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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.      1403               OF     2012     Special Leave Petition (Crl) No. 7271 of 2011  

Ashwani Kumar Saxena    …….. Appellant

Versus

State of M.P.   ……. Respondent

J     U     D     G     M     E     N     T   

K.     S.     RADHAKRISHNAN,     J.   

1. Leave granted.

2. We notice that large number of cases are being brought before this  

Court against orders passed by the criminal courts, on the claim of

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juvenility under Section 7A of the Juvenile Justice (Care and Protection of  

Children) Act, 2000 (for short ‘the J.J. Act’) read with Rule 12 of The  

Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short  

‘the 2007 Rules’), primarily for the reason that many of the criminal courts  

are not properly appraised of the scope of enquiry contemplated under  

those statutory provisions.  We find it appropriate in this case to examine  

the nature of inquiry contemplated under Section 7A of the J.J. Act read  

with Rule 12 of the 2007 Rules, for future guidance and application by the  

Courts, Boards and the Committees functioning under the J.J. Act and  

Rules.  

3. Before considering the above question and other related issues, we  

may examine, what transpired in the case on hand.

Appellant – Ashwani Kumar Saxena and two others, namely, Jitender  

and Ashish were charge-sheeted for the offences punishable under Section  

302 of the Indian Penal Code (for short ‘the IPC’) read with Section 27 of  

Arms Act and Section 302 IPC read with Section 34 of the IPC,  

respectively, for an offence committed on 19.10.2008 at 12.30 am in front  

of Krishna Restaurant, Chhatarpur which resulted in the death of one  

Harbal Yadav  for which Sessions Case No.28/09 was pending before the

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First Additional Sessions Judge, Chhatarpur, Madhya Pradesh (M.P.).   On  

11.11.2008 the appellant filed an application before Chief Judicial  

Magistrate (CJM) Court, Chhatarpur under Sections 6 and 7 of the J.J. Act  

claiming that he was juvenile on the date of the incident and hence, the  

criminal court had no jurisdiction to entertain this case and the case be  

referred to Juvenile Justice Board and he be granted bail.

4. The appellant stated that his date of birth is 24.10.1990 and hence on  

the date of the incident i.e. on 19.10.2008, he was aged only 17 years, 11  

months and 25 days and was thus a juvenile.  In support of this contention,  

he produced the attested mark sheets of the High School of the Board of  

Secondary Education, M.P. Bhopal as well as Eighth standard Board  

Examination, wherein the date of birth was mentioned as 24.10.1990.

5. Smt. Kiran, widow of victim raised objection to the application  

contending that no evidence had been adduced to show that the entry  

made in the school Register was correct and normally parents would not  

give correct date of birth on the admission Register.  Further, it was also  

stated that on physical appearance, as well, he was over 21 years of age  

and therefore the application be dismissed.    Ram Mohan Saxena, father

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of the appellant, was examined as PW1 and he deposed that the date of  

birth of his son was 24.10.1990 and that he was born in the house of Balle  

Chaurasia in Maharajpur and his son was admitted in Jyoti Higher  

Secondary School, wherein his date of birth was also entered as  

24.10.1990.  Reference was also made to the transfer certificate issued by  

the above-mentioned school, since the appellant had studied from 8th  

standard to 10th standard in another school, namely, Ceiling Home English  

School.  Further reliance was also placed on a horoscope, which was  

prepared by one Daya Ram Pandey, marked as exhibit P-4.  Savitri  

Saxena, the mother of the appellant was also examined as PW-4, who also  

deposed that his son was born on 24.10.1990 and had his education at  

Jyoti Higher Secondary School and the School Admission Register kept in  

the school would also indicate his correct date of birth.

6. The C.J.M. court thought of conducting an ossification test for  

determination of the age of the appellant.  Dr. R.P. Gupta, PW-2 conducted  

age identification of the body of the appellant by X ray and opined that  

epiphysis of wrist, elbow, knee and iliac crest was fused and he was of the  

opinion that the appellant was more than 20 years of age on 14.11.2008  

and a report exhibited as P-5 was submitted to that extent.  Dr. S.K.

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Sharma, Medical Officer, District Hospital, Chhatarpur was examined as  

PW-3, who conducted teeth test on the appellant for age identification.  

PW-3 had found that all 32 teeth were there including all wisdom teeth, so  

the age of the appellant was more than 21 years.

7. Dr. R.P. Gupta (PW-2) and Dr. S.K. Sharma (PW-3) were cross-

examined by the counsel for the appellant.  Dr. R.P. Gupta (PW-2) stated  

that there might be margin of 3 years on both side while Dr. S.K. Sharma  

(PW-3) had denied the said statement and he was of the opinion that  

wisdom teeth never erupt before the age of 17 years and might be  

completed upto the age of 21 years.  Dr. S.K. Sharma (PW-3) concluded  

since all four wisdom teeth were found erupted, the appellant would be  

more than 21 years as on 14.11.2008.

8. The C.J.M. Court felt that school records including mark sheets etc.  

cannot be relied upon since teacher, who entered those details, was not  

examined and stated as follows:

“The date of birth mentioned in all the certificates is 24.10.1990.  But it is significant that such date of birth was recorded on the  basis of the date of birth disclosed by the father while getting  him admitted in the school and neither the school admission

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form, admission register in original were called for and even  statement of no teacher, who got admitted in the school, was  got recorded in the court to determine on the basis of which  document actually the date of birth was got recorded as per the  principle of law laid down by the Honourable Supreme Court  that the date of birth should be relied only when it was recorded  in the school on the basis of our authenticated documents and  the parents used to get the date of birth of the children recorded  for some with variation for some benefit and therefore same  cannot be held as authenticated.”

9. The C.J.M., therefore, placing reliance on the report of the  

ossification test took the view that the appellant was more than 18 years of  

age on the date of the incident.  Consequently, the application was  

dismissed vide order dated 1.01.2009.  The appellant aggrieved by the  

above mentioned order filed Criminal Appeal No. 15 of 2009 before the  

First Additional Sessions Judge, Chhatarpur.

10. The appellant again placed considerable reliance on school records  

including mark sheets, transfer certificate etc. and submitted that the  

reliance placed on the odontology report was wrongly appreciated to  

determine the age of the appellant.

The First Additional Sessions Judge stated as follows:

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“On the perusal of entire record it appears that the evidence of  Ram  Mohan Saxena who is father of the appellant is not  reliable as he says that the date of birth of appellant was  mentioned by him at the time of admission in school on the  basis of Horoscope.  It does not bear the date when it was  prepared.  Papers of the Horoscope are crispy.  The     Pandit    who     prepared     the     Horoscope     was     not     examined     for     the     reason    best     known     to     the     appellant.      Therefore,     the     best     evidence     has    been     withheld     by     the     appellant.      Therefore,     adverse     inference     is    to     be     drawn     against     the     appellant.      The     Horoscope     is    manufactured     and     fabricated     and     tailored     for     ulterior     motive  .”

(emphasis added)

11. The First Additional Sessions Judge though summoned the original  

register of Jyoti English School, wanted to know on what basis the date of  

birth of the appellant was entered in the School Admission Register.   PW1,  

the father of the appellant had therefore to rely upon the horoscope on  

which First Additional Sessions Judge has commented as follows:

“Horo-Scope was found to be recently made which does not  mention the date when it was prepared and it appears to be  recently made and original register of the Jyoti Higher  Secondary School also does not mention that on what basis the  date of birth of the appellant was recorded first time in the  school register.  Therefore, the version of the Ram Mohan  Saxena that the date of birth of the appellant was recorded on  the basis of Horoscope     is     not     supported     by     the     register     No.317    of     the     school.      The     Horoscope     does     not     bear     the     date     when     it    was     prepared.      It     appears     to     be     recently     made.      The     original    school     admission     form     and     the     person     who     made     the     entries   

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first     time     in     the     school     has     not     been     examined     in     this     Court.    Therefore,     no     credence     can     be     given     to     such     entry     in     the    school.”

(emphasis added)

12. Learned First Additional Sessions Judge, on the above reasoning,  

dismissed the appeal though the Principal of Jyoti Higher Secondary  

School himself had appeared before the Court with the School Admission  

Register, which showed the date of birth as 24.10.1990.  Aggrieved by the  

same, the appellant approached the High Court and the High Court  

confirmed the order passed by the C.J.M. Court as well as the First  

Additional Sessions Judge stating that the appellant had failed to establish  

his onus that his age was below 18 years on the date of the incident.

13. We are unhappy in the manner in which the C.J.M. Court, First  

Additional Sessions Judge’s Court and the High Court have dealt with the  

claim of juvenility.  Courts below, in our view, have not properly understood  

the scope of the Act particularly, meaning and content of Section 7A of the  

J.J. Act read with Rule 12 of the 2007 Rules   Before examining the scope  

and object of the above mentioned provisions, it will be useful to refer some  

of the decided cases wherein the above mentioned provisions came up for  

consideration, though on some other context.

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14. In Arnit Das v. State of Bihar  , [(2000) 5 SCC 488], this Court held  

that while dealing with the question of determination of the age of the  

accused for the purpose of finding out, whether he is a juvenile or not,  

hyper technical approach should not be adopted while appreciating the  

evidence adduced on behalf of the accused in support of the plea that he is  

a juvenile and if two views are possible on the same evidence, the court  

should lean in favour of holding the accused to be juvenile in borderline  

cases.  In Arnit Das case, this Court has taken the view that the date of  

production before the Juvenile Court was the date relevant in deciding  

whether the appellant was juvenile or not for the purpose of trial.  The law  

laid down in Arnit Das to that extent was held to be not good law, in  

Pratap Singh v. State of Jharkhand [(2005) 3 SCC 551], wherein a five  

Judge Bench of this Court decided the scope of sections 32 and 2(h), 3, 26,  

18 of the Juvenile Justice Act, 1986 and took the view that it was the date  

of the commission of the offence and not the date when the offender was  

produced before the competent court was relevant date for determining the  

juvenility.

15. In Pratap Singh case, this Court held that section 20 of the Act  

would apply only in cases in which accused was below 18 years of age on

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01.04.2001 i.e. the date of which the 2000 Act came into force, but it would  

have no application in case the accused had attained the age of 18 years  

on date of coming into force of the 2000 Act.  Possibly to get over the rigor  

of Pratap Singh, a number of amendments were introduced in 2000 Act  

w.e.f 28.02.2006 by Act 33 of 2006, the scope of which came up for  

consideration in Hari Ram v. State of Rajasthan and Another [(2009) 13  

SCC 211].  In Hari Ram, this court took the view that the Constitution  

Bench judgment in Pratap Singh case was no longer relevant since it was  

rendered under the unamended Act.  In Hari Ram while examining the  

scope of Section 7A of the Act, this Court held that the claim of juvenility  

can be raised before any court at any stage and such claim was required to  

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

Rules framed thereunder, even if the juvenile had ceased to be so on or  

before the date of commencement of the Act.  It was held that a juvenile,  

who had not completed 18 years of age on the date of commission of the  

offence, was also entitled to the benefits of Juvenile Justice Act, 2000 as  

the provisions of section 2(k) had always been in existence even during the  

operation of the 1986 Act.

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16. Further, it was also held that on a conjoint reading of sections 2(k),  

2(l), 7A, 20 and 49 r/w Rules 12 and 98 places beyond all doubt that all  

persons who were below the age of 18 years on the date of commission of  

the offence even prior to 1.4.2001 would be treated as juveniles even if the  

claim of juvenility was raised after they had attained the age of 18 years on  

or before the date of commencement of the Act and were undergoing  

sentence upon being convicted.  With regard to the determination of age,  

this Court held that the determination of age has to be in the manner  

prescribed in Rule 12 of the 2007 Rules and opined that the determination  

of age is an important responsibility cast upon the Juvenile Justice Boards.

17. The scope of Section 7A of the Act and Rule 12 of the 2007 Rules  

again came up for consideration before this Court in Dharambir v. State  

(NCT of Delhi) and Another [(2010) 5 SCC 344].  That was a case where  

the appellant was convicted for offences under section 302/34 and 307/34  

IPC for committing murder of one of his close relatives and for attempting  

to murder his brother.  The appellant was not a juvenile within the meaning  

of 1986 Act, when the offences were committed but had not completed 18  

years of age on that date.

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18. This court held from the language of the Explanation to Section 20  

that in all pending cases, which would include not only trial 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  

2001, when the Act of 2000 came into force, and the provisions of the Act  

would have applied as if the said provision had been in full force for all  

purposes and for all material times when the alleged offence was  

committed.  This Court held clause (l) of Section 2 of the Act 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 the 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 J.J. Board concerned for passing sentence in accordance  

with the provisions of the 2000 Act.

19. This Court in Mohan Mali and Another v. State of Madhya  

Pradesh [(2010) 6 SCC 669] has again considered the scope of Section

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7A of the Act.  That was a case where plea of juvenility was raised before  

this court by the convict undergoing sentence.  The appellant therein was  

convicted under sections 302/34, 326/34 and 324/34 IPC and was  

sentenced to life imprisonment and had already undergone 9 years of  

imprisonment.  In that case a copy of the birth certificate issued by the  

Chief Registrar (Birth and Death) Municipal Corporation, Dhar u/s 12 of the  

Birth and Death Registration Act 1969 maintained by the Corporation was  

produced.  This Court noticed that as per that certificate the date of birth of  

the accused was 12.11.1976.  After due verification, it was confirmed by  

the State of Madhya Pradesh that he was a juvenile on the date of  

commission of the offence and had already undergone more than the  

maximum sentence provided under Section 15 of the 2000 Act by applying  

Rule 98 of the 2007 Rules read with Section 15 and 64 of the 2000 Act.  

The accused was ordered to be released forthwith.

20. In Jabar Singh v Dinesh and Another [(2010) 3 SCC 757], a two  

Judge Bench of this Court while examining the scope of Section 7A of the  

Act and Rule 12 of the 2007 Rules and Section 35 of the Indian Evidence  

Act took the view that the trial court had the authority to make an enquiry  

and take necessary evidence to determine the age.  Holding that the High

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Court was not justified in exercise of its revisional jurisdiction to upset the  

finding of the trial court, remitted the matter to the trial court for trial of the  

accused in accordance with law treating him to be not a juvenile at the time  

of commission of the alleged offence.  The court noticed that the trial court  

had passed the order rejecting the claim of juvenility of respondent No.1  

therein on 14.02.2006, the Rules, including Rule 12 laying down the  

procedure to be followed in determination of the age of a juvenile in conflict  

with law, had not come into force.  The court opined that the trial court was  

not required to follow the procedure laid down in Section 7A of the Act or  

Rule 12 of the Rules and therefore in the absence of any statutory  

provision laying down the procedure to be followed in determining a claim  

of juvenility raised before it, the Court had to decide the claim of juvenility  

on the materials or evidence brought on record by the parties and section  

35 of the Evidence Act.

21. The court further stated that the entry of date of birth of respondent  

No.1 in the admission form, the school records and transfer certificates did  

not satisfy the condition laid down in Section 35 of the Evidence Act in as  

much as the entry was not in any public or official register and was not  

made either by a public servant in the discharge of his official duty or by

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any person in performance of a duty specially enjoined by the law of the  

country and therefore, the entry was not relevant under section 35 of the  

Evidence Act for the purpose of determining the age of respondent no.1 at  

the time of commission of the alleged offence.   We have our own  

reservations on the view expressed by the bench in Jabar Singh’s case.  

(supra).

22. In Dayanand v. State of Haryana [(2011) 2 SCC 224]., this Court  

considered the scope of sections 2(k), 2(l), 7-A 20 and 64 (as amended by  

Act 33 of 2006 w.e.f. 22.08.2006].  This Court dealt with a case where the  

appellant was aged 16 years 5 months and 19 days on the date of  

occurrence, the Court held that he was a juvenile and thus could not be  

compelled to undergo the rigorous imprisonment as imposed by the trial  

court and affirmed by High Court.  This Court set aside the sentence and  

ordered that the appellant be produced before the J.J. Board for passing  

appropriate sentence in accordance with 2000 Act.

23. In Anil Agarwal and Another v. State of West Bengal [(2011) 2  

SCALE 429], this Court was examining the claim of juvenility made at a  

belated stage stating that the appellants were minors at the time of the

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alleged offence and hence should not be tried along with the adult co-

accused.  The trial court dismissed the appellant’s application as not  

maintainable as it had been filed at a belated stage.  The High Court, in  

revision, while holding that the application had been made belatedly,  

granted liberty to appellants to raise their plea of juvenility and to establish  

the same before the Sessions Judge at the stage of the examination under  

section 313 Cr.P.C.

24. Reversing the finding recorded by the High Court, this Court took the  

view that Section 7A of the Act, as it now reads, gives right to any accused  

to raise the question of juvenility at any point of time and if such an issue is  

raised, the Court is under an obligation to make an inquiry and deal with  

that claim.  The court held Section 7A has to be read along with Rule 12 of  

the 2007 Rules.  This Court, therefore, set aside the order of the High Court  

and directed the trial court to first examine the question of juvenility and in  

the event, the trial court comes to a finding that the appellants were minors  

at the time of commission of the offence, they be produced before the J.J.  

Board for considering their cases in accordance with the provisions of the  

2000 Act.

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25. We may in the light of the judgments referred to herein before and  

the principles laid down therein while examining the scope of Section 7 A of  

the Act, Rule 12 of the 2007 Rules and Section 49 of the Act examine the  

scope and ambit of inquiry expected of a court, the J.J. Board and the  

Committee while dealing with a claim of juvenility.  

26. We may, however, point out that none of the above mentioned  

judgments referred to earlier had examined the scope, meaning and  

content of Section 7A, Rule 12 of the 2007 Rules and the nature of the  

inquiry contemplated in those provisions.  For easy reference, let us extract  

Section 7A of the Act and Rule 12 of the 2007 Rules:

“Section 7A - Procedure to be followed when claim of  juvenility is raised before any court.

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

Provided that a claim of juvenility may be raised before any  court and it shall be recognised at any stage, even after final  disposal of the case, and such claim shall be determined in  terms of the provisions contained in this Act and the rules

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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  order, and the sentence if any, passed by a court shall be  deemed to have no effect.”

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

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

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

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

(b) and only in the absence of either (i), (ii) or (iii) of clause  (a) above, the medical opinion will be sought from a duly

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constituted Medical Board, which will declare the age of the  juvenile or child. In case exact assessment of the age cannot  be done, the Court or the Board or, as the case may be, the  Committee, for the reasons to be recorded by them, may, if  considered necessary, give benefit to the child or juvenile by  considering his/her age on lower side within the margin of  one year.  

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

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

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

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

(emphasis added)

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27. Section 7A, obliges the court only to make an inquiry,     not     an    

investigation     or     a     trial  , an inquiry not under the Code of Criminal Procedure,  

but under the J.J. Act.  Criminal Courts, JJ Board, Committees etc., we  

have noticed, proceed as if they are conducting a trial, inquiry, enquiry or  

investigation as per the Code. Statute requires the Court or the Board only  

to make an ‘inquiry’ and in what manner that inquiry has to be conducted is  

provided in JJ Rules.  Few of the expressions used in Section 7A and Rule  

12 are of considerable importance and a reference to them is necessary  

to understand the true scope and content of those provisions.  Section 7A  

has used the expression “court shall make an inquiry”, “take such evidence  

as may be necessary” and “but not an affidavit”.   The Court or the Board  

can accept as evidence something more than an affidavit i.e. the Court or  

the Board can accept documents, certificates etc. as evidence need not be  

oral evidence.

28. Rule 12 which has to be read along with Section 7A has also used  

certain expressions which are also be borne in mind.  Rule 12(2) uses the  

expression “prima facie”  and “on the basis of physical appearance”  or  

“documents, if available”.  Rule 12(3) uses the expression “by seeking

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evidence by obtaining”.   These expressions in our view re-emphasize the  

fact that what is contemplated in Section 7A and Rule 12 is only an inquiry.  

Further, the age     determination     inquiry   has to be completed and age be  

determined within thirty days from the date of making the application; which  

is also an indication of the manner in which the inquiry has to be conducted  

and completed. The word ‘inquiry’ has not been defined under the J.J. Act,  

but Section 2(y) of the J.J. Act says that all words and expressions used  

and not defined in the J.J. Act but defined in the Code of Criminal  

Procedure, 1973 (2 of 1974), shall have the meanings respectively  

assigned to them in that Code.

29. Let us now examine the meaning of the words inquiry, enquiry,  

investigation and trial as we see in the Code of Criminal Procedure and  

their several meanings attributed to those expressions.  

“Inquiry” as defined in Section 2(g), Cr.P.C. reads as follows:

“Inquiry”  means every inquiry, other than a trial, conducted  

under this Code by a Magistrate or Court.  

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The word “enquiry”  is not defined under the Code of Criminal  

Procedure which is an act of asking for information and also  

consideration of some evidence, may be documentary.   

“Investigation” as defined in section 2(h), Cr.P.C. reads as follows:

“Investigation includes all the proceedings under this code for  

the collection of evidence conducted by a police officer or by  

any person (other than a Magistrate) who is authorized by a  

Magistrate in this behalf.

The expressions “trial” has not been defined in the Code of Criminal  

Procedure but must be understood in the light of the expressions  

“inquiry”  or “investigation”  as contained in sections 2(g) and 2(h) of  

the Code of Criminal Procedure.”

30.  The expression “trial”  has been generally understood as the  

examination by court of issues of fact and law in a case for the purpose of  

rendering the judgment relating some offences committed.  We find in very  

many cases that the Court /the J.J. Board while determining the claim of  

juvenility forget that what they are expected to do is not to conduct an  

inquiry under Section 2(g) of the Code of Criminal Procedure, but an inquiry

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under the J.J. Act, following the procedure laid under Rule 12 and not  

following the procedure laid down under the Code.

31. The Code lays down the procedure to be followed in every  

investigation, inquiry or trial for every offence, whether under the Indian  

Penal Code or under other Penal laws.  The Code makes provisions for not  

only investigation, inquiry into or trial for offences but also inquiries into  

certain specific matters.  The procedure laid down for inquiring into the  

specific matters under the Code naturally cannot be applied in inquiring into  

other matters like the claim of juvenility under Section 7A read with Rule 12  

of the 2007 Rules.  In other words, the law regarding the procedure to be  

followed in such inquiry must be found in the enactment conferring  

jurisdiction to hold inquiry.

32. Consequently, the procedure to be followed under the J.J. Act in  

conducting an inquiry is the procedure laid down in that statute itself i.e.  

Rule 12 of the 2007 Rules.  We cannot import other procedures laid down  

in the Code of Criminal Procedure or any other enactment while making an  

inquiry with regard to the juvenility of a person, when the claim of juvenility  

is raised before the court exercising powers under section 7A of the Act.

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Many of the cases, we have come across, it is seen that the Criminal  

Courts are still having the hangover of the procedure of trial or inquiry  

under the Code as if they are trying an offence under the Penal laws  

forgetting the fact that the specific procedure has been laid down in section  

7A read with Rule 12.

33. We also remind all Courts/J.J. Board and the Committees functioning  

under the Act that a duty is cast on them to seek evidence by obtaining the  

certificate etc. mentioned in Rule 12 (3) (a) (i) to (iii).  The courts in such  

situations act as a parens patriae because they have a kind of guardianship  

over minors who from their legal disability stand in need of protection.

34. “Age determination inquiry” contemplated under section 7A of the Act  

r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in  

that process, the court can obtain the matriculation or equivalent  

certificates, if available.  Only in the absence of any matriculation or  

equivalent certificates, the court need obtain the date of birth certificate  

from the school first attended other than a play school.  Only in the  

absence of matriculation or equivalent certificate or the date of birth  

certificate from the school first attended, the court need obtain the birth

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certificate given by a corporation or a municipal authority or a panchayat  

(not an affidavit but certificates or documents).  The question of  

obtaining medical opinion from a duly constituted Medical Board arises only  

if the above mentioned documents are unavailable.  In case exact  

assessment of the age cannot be done, then the court, for reasons to be  

recorded, may, if considered necessary, give the benefit to the child or  

juvenile by considering his or her age on lower side within the margin of  

one year.

35. Once the court, following the above mentioned procedures, passes  

an order; that order shall be the conclusive proof of the age as regards  

such child or juvenile in conflict with law.  It has been made clear in  

subsection (5) or Rule 12 that no further inquiry shall be conducted by the  

court or the Board after examining and obtaining the certificate or any other  

documentary proof after referring to sub-rule (3) of the Rule 12.  Further,  

Section 49 of the J.J. Act also draws a presumption of the age of the  

Juvenility on its determination.   

36. Age determination inquiry contemplated under the JJ Act and Rules  

has nothing to do with an enquiry under other legislations, like entry in

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service, retirement, promotion etc.  There may be situations where the  

entry made in the matriculation or equivalent certificates, date of birth  

certificate from the school first attended and even the birth certificate given  

by a Corporation or a Municipal Authority or a Panchayat may not be  

correct.  But Court, J.J. Board or a Committee functioning under the J.J.  

Act is not expected to conduct such a roving enquiry and to go behind  

those certificates to examine the correctness of those documents, kept  

during the normal course of business.  Only in cases where those  

documents or certificates are found to be fabricated or manipulated, the  

Court, the J.J. Board or the Committee need to go for medical report for  

age determination.

37. We have come across several cases in which trial courts have  

examined a large number of witnesses on either side including the conduct  

of ossification test and calling for odontology report, even in cases, where  

matriculation or equivalent certificate, the date of birth certificate from the  

school last or first attended, the birth certificate given by a corporation or a  

municipal authority or a panchayat are made available.  We have also  

come across cases where even the courts in the large number of cases

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express doubts over certificates produced and carry on detailed probe  

which is totally unwarranted.    

38. We notice that none of the above mentioned principles have been  

followed by the courts below in the instant case.  The court examined the  

question of juvenility of the appellant as if it was conducting a criminal trial  

or inquiry under the Code.  Notice was issued on the application filed by the  

juvenile and in response to that State as well as the widow of the victim  

filed objection to the application.  The father of the appellant was cross  

examined as PW 1 and was permitted to produce several documents  

including the mark sheet of class five marked as exhibit P-1, mark sheet of  

class eight marked as exhibit P-2, mark sheet of Intermediate Education  

Board, MP, marked as exhibit P-3, horoscope prepared by Daya Ram  

Pandey marked as exhibit P-4.  Further, the mother of the appellant was  

examined as PW 4, Transfer Certificate was produced on the side of the  

appellant which was marked as exhibit P-6.  Noticing that the parents of the  

appellant were attempting to show a lesser age of the child so as to escape  

from the criminal case, the Court took steps to conduct ossification test.  

Dr. R.P. Gupta was examined as PW 2 who had submitted the report.  Dr.  

S.K. Sharma was examined as PW 3.  Placing considerable reliance on the

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report submitted after conducting ossification test, the application was  

dismissed by the trial court.   

39. We find that the appellate court, of course, thought it necessary to  

summon the original register of Jyoti English School where the appellant  

was first admitted and the same was produced by the Principal of the  

School.  We have called for the original record from the Court and perused  

the same.    On 4.09.2009, the Sessions Judge passed the following order:

04.02.09.  Court found it necessary to call for the Admission Register of the  appellant in Jyoti High Secondary School and ordered the production of the  Register of Admission, from the concerned school in ST. No. 29/09.  

   Sd/- Judge

On 09.02.2009, another order was passed as follows:

From     Jyoti     High     Secondary     School,     the     Principal     of     the     school     was     present    along     with     the     concerned     admission     register.      He     produced     the     copy     of     the    admission     register     before     the     court     after     proving     its     factum  .  Register was  returned after the perusal.  The Counsel is directed that if he wants to  produce any other evidence/documents, he may do so.

(emphasis added)

Sd/-      Judge

On 11.02.09, after hearing the counsel on either side, the Court passed the  

order:

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The counsel for the state Shri     Nayak,     APG     stated/conceded     that     in     respect    to     refute/rebuttal     of     the     Admission     Register     the     state     do     not     wish     to     file    further     Evidence/documents  .

(emphasis added)

Sd/-     Judge

On 12.02.2009, after hearing counsel on either side, the Court again  

passed the order:

In  presence of the advocates, order pronounced in the open court that this  Appeal is hereby  Dismissed.   

Sd/- Judge

40. We fail to see, after having summoned the admission register of the  

Higher Secondary School where the appellant had first studied and after  

having perused the same produced by the principal of school and having  

noticed the fact that the appellant was born on 24.10.1990, what prompted  

the Court not to accept that admission register produced by the principal of  

the school.  The date of birth of the appellant was discernible from the  

school admission register.  Entry made therein was not controverted or  

countered by the counsel appearing for the State or the private party, which

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is evident from the proceedings recorded on 11.02.2009 and which  

indicates that they had conceded that there was nothing to refute or rebut  

the factum of date of birth entered in the School Admission Register.  We  

are of the view the above document produced by the principal of the school  

conclusively shows that the date of birth was 24.10.1990 hence section  

12(3)(a)(i)(ii) has been fully satisfied.

41. The Sessions Judge, however, has made a fishing inquiry to  

determine the basis on which date of birth was entered in the school  

register, which prompted the father of the appellant to produce a  

horoscope.  The horoscope produced was rejected by the Court stating that  

the same was fabricated and that the Pandit who had prepared the  

horoscope was not examined.  We fail to see what types of inquiries are  

being conducted by the trial courts and the appellate courts, when the  

question regarding the claim of juvenility is raised.   

42. Legislature and the Rule making authority in their wisdom have in  

categorical terms explained how to proceed with the age determination  

inquiry.  Further, Rule 12 has also fixed a time limit of thirty days to  

determine the age of the juvenility from the date of making the application  

for the said purpose.   Further, it  is  also  evident  from  the  Rule  that  if  

the  assessment  of age could not be done, the benefit would go to the

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child or juvenile considering his / her age on lower side within the margin of  

one year.   

43. The Court in Babloo Parsi v. State of Jharkhand and Another  

[(2008) 13 SCC 133] held, in a case where the accused had failed to  

produce evidence/certificate in support of his claim, medical evidence can  

be called for.  The court held that the medical evidence as to the age of a  

person, though a useful guiding factor is not conclusive and has to be  

considered along with other cogent evidence.  This court set aside the  

order of the High Court and remitted the matter to the Chief Judicial  

Magistrate heading the Board to re-determine the age of the accused.

44. In Shah Nawaz v. State of Uttar Pradesh and Another [(2011) 13  

SCC 751], the Court while examining the scope of Rule 12, has reiterated  

that medical opinion from the Medical Board should be sought only when  

matriculation certificate or equivalent certificate or the date of birth  

certificate from the school first attended or any birth certificate issued by a  

Corporation or a municipal authority or a panchayat or municipal is not  

available.  The court had held entry related to date of birth entered in the  

mark sheet is a valid evidence for determining the age of the accused  

person so also the school leaving certificate for determining the age of the  

appellant.

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45.  We are of the view that admission register in the school in which the  

candidate first attended is a relevant piece of evidence of the date of birth.  

The reasoning that the parents could have entered a wrong date of birth in  

the admission register hence not a correct date of birth is equal to thinking  

that parents would do so in anticipation that child would commit a crime in  

future and, in that situation, they could successfully raise a claim of  

juvenility.

46. We are, therefore, of the view that the appellant has successfully  

established his juvenility on the date of occurrence of the crime i.e.  

19.10.2008 on which date he was aged only 17 years 11 months 25 days.  

The appellant has already faced the criminal trial in sessions case No. 28  

of 2009 and the Court found him guilty along with two others under section  

302 IPC and has been awarded life imprisonment which is pending in  

appeal, before the Hon’ble Court at Jabalpur as Crime Appeal No. 1134 of  

2009.

47. We notice that the accused is also involved in few other criminal  

cases as well.  Since we have found that the appellant was a juvenile on  

the date of the incident, in this case, we are inclined to set aside the

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sentence awarded in sessions case No. 28/2009 by Sessions Court and  

direct the High Court to place the records before J.J. Board for awarding  

appropriate sentence in accordance with the provisions of Act, 2000, and if  

the appellant has already undergone the maximum sentence of three years  

as prescribed in the Act, needless to say he has to be let free, provided he  

is not in custody in any other criminal case.  We are informed that the  

appellant is involved in few other criminal cases as well, those cases will  

proceed in accordance with law.

48. The appeal is allowed.  Sentence awarded by the court below is  

accordingly set aside and the case records be placed before the concerned  

J.J. Board for awarding appropriate sentence.

..……………………………J.     (K.S. Radhakrishnan)

  …………………………..…J.     (Madan B. Lokur)

New Delhi; September 13, 2012