression, must give way  

to rehabilitative and restorative objectives of  juvenile  

justice”.  The  right  to  privacy  and  confidentiality  of  a  

juvenile is required to be protected by all  means and  

through all  the stages of the proceedings, and this is  

one  of  the  reasons  why  the  identity  of  a  juvenile  in  

conflict  with  law  is  not  disclosed.   Following  the  

requirements  of  the  Convention  on the  Rights  of  the  

Child, Rule 3 provides that institutionalization of a child  

or a juvenile in conflict with law shall be the last resort  

after a reasonable inquiry and that too for the minimum  

possible duration.  

Rule 32 provides that:

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

54. It is quite clear from the above that the purpose  

of the Act is to rehabilitate a juvenile in conflict with law  

with a view to reintegrate him into society. This is by no

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means an easy task and it  is  worth  researching how  

successful the implementation of the Act has been in its  

avowed purpose in this respect.  

55. As regards procedurally dealing with a juvenile  

in  conflict  with  law,  the  Rules  require  the  concerned  

State Government to set up in every District a Special  

Juvenile Police Unit to handle the cases of juveniles or  

children in terms of the provisions of the Act (Rule 84).  

This  Unit  shall  consist  of  a  juvenile  or  child  welfare  

officer of the rank of Police Inspector having an aptitude  

and appropriate training and orientation to handle such  

cases. He will  be assisted by two paid social  workers  

having  experience  of  working  in  the  field  of  child  

welfare of which one of them shall be a woman.

56. Rule 75 of the Rules requires that while dealing  

with a juvenile or a child, except at the time of arrest, a  

police  officer  shall  wear  plain  clothes  and  not  his  

uniform.

57. The Act and the Model Rules clearly constitute  

an independent code for issues concerning a child or a  

juvenile, particularly a juvenile in conflict with law. This

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code is intended to safeguard the rights of the child and  

a  juvenile  in  conflict  with  law  and  to  put  him  in  a  

category separate and distinct from an adult accused of  

a crime.  

58. Keeping  in  mind  all  these  standards  and  

safeguards required to be met as per our international  

obligations, it becomes obligatory for every Magistrate  

before whom an accused is  produced to ascertain,  in  

the  first  instance  or  as  soon  thereafter  as  may  be  

possible, whether the accused person is an adult or a  

juvenile  in  conflict  with  law.  The  reason  for  this,  

obviously, is to avoid a two-fold difficulty: first, to avoid  

a  juvenile  being  subjected  to  procedures  under  the  

normal criminal law and de hors the Act and the Rules,  

and second, a resultant situation, where the “trial” of  

the juvenile is required to be set aside and quashed as  

having  been  conducted  by  a  court  not  having  

jurisdiction to do so or a juvenile, on being found guilty,  

going ‘unpunished’.  This  is  necessary  not  only in  the  

best  interests  of  the  juvenile  but  also  for  the  better  

administration of criminal justice so that the Magistrate

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or the Sessions Judge (as the case may be) does not  

waste his time and energy on a “trial”.  

59. It must be appreciated by every Magistrate that  

when an accused is produced before him, it is possible  

that the prosecution or the investigating officer may be  

under  a  mistaken  impression  that  the  accused  is  an  

adult. If the Magistrate has any iota of doubt about the  

juvenility of an accused produced before him, Rule 12  

provides that a Magistrate may arrive at a  prima facie  

conclusion on the juvenility, on the basis of his physical  

appearance. In our opinion, in such a case, this  prima  

facie opinion  should  be  recorded  by  the  Magistrate.  

Thereafter,  if  custodial  remand  is  necessary,  the  

accused may be sent to jail or a juvenile may be sent to  

an  Observation  Home,  as  the  case  may  be,  and the  

Magistrate  should  simultaneously  order  an  inquiry,  if  

necessary,  for  determining  the  age  of  the  accused.  

Apart from anything else, it must be appreciated that  

such an inquiry at the earliest possible time, would be  

in the best interests of the juvenile, since he would be  

kept away from adult  under-trial  prisoners and would

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not be subjected to a regimen in jail, which may not be  

conducive  to  his  well  being.  As  mentioned  above,  it  

would also be in the interests of better administration of  

criminal  justice.  It  is,  therefore,  enjoined  upon  every  

Magistrate to  take appropriate steps to  ascertain  the  

juvenility  or  otherwise  of  an  accused person  brought  

before him or her at the earliest possible point of time,  

preferably on first production.

60. It  must  also  be  appreciated  that  due  to  his  

juvenility,  a  juvenile  in  conflict  with  law  may  be  

presumed  not  to  know  or  understand  the  legal  

procedures making it  difficult for him to put forth his  

claim  for  juvenility  when  he  is  produced  before  a  

Magistrate.  Added  to  this  are  the  factors  of  poor  

education and poor economic set up that are jointly the  

main attributes of a juvenile in conflict with law, making  

it difficult for him to negotiate the legal procedures. We  

say  this  on  the  strength  of  studies  conducted,  and  

which have been referred to by one of us (T.S. Thakur,  

J)  in  Abuzar  Hossain  v.  State  of  West  Bengal,  

Page 32

(2012)  10 SCC 489.  It  is  worth  repeating what  has  

been said:

“Studies  conducted  by  National  Crime  Records  Bureau  (NCRB),  Ministry  of  Home  Affairs,  reveal  that poor education and poor economic set up are  generally  the  main  attributes  of  juvenile  delinquents. Result of the 2011 study further show  that out of 33,887 juveniles arrested in 2011, 55.8%  were either  illiterate (6,122)  or  educated only  till  the primary level  (12,803).  Further,  56.7% of  the  total juveniles arrested fell into the lowest income  category.  A  similar  study  is  conducted  and  published  by  B.N.  Mishra  in  his  Book  'Juvenile  Delinquency  and  Justice  System',  in  which  the  author states as follows:

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

61. Such being the position, it is difficult to expect a  

juvenile  in  conflict  with  law  to  know  his  rights  upon  

apprehension by a police officer and if the precautions  

that have been suggested are taken, the best interests  

of the child and thereby of society will be duly served.  

Therefore, it may be presumed, by way of a benefit of  

doubt that because of his status, a juvenile may not be

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able to raise a claim for juvenility in the first instance  

and that is why it becomes the duty and responsibility  

of the Magistrate to look into this aspect at the earliest  

point of time in the proceedings before him.   We are of  

the view that this may be a satisfactory way of avoiding  

the recurrence of a situation such as the one dealt with.

62. We may add that our international  obligations  

as  laid  down in  the Convention  on  the Rights  of  the  

Child and the Beijing Rules require the involvement of  

the  parents  or  legal  guardians  in  the  legal  process  

concerning a juvenile in conflict with law. For example,  

a  reference  may  be  made  to  Article  40  of  the  

Convention and Principles 7, 10 and 15 of the Beijing  

Rules. That this is not unusual is clear from the fact that  

in civil disputes, our domestic law requires a minor to  

be represented by a guardian.  

The remedy:

63. In  D.K.  Basu  v.  State  of  West  Bengal,   

(1997)  1  SCC  416  this  Court  laid  down  some  

important  requirements  for  being  adhered  to  by  the  

police  “in  all  cases  of  arrest  or  detention  till  legal

Page 34

provisions  are  made  in  that  behalf  as  preventive  

measures”.  The Criminal  Procedure  Code  has  since  

been amended and some of the important requirements  

laid  down  by  this  Court  have  been  given  statutory  

recognition.  These  are  equally  applicable,  mutatis  

mutandis, to a child or a juvenile in conflict with law.

64. Attention may be drawn to Section 41-B of the  

Code which requires a police officer making an arrest to  

prepare  a  memorandum  of  arrest  which  shall  be  

attested by at least one witness who is a member of the  

family of the person arrested or a respectable member  

of  the locality  where the arrest  is  made.   The police  

officer is also mandated to inform the arrested person,  

if  the  memorandum  of  arrest  is  not  attested  by  a  

member  of  his  family,  that  he has a  right  to  have a  

relative or a friend named by him to be informed of his  

arrest.  Section 41-B of the Code reads as follows:

“41-B. Procedure of arrest and duties of officer  making arrest.— Every police officer while making  an arrest shall—

(a)  bear  an  accurate,  visible  and  clear  identification of his name which will facilitate easy  identification; (b) prepare a memorandum of arrest which shall  be—

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(i)  attested by at  least  one witness,  who is  a  member of the family of the person arrested or  a respectable member of the locality where the  arrest is made; (ii) countersigned by the person arrested; and

(c)  inform  the  person  arrested,  unless  the  memorandum  is  attested  by  a  member  of  his  family, that he has a right to have a relative or a  friend named by him to be informed of his arrest.”

65. Every  police  officer  making  an  arrest  is  also  

obliged  to  inform  the  arrested  person  of  his  rights  

including the full particulars of the offence for which he  

has  been  arrested  or  other  grounds  for  such  arrest  

(Section 50 of the Code), the right to a counsel of his  

choice and the right that the police inform his friend,  

relative or such other person of the arrest. Section 50-A  

of the Code is relevant in this regard and it reads as  

follows:

“50-A.  Obligation  of  person  making  arrest  to  inform about the arrest, etc., to a nominated  person.—(1)  Every  police  officer  or  other  person  making  any  arrest  under  this  Code  shall  forthwith  give the information regarding such arrest and place  where the arrested person is being held to any of his  friends,  relatives or such other  persons as may be  disclosed or  nominated by  the  arrested  person  for  the purpose of giving such information. (2) The police officer shall inform the arrested person  of his rights under sub-section (1) as soon as he is  brought to the police station.

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(3) An entry of the fact as to who has been informed  of the arrest of such person shall be made in a book  to be kept in the police station in such form as may  be prescribed in this behalf by the State Government. (4) It shall be the duty of the Magistrate before whom  such arrested person is produced, to satisfy himself  that  the  requirements  of  sub-section  (2)  and  sub- section  (3)  have  been  complied  with  in  respect  of  such arrested person.”

66. When any person is arrested, it is obligatory for  

the  arresting  authority  to  ensure  that  he  is  got  

examined  by  a  medical  officer  in  the  service  of  the  

Central  or  the  State  Government  or  by  a  registered  

medical practitioner. The medical officer or registered  

medical practitioner is mandated to prepare a record of  

such  examination  including  any  injury  or  mark  of  

violence on the person arrested.  Section 54 of the Code  

reads as follows:

“54. Examination of arrested person by medical  officer.—(1) When any person is arrested, he shall  be examined by a medical officer in the service of  Central  or  State  Government,  and  in  case  the  medical  officer  is  not  available,  by  a  registered  medical practitioner soon after the arrest is made:

Provided  that  where  the  arrested  person  is  a  female, the examination of the body shall be made  only by or under the supervision of a female medical  officer, and in case the female medical officer is not  available,  by  a  female  registered  medical  practitioner. (2)  The  medical  officer  or  a  registered  medical  practitioner so examining the arrested person shall

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prepare the record of such examination, mentioning  therein  any injuries  or  marks  of  violence upon the  person  arrested,  and  the  approximate  time  when  such injuries or marks may have been inflicted. (3) Where an examination is made under sub-section  (1), a copy of the report of such examination shall be  furnished by the medical officer or registered medical  practitioner,  as  the  case  may  be,  to  the  arrested  person  or  the  person  nominated  by  such  arrested  person.”

67. In our opinion, the procedures laid down in the  

Code,  in  as  much  as  they  are  for  the  benefit  of  a  

juvenile  or  a  child,  apply  with  full  rigour  to  an  

apprehension  made of  a  juvenile  in  conflict  with  law  

under Section 10 of the Act.   If these procedures are  

followed, the probability of a juvenile, on apprehension,  

being shown as an adult and sent to judicial custody in  

a  jail,  will  be  considerably  minimized.  If  these  

procedures are followed, as they should be, along with  

the  requirement  of  a  Magistrate  to  examine  the  

juvenility  or  otherwise  of  an  accused person  brought  

before him, subjecting a juvenile in conflict with law to a  

trial by a regular Court may become a thing of the past.

Conclusion:

68. The appellant was a juvenile on the date of the  

occurrence of the incident. His case has been examined

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on merits and his conviction is upheld. The only possible  

and realistic sentence that can be awarded to him is the  

imposition  of  a  fine.  The  existing  fine  of  Rs.100/-  is  

grossly  inadequate.  To  this  extent,  the  punishment  

awarded to the appellant is set aside. The issue of the  

quantum  of  fine  to  be  imposed  on  the  appellant  is  

remitted to the jurisdictional Juvenile Justice Board. The  

jurisdictional Juvenile Justice Board is also enjoined to  

examine the compensation to be awarded, if any, to the  

family of Asha Devi in terms of the decision of this Court  

in Ankush Shivaji Gaikwad.  

69. Keeping  in  mind  our  domestic  law  and  our  

international  obligations,  it  is  directed  that  the  

provisions  of  the Criminal  Procedure Code relating to  

arrest and the provisions of the Juvenile Justice (Care  

and Protection of Children) Act, 2000 being the law of  

the  land,  should  be  scrupulously  followed  by  the  

concerned authorities in respect of juveniles in conflict  

with law.

70. It  is  also  directed  that  whenever  an  accused,  

who physically  appears  to  be a  juvenile,  is  produced

Page 39

before  a  Magistrate,  he  or  she  should  form a  prima  

facie opinion on the juvenility of the accused and record  

it.  If any doubt persists, the Magistrate should conduct  

an age inquiry as required by Section 7A of the Juvenile  

Justice (Care and Protection of Children) Act,  2000 to  

determine  the  juvenility  or  otherwise  of  the  accused  

person. In this regard, it is better to err on the side of  

caution in the first instance rather than have the entire  

proceedings reopened or vitiated at a subsequent stage  

or a guilty person go unpunished only because he or  

she is found to be a juvenile on the date of occurrence  

of the incident.   

71. Accordingly,  the  matter  is  remanded  to  the  

jurisdictional  Juvenile  Justice  Board  constituted  under  

the  Juvenile  Justice  (Care  and  Protection  of  Children)  

Act, 2000 for determining the appropriate quantum of  

fine  that  should  be  levied  on  the  appellant  and  the  

compensation that should be awarded to the family of  

Asha Devi. Of course, in arriving at its conclusions, the  

said Board will take into consideration the facts of the

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case as also the fact that the appellant has undergone  

some period of incarceration.  

72. The appeal is partly allowed with the directions  

given above.

…….……………………..J.  (T.S. Thakur)

…….……………………..J.  (Madan B. Lokur)

New Delhi; July 10, 2013

Page 41

               REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.763 OF 2003

Jitendra Singh @ Babboo Singh & Anr. …

Appellants

Versus

State of U.P. …Respondent

J U D G M E N T

T.S. Thakur, J.

1. I  have had the advantage of going through the  

Judgment  and  Order  proposed  by  my  Esteemed  

Brother  Madan  B.  Lokur,  J.   The  draft  judgment  

formulates three issues for determination and answers  

them with remarkable lucidity.  While I agree with the  

view taken by Brother Lokur, J. that the appellant was  

a juvenile on the date of the commission of the offence  

within  the  meaning  of  Section  2(k)  of  the  Juvenile

Page 42

Justice  (Care & Protection  of  Children) Act,  2000 (in  

short , the “2000 Act”) and that his conviction ought to  

be upheld, I wish to add a few words of my own in  

support  of  that  view.  As  regards  issue  of  general  

directions for guidance of the Courts below, I do not  

have  any  serious  conceptual  or  other  disagreement  

with what has been proposed by my erudite Brother,  

for  the  proposed  directions  will  promote  the  objects  

underlying  the  2000  Act,  and  prevent  anomalous  

situations in which juveniles in conflict  with law may  

stand to get prejudiced because of their economic and  

other handicaps/ because of proverbial law’s delay.

2. The facts have been succinctly summarised in the  

draft judgment of Brother Lokur, J. which do not bear  

repetition except to the extent the same is absolutely  

necessary to elucidate the narrative in which the issues  

arise for our consideration. The appellant was, together  

with three others, tried for offences punishable under  

Sections  302,  304-B  and  498-A  of  the  IPC  by  the  

Sessions Judge, Rae Bareli, who by her judgment dated

Page 43

30th August,  1990  convicted  him  and  his  father  Lal  

Bahadur Singh (since deceased) under Section 304-B  

and  sentenced  both  of  them  to  undergo  rigorous  

imprisonment for a period of seven years.  They were  

also  convicted  under  Section  498-A  of  the  IPC  and  

sentenced  to  undergo  rigorous  imprisonment  for  a  

period of two years and a fine of Rs.200/- each.  The  

prosecution  case  against  the  appellant  and  his  co-

accused was that they set on fire Asha Devi, who was  

none other than the wife of the appellant, on the night  

intervening 23rd and 24th May, 1988.  The motive for  

the commission of the offence was the alleged failure of  

the deceased Asha Devi and her parents to satisfy the  

appellant’s demand for dowry.

3. Aggrieved  by  their  conviction  and  sentence  the  

appellant  and  his  co-accused  filed  Criminal  Appeal  

No.464 of 1990, which failed and was dismissed by the  

High  Court  in  terms  of  the  order  impugned  in  this  

appeal.   Demise  of  the  second  appellant  during  the  

pendency of the present appeal abated the proceedings

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qua him, leaving the appellant to pursue the challenge  

mounted against the judgments and orders passed by  

the Courts below, by himself.

4. Seven years after the filing of the present appeal,  

the appellant for the first time filed Crl.  Misc. Petition  

No.16974 of 2010 for permission to urge an additional  

ground to the effect that the appellant was on the date  

of the commission of the offence a juvenile within the  

meaning of Section 2 (k) of the 2000, Act. It was urged  

on the basis of a school certificate that the petitioner  

was on the date of commission of the offence hardly 14  

years  of  age,  and  hence  a  juvenile  entitled  to  the  

protection  of  the  Act  aforementioned.  By  an  order  

dated  19th November,  2010,  this  Court  allowed  the  

Criminal Miscellaneous Petition, permitted the appellant  

to raise the additional plea and directed an inquiry into  

the  claim  of  juvenility  of  the  appellant  by  the  Trial  

Court.

5. The Trial Court accordingly conducted an inquiry,  

examined the relevant school record and, based on the

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entirety of the evidence including the medical evidence  

adduced  in  the  course  of  the  inquiry,  held  that  

according  to  the  school  certificate  the  age  of  the  

appellant on the date of the incident in question was  

around 13 years 8 months on the date of the incident.  

In doing so the trial Court gave credence to the school  

certificate  in  preference  to  the  medical  examination  

and other equally compelling records touching upon the  

age  of  the  appellant  like  the  Family  Register  

maintained  by  the  Panchayat  and  the  Electoral  rolls  

according to which the appellant’s age was above 16  

years  and  below  17  ½  years  on  the  date  of  the  

occurrence.  Although the respondent has objected to  

the finding of the Trial Court and the assessment of the  

age as on the date of the commission of the offence, I  

am inclined to go along with Lokur, J’s finding as to age  

of the appellant when His Lordship says:

“.....Therefore,  it  does  appear  that  the  appellant was about 17 years of age when the   incident had occurred and that he had set up a   claim of being a juvenile or child soon after his   arrest and before the charge sheet was filed.   In other words, the appellant was a juvenile or  

Page 46

a child within the meaning of that expression   as defined in Section 2(k) of the Act.”

6. I  may,  independent  of  the conclusion  drawn by  

my  esteemed  brother,  briefly  state  my  reasons  for  

holding that the appellant was above sixteen years as  

on  the  date  of  the  commission  of  the  offence,  no  

matter the enquiry report submitted by the Trial Court  

has held him to be less than 16 years on that date.  

But before I do so, it is important to mention that the  

question whether the appellant was less or more than  

16 is important not because the benefit of the 2000 Act  

depends on that question, but because the answer to  

that question has a bearing on whether the conviction  

of the appellant was itself illegal, hence liable to be set  

aside.  I say so because, the benefit of the 2000 Act,  

would be in any case available to the appellant, so long  

as he was less than 18 years of age on the crucial date,  

and it is nobody’s case that he was above that age on  

that date. The decision of this Court in  Hari Ram v.  

State  of  Rajasthan (2009)  13  SCC  211

Page 47

authoritatively settles the legal position in that regard  

when it says:

"A juvenile  who had not  completed eighteen   years on the date of commission of the offence   was also entitled to the benefits of the Juvenile   Justice  Act,  2000,  as  if  the  provisions  of   Section  2(k)  had  always  been  in  existence   even during the operation of the 1986 Act."

7. Equally important is the fact that the jurisdiction  

of the Court to try the appellant, as indeed any other  

person  accused  of  commission  of  an  offence  would  

have  to  be  determined  by  reference  to  the  legal  

position that prevailed as on the date the Court tried,  

convicted and sentenced the appellant.  It is common  

ground that as on the date of the commission of the  

offence  and  right  up  to  the  date  the  trial  Court  

convicted  and  sentenced  the  appellant  to  

imprisonment,  the  provisions  of  Juvenile  Justice  Act,  

1986 (in short,  the “1986 Act”) held the field.  Apart  

from  the  fact  that  the  upper  age  limit  for  claiming  

juvenility was 16 years for boys, the question whether  

a person was or was not a juvenile could be decided by  

the  Court  on  the  basis  of  documentary  or  medical

Page 48

evidence or on a fair assessment of both of them. That  

is  because,  the  provisions  of  1986  Act,  did  not,  

prioritise the basis on which such determination could  

be  made.  It  was  left  for  the  accused  to  produce  

evidence or the Court to direct a medical examination  

for  determining  his  age.   The  weightage  which  the  

Rules framed under the 2000 Act provide and the order  

of  preference settled for  purposes of  placing reliance  

upon evidence coming from different sources were not  

in vogue while the 1986 Act held the field.  The result  

was that the Court was free to determine the question  

on the basis  of  one such piece  of  evidence or  on a  

cumulative effect and on such evidence that may have  

been produced before it.   It  is  necessary to bear  in  

mind  this  dichotomy  in  the  legal  framework  while  

determining whether the trial Court had committed an  

error of jurisdiction in holding the appellant to be not a  

juvenile and hence triable by it.

8. The question whether the appellant was a juvenile  

was first raised before the trial Court at a very early

Page 49

stage of the case.  The appellant had prayed for bail on  

that  basis,  which  appears  to  have  led  the  Court  to  

direct assessment of his age on the basis of a medical  

examination.   The  medical  examination,  however,  

determined the age of the appellant to be 17 years,  

which  took  him  beyond  the  upper  age  of  juvenility  

under the 1986 Act.   What is  noteworthy is  that no  

attempt  was  made  by  the  appellant  to  adduce  any  

evidence to support his claim of being a juvenile nor  

was any documentary evidence in the form of school  

certificate or otherwise adduced.  As a matter of fact  

the chapter was totally forgotten, and the trial allowed  

to  proceed  to  its  logical  conclusion  without  the  

appellant  raising  his  little  finger  against  the  

competence  of  the  Court  or  agitating  the  issue  

regarding his age in any higher forum.  The conviction  

and  sentence  recorded  by  the  trial  Court  was  also  

assailed on merits before the High Court but not on the  

ground that  the trial  was vitiated  on account  of  the  

appellant being a juvenile, not triable by an ordinary  

criminal Court.  It was only in this Court that long after

Page 50

the appeal was filed that a fresh claim for benefit under  

the 2000 Act was made by the appellant in which this  

Court directed a fresh enquiry that was conducted in  

terms of Rule 12 of the Rules framed under the 2000  

Act.    The  enquiry  report  submitted  supports  the  

appellant’s claim of his being a juvenile under Section  

2(k) of the 2000 Act, hence, entitled to the benefits  

admissible thereunder.  Although an attempt was made  

by the respondent-State to assail the finding that the  

appellant was less than 18 years of age on the date of  

the occurrence, we do not see any cogent reason to  

hold that the appellant was more than 18 years on the  

date of the occurrence.  In my view, the determination  

of age of the appellant, by the trial Court, on the basis  

of the first medical examination is fully supported and  

corroborated  by  the  medical  examination  of  the  

appellant  conducted  in  the  course  of  the  enquiry  

directed  by  this  Court  by  our  order  dated  19th  

November, 2010.  The medical examination conducted  

by the Board of Doctors has determined the appellant’s  

age to be 40 years as on 24th  December, 2010 which

Page 51

implies that he was around 17 ½ years old on the date  

of the occurrence.  Superadded to the medical evidence  

is the documentary evidence that has come to light in  

the course of  the enquiry  in  the form of  the Family  

Register (Ex. Ka-3) maintained by the Panchayat and  

proved  by  A.P.W.2-Gokaran  Nath  Tiwari,  Gram  

Panchayat Officer.  According to this witness who spoke  

from the register, the appellant was born in the year  

1969.  The  Electoral  roll  for  the  year  2009  for  the  

constituency in which the appellant’s village falls, also  

mentions this age to be 37 years, implying thereby that  

he  was  around  17  years  old  on  the  date  of  the  

occurrence.   Deposition  of  the  Gram  Sabha  Head  

examined  as  PW-12  in  the  course  of  the  enquiry  is  

supportive of the age of the appellant as given in the  

Electoral  roll.  The two medical  examinations  and the  

documents  referred  to  above  come  from  proper  

custody  and  lend  complete  corroboration  to  the  

appellant’s age being above 16 years on the date of the  

occurrence.  Besides, what cannot be lightly brushed  

away is the fact that the appellant was a married man

Page 52

on  the  date  of  the  occurrence  and  that  the  charge  

levelled against him was one of dowry harassment and  

dowry death of his wife who was 19 years old at the  

time of her demise.  If the appellant was only 13 years  

and 8 months old as suggested by the school certificate  

the question of his harassing the deceased almost six  

years his senior would not arise for he would be only  

an adolescent while his wife-the deceased was a grown  

up girl who could hardly get harassed by a mere child  

so young in age that he had barely cut his teeth.  The  

trial  Court  did  not  in  that  view commit  any error  of  

jurisdiction  in  trying  the  appellant  for  the  offences  

alleged against him.  

9. The upshot of the above discussion is that while  

the appellant was above 16 years of age on the date of  

the commission of the offence, he was certainly below  

18 years and hence entitled to the benefit of the 2000  

Act,  no  matter  the  later  enactment  was  not  on  the  

statute  book  on  the  date  of  the  occurrence.   The  

difficulty arises when we examine whether the trial and

Page 53

the resultant order of conviction of the appellant, would  

also  deserve  to  be  set  aside  as  illegal  and  without  

jurisdiction.   The  conviction  cannot  however  be  set  

aside for more than one reason. Firstly because there  

was  and  is  no  challenge  to  the  order  of  conviction  

recorded by the Courts below in this case either before  

the High Court or before us.  As a matter of fact the  

plea  of  juvenility  before  this  Court  by  way  of  an  

additional  ground  stopped  short  of  challenging  the  

conviction  of  the  appellant  on  the  ground  that  the  

Court  concerned  had  no  jurisdiction  to  try  the  

appellant.   

10. Secondly because the fact situation in the case at  

hand is that on the date of the occurrence i.e. on 24th  

May, 1988 the appellant was above 16 years of age.  

He was, therefore, not a juvenile under the 1986 Act  

that covered the field at that point of time, nor did the  

1986 Act deprive the trial Court of its jurisdiction to try  

the  appellant  for  the  offence  he  was  charged  with.  

Repeal of the 1986 Act by the 2000 Act raised the age

Page 54

of juvenility to 18 years.  Parliament provided for cases  

which  were  either  pending  trial  or  were,  after  

conclusion of the trial, pending before an appellate or a  

revisional Court by enacting Section 20 of the Juvenile  

Justice (Care and Protection) Act, 2000 which is to the  

following effect:

“20.  Special  provision  in  respect  of   pending  cases.- Notwithstanding  anything  contained  in  this  Act,  all  proceedings  in   respect of a juvenile pending in any court in   any area on the date on which this Act comes  into force in that area, shall  be continued in   that court as if this Act had not been passed   and  if  the  court  finds  that  the  juvenile  has   committed  an  offence,  it  shall  record  such  finding and instead of passing any sentence in   respect of the juvenile, forward the juvenile to   the Board which shall pass orders in respect of   that juvenile in accordance with the provisions   of this Act as if it had been satisfied on inquiry   under this Act that a juvenile has committed  the offence.

Provided that the Board may, for any adequate  and  special  reason  to  be  mentioned  in  the   order,  review the case and pass  appropriate   order in the interest of such juvenile.

Explanation.- In  all  pending  cases  including   trial,  revision,  appeal  or  any  other  criminal   proceedings in respect of a juvenile in conflict   with  law,  in  any court,  the  determination  of   juvenility of such a juvenile shall be in terms   of Clause (1) of Section 2, even if the juvenile  ceases  to  be  so  on  or  before  the  date  of   commencement of this Act and the provisions   of this Act shall apply as if the said provisions   had been in force, for all purposes and at all  

Page 55

material  times when the alleged offence was  committed.”

11. A plain reading of the above brings into bold relief  

the following features that have a significant bearing on  

the controversy at hand:

(i) The  provision  starts  with  a  non-obstante  

clause,  which  implies  that  the  provisions  

have  an  overriding  effect  on  all  other  

provisions contained in the enactment.

(ii) The provision deals with proceedings pending  

against a juvenile in any court.

(iii) The  provision  sanctions  the  continuance  of  

such pending proceedings in the very same  

court,  as  if  the  2000  Act  had  not  been  

enacted.

(iv) The  provision  requires  the  Court  seized  of  

the matter to record a finding as to whether  

the juvenile has committed an offence.

Page 56

(v) If the finding is against the juvenile in that  

he is  found to have committed an offence,  

the court is required to forebear from passing  

an order of sentence and instead forward the  

juvenile to the Board, which shall then pass  

an order in accordance with the provisions of  

the Act, as if it had been satisfied on inquiry  

under  the  Act  that  the  juvenile  had  

committed an offence.

(vi) In all pending cases including trial, revision,  

appeal or any other criminal proceedings the  

determination of juvenility shall be in terms  

of clause (l) of Section 2 even if the juvenile  

ceases  to  be  so  on  or  before  the  date  of  

commencement of the 2000 Act.

12. It is manifest, that a case that was pending before  

‘any Court’  (which expression would include both the  

trial Court and the High Court) would continue in that  

Court, who would not only proceed with the trial and/or  

hearing of the case as if the 2000 Act was not on the

Page 57

Statute book but also record a finding as to the guilt or  

innocence  of  the  juvenile.   Far  from  stipulating  a  

specific prohibition, the provisions of Section 20, make  

it obligatory for the Court concerned to proceed with  

the matter and record its conclusion as to the guilt or  

otherwise of the juvenile.  The prohibition is against the  

Court  passing  an  order  of  sentence  against  the  

juvenile,  for  which  purpose  the  juvenile  has  to  be  

forwarded to the Board for appropriate orders.  That is  

precisely the view which this Court has taken in a line  

of decisions to which I may briefly refer at this stage.

13. In Pratap Singh v. State of Jharkhand and Anr.   

(2005) 3 SCC 551, this  Court  while  interpreting the  

provisions of Section 20 (supra) held that the same is  

attracted to cases where the person, if male, has ceased  

to be a juvenile under the 1986 Act being more than 16  

years  of  age  but  had  not  yet  crossed  the  age  of  18  

years. Such cases alone were within the comprehension  

of Section 20 of the Act, observed the Court, in which  

the Court seized of the matter was bound to record its

Page 58

conclusion, as to the guilt or innocence of the accused.  

The Court said:

“30.  Section 20 of  the Act  as quoted above   deals with the special provision in respect of   pending cases  and begins  with  non-obstante   clause.  The  sentence  "Notwithstanding  anything contained in this Act all proceedings   in respect of a juvenile pending in any Court in   any area on date of which this Act came into   force" has great significance. The proceedings   in respect of a juvenile pending in any court   referred to in Section 20 of the Act is relatable   to  proceedings  initiated  before  the 2000 Act  came into force and which are pending when  the 2000 Act came into force. The term "any  court"  would  include  even  ordinary  criminal   courts. If  the person was a "juvenile"  under   the  1986  Act  the  proceedings  would  not  be  pending  in  criminal  courts.  They  would  be   pending in criminal courts only if the boy had   crossed 16 years or girl had crossed 18 years.   This  shows  that  Section  20  refers  to  cases   where a person had ceased to be a juvenile   under the 1986 Act but had not yet crossed   the  age  of  18  years  then  the  pending  case  shall continue in that Court as if the 2000 Act   has not been passed and if the Court finds that   the juvenile has committed an offence, it shall   record such finding and instead of passing any  sentence  in  respect  of  the  juvenile,  shall   forward the juvenile to the Board which shall   pass orders in respect of that juvenile.”

     (emphasis  supplied)

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14. To the same effect is the decision of this Court in  

Bijender  Singh  v.  State  of  Haryana  and  Anr.   

(2005) 3 SCC 685, where this  Court reiterated the  

legal position as to the true purpose of Section 20 in  

the following words:

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

9. A person above 16 years in terms of the 1986   Act was not a juvenile. In that view of the matter   the  question  whether  a  person  above  16  years   becomes “juvenile” within the purview of the 2000  Act must be answered having regard to the object   and purport thereof.

10. In terms of the 1986 Act, a person who was   not juvenile could be tried in any court. Section 20  of  the  2000  Act  takes  care  of  such  a  situation   stating  that  despite  the  same  the  trial  shall   continue in that court as if that Act has not been   passed and in the event, he is found to be guilty of   commission of an offence, a finding to that effect   shall be recorded in the judgment of conviction, if  any,  but  instead  of  passing  any  sentence  in   relation to the juvenile, he would be forwarded to   the  Juvenile  Justice  Board  (in  short  the  'Board')   which  shall  pass  orders  in  accordance  with  the   provisions of the Act as if it has been satisfied on   inquiry that a juvenile has committed the offence.   A legal fiction has, thus, been created in the said   provision... xx xx xx

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12.  Thus,  by  reason  of  legal  fiction,  a  person,   although not a juvenile, has to be treated to be   one by the  Board  for  the  purpose  of  sentencing  which  takes  care  of  a  situation  that  the  person   although not a juvenile in terms of the 1986 Act   but still would be treated as such under the 2000   Act for the said limited purpose.”

(emphasis  supplied)

15. Reference may also be made to the decision of  

this  Court  in  Dharambir  v.  State  (NCT  of  Delhi)  

(2010)  5 SCC  344 where too this Court interpreted  

Section 20 of the Act, and the explanation appended to  

the  same,  to  declare  that  the  provision  enables  the  

Court to determine the juvenility of the accused even  

after conviction and while maintaining the conviction to  

set  aside  the  sentence  imposed  upon  him  and  to  

forward  the  case  to  the  Board  for  passing  an  

appropriate order in accordance with the provisions of  

the Act.  This Court observed:

“11.  It  is  plain  from  the  language  of  the  Explanation to Section 20 that in all pending  cases, which would include not only trials but   even  subsequent  proceedings  by  way  of   revision or appeal, etc., the determination of   juvenility of a juvenile has to be in terms of   Clause (l)  of  Section  2,  even if  the  juvenile   ceases to be a juvenile on or before 1st April,  

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2001, when the Act of 2000 came into force,   and the provisions of the Act would apply as if   the  said  provision  had  been  in  force  for  all   purposes and for all material times when the  alleged offence was committed. Clause (l) of   Section  2  of  the  Act  of  2000  provides  that   "juvenile  in  conflict  with  law"  means  a   "juvenile" who is alleged to have committed an  offence and has not completed eighteenth year  of age as on the date of commission of such  offence. Section 20 also enables the Court to   consider  and  determine  the  juvenility  of  a   person  even  after  conviction  by  the  regular   Court  and  also  empowers  the  Court,  while  maintaining  the  conviction,  to  set  aside  the   sentence imposed and forward the case to the  Juvenile  Justice Board concerned for  passing   sentence in accordance with the provisions of   the Act of 2000.”

16. Two recent  decisions  of  this  Court  are  a  timely  

reminder of the legal position on the subject to which I  

may gainfully refer at this stage.  In  Daya Nand v.  

State  of  Haryana  (2011)  2  SCC  224,  this  Court,  

reiterated  the  law  on  the  subject  in  the  following  

words.

“11.  The  Juvenile  Justice  Act,  1986  was   replaced  by  the  Juvenile  Justice  (Care  and   Protection  of  Children)  Act,  2000  that  came  into  force  on  April  1,  2001.  The  2000  Act   defined  `juvenile  or  child'  in  Section  2(k)to   mean  a  person  who  has  not  completed  eighteenth  years  of  age.  Section  69  of  the  2000  Act,  repealed  the  Juvenile  Justice  Act,   1986.  The  2000  Act,  in  Section  20  also  contained a provision in regard to cases that   were pending when it came into force and in  

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18. The settled legal position, therefore, is that in all  

such cases where the accused was above 16 years but  

below 18 years of age on the date of occurrence, the  

proceedings  pending  in  the  Court  concerned  will  

continue and be taken to their logical end except that  

the Court  upon finding  the juvenile  guilty  would  not  

pass  an order  of  sentence  against  him.   Instead he  

shall  be referred to the Board for appropriate orders  

under the 2000 Act.  Applying that proposition to the  

case at hand the trial Court and the High Court could  

and indeed were legally required to record a finding as  

to the guilt or otherwise of the appellant.  All that the  

Courts could not have done was to pass an order of  

sentence,  for  which  purpose,  they  ought  to  have  

referred the case to the Juvenile Justice Board.      

19. The matter can be examined from another angle.  

Section 7A (2) of the Act prescribes the procedure to  

be followed when a claim of juvenility is made before  

any Court. Section 7A (2) is as under:

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

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

20. A careful reading of the above would show that  

although a claim of juvenility can be raised by a person  

at any stage and before any Court, upon such Court  

finding the person to be a juvenile on the date of the  

commission  of  the  offence,  it  has  to  forward  the  

juvenile  to  the  Board  for  passing  appropriate  orders  

and the sentence, if  any, passed shall be deemed to  

have  effect.  There  is  no  provision  suggesting,  leave  

alone making it obligatory for the Court before whom  

the  claim  for  juvenility  is  made,  to  set  aside  the  

conviction of  the juvenile  on the ground that on the  

date of commission of the offence he was a juvenile,  

and hence not  triable  by  an ordinary  criminal  court.  

Applying  the  maxim  of  expressio  unius  est  exclusio  

alterious, it would be reasonable to hold that the law in

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so far  as it  requires  a  reference to be made to the  

Board excludes by necessary implication any intention  

on the part of the legislature requiring the Courts to set  

aside the conviction recorded by the lower court. The  

Parliament, it appears, was content with setting aside  

the sentence of imprisonment awarded to the juvenile  

and  making  of  a  reference  to  the  Board  without  

specifically  or  by  implication  requiring  the  court  

concerned  to  alter  or  set  aside  the  conviction.  That  

perhaps is  the reason why this  Court  has in  several  

decisions simply set aside the sentence awarded to the  

juvenile  without  interfering  with  the  conviction  

recorded by the court concerned and thereby complied  

with the mandate of Section 7A(2) of the Act.

21. In  Kalu  @  Amit’s  case  (supra),  the  plea  of  

juvenility was raised before this Court for the first time  

as is the position in the present case also. This Court  

while  dealing  with  the  options  available  noticed  the  

absence of plea on the ground of juvenility and held  

that even if  such a plea had been raised before the

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High Court, the High Court would have had to record  

its  finding  that  Kalu  @ Amit  was  guilty,  confirm his  

conviction, set aside the sentence and forward the case  

to the Board for passing an order under Section 15 of  

the Juvenile Act.  The Court observed:

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

22. That procedure has been followed in several other  

cases where this Court has, after holding the accused  

to be a juvenile as on the date of the commission of  

offence, set aside the sentence awarded to him without  

interfering  with  the  order  of  conviction.   (See:  

Pradeep Kumar & Ors. v. State of U.P. 1995 Supp  

(4)  SCC  419,  Bhola  Bhagat  &  Ors.  v.  State  of  

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Bihar (1997) 8 SCC 720, Upendra Kumar v. State   

of Bihar (2005) 3 SCC 592, Vaneet Kumar Gupta   

@ Dharmindher v. State of Punjab (2009) 17 SCC  

587).    

23. In the totality of the above circumstances, there is  

no reason why the conviction of the appellant should  

be  interfered  with,  simply  because  he  is  under  the  

2000  Act  a  juvenile  entitled  to  the  benefit  of  being  

referred to the Board for an order under Section 15 of  

the said Act.  There is no gainsaying that even if the  

appellant had been less than sixteen years of age, on  

the  date  of  the  occurrence,  he  would  have  been  

referred  for  trial  to  the  Juvenile  Court  in  terms  of  

Section 8 of the 1986 Act. The Juvenile Court would  

then hold a trial  and record a conviction or acquittal  

depending upon the evidence adduced before it. In an  

ideal situation a case filed before an ordinary Criminal  

Court  when  referred  to  the  Board  or  Juvenile  Court  

may  culminate  in  a  conviction  at  the  hands  of  the  

Board also.  But law does not countenance a situation

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where a full-fledged trial and even an appeal ends in a  

conviction  of  the accused but  the  same is  set  aside  

without providing for a trial by the Board.   

24. With  the  above  observations,  I  agree  with  the  

Order proposed by brother Lokur, J.  

………………….……….…..…J.     (T.S. Thakur)

New Delhi July 10, 2013