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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO. 1308 OF 2014 [Arising out of Special Leave Petition (Crl.) No.9412 of 2013]

Kulai Ibrahim @ Ibrahim … Appellant

Vs.

State Rep. by the Inspector of Police B-1, Bazaar Police Station, Coimbatore.  … Respondent

O R D E R

(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. In this special leave petition, judgment and order dated  

15/10/2004 passed  by  the  Madras  High  Court  in  Criminal  

Appeal No.963 of 2001 is under challenge.

3. The appellant along with others was tried by the IInd  

Additional  Sessions  Judge,  Coimbatore  for  offences

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punishable  under  Sections  147,  148,  149  and  302  of  the  

Indian  Penal  Code  (“the  IPC”).   The  Sessions  Court  

convicted the appellant and 2 others for offence punishable  

under Section 148 of the IPC and sentenced them to suffer  

rigorous imprisonment for one year each and to pay a fine of  

Rs.1,000/-  each,  in  default,  to  undergo  rigorous  

imprisonment for one month each.   The Sessions Court also  

convicted each of them for offence punishable under Section  

302 of the IPC and sentenced each of them to imprisonment  

for  life.   The  appellant  along  with  the  other  2  accused  

preferred  an  appeal  to  the  High  Court.  By  the  impugned  

judgment  and  order,  the  High  Court  dismissed  the  said  

appeal. Being aggrieved by the dismissal of the appeal, the  

appellant has approached this Court.  

3. In the petition, there is no challenge to the conviction  

and sentence on merits.  The only point raised is that the  

appellant was a juvenile when the offence was committed  

and,  hence,  he  cannot  be  convicted.   However,  in  the  

interest of justice, we have carefully perused the impugned  

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judgment and the relevant record. We are of the considered  

opinion that the order of conviction and sentence is perfectly  

legal.    

4. We must,  therefore,  look into the appellant’s  plea of  

juvenility.  At the outset, we must mention that admittedly  

the plea of juvenility was not raised by the appellant in the  

trial court.  It was for the first time raised in the High Court  

while  the  appeal  was  being  argued.   The High  Court  has  

noted in the impugned judgment that the plea of juvenility  

was neither raised before the trial court, nor raised in the  

memo  of  appeal  before  the  High  Court.   The  High  Court  

noted that  no application was filed before the High Court  

seeking permission to adduce evidence to establish that the  

appellant  was  a  juvenile.   The  High  Court,  in  the  

circumstances, rejected the plea.  

5. The only question which now arises for consideration of  

this Court is whether the appellant was ‘a juvenile’ within the  

meaning of the term ‘juvenile’ as defined under the Juvenile  

Justice (Care and Protection of Children) Act, 2000 (“the J.J.  

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Act, 2000”) when the offence was committed and whether  

the plea of juvenility can be raised by him at this stage.   

6. Section 7-A states the procedure to be followed when  

claim of  juvenility  is  raised  before  any  court.   Proviso  to  

Section 7-A states that a claim of juvenility may be raised  

before any court  and it  shall  be recognized at  any stage,  

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

determined in terms of the provisions contained in the J.J.  

Act, 2000 and the rules made thereunder even if the juvenile  

has ceased to be so on or before the date of commencement  

of the J.J. Act, 2000.  In this Court, therefore, the counsel for  

the appellant has renewed the plea of juvenility.  The case of  

the appellant is that as on 2/9/1997, when the offence was  

committed, he was 17 years and 4 months’ old.  Section 2(k)  

of the J.J. Act, 2000 defines ‘juvenile’ as a person who has  

not completed 18 years of age.  Section 2(l) defines ‘juvenile  

in  conflict  with  law’  as  a  juvenile  who is  alleged to  have  

committed an offence and has not completed 18 years of  

age as on the date of commission of such offence.  

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7. It is a settled position in law on a fair consideration of  

Section 2(k), 2(l), 7-A, 20 and 49 of the J.J. Act, 2000 read  

with  Rules  12  and  98  of  the  Juvenile  Justice  (Care  and  

Protection of Children) Rules, 2007 (“the said Rules”) 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, which is  

the date of commencement of J.J. Act, 2000 could be treated  

as juveniles even if the claim of juvenility is raised after they  

have attained the age of 18 years on or before date of the  

commencement of the J.J. Act, 2000 which is 1/4/2001 and  

were  undergoing  sentences  upon  being  convicted  (See  

Ketankumar Gopalbhai Tandel  v.  State of Gujarat  1  ).  

Therefore,  the  claim  of  juvenility  can  be  raised  by  the  

appellant.   

8. Along with the criminal appeal, the appellant has filed  

an  application  praying  that  he  may be permitted  to  urge  

additional  grounds  and  bring  on  record  additional  

documents.  In the application, it is admitted that in the High  

1 JT 2013 (10) SC 554

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Court  without  filing  necessary  documents,  the  plea  of  

juvenility was raised and it was rejected by the High Court.  

It is further stated that the mother of the appellant died in  

the year 1997.  After the death of his mother, his father had  

remarried and left the appellant and his brother alone.  The  

appellant  and his  brother  were living on their  own.    The  

appellant  was  tried  for  murder  in  the  instant  case.  Since  

there was nobody to help the appellant, no steps were taken  

to bring the age of the appellant to the notice of the trial  

court  as  well  as  the  High  Court.   It  was  only  during  the  

argument before the High Court that this plea was raised.  

Since the appellant was in jail, no steps were taken to obtain  

documents regarding his date of birth.  It is further stated  

that during the year 2011, the appellant’s father came back  

to him and enquired about the case in which the appellant is  

convicted.  Then he took steps to obtain school certificate  

from the Good Shephered Primary School, Fort, Coimbatore  

where the appellant had studied.  It is further stated that the  

appellant’s father was advised to obtain birth certificate from  

the Judicial Magistrate, Coimbatore as per the provisions of  

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Section 13(3) of the Birth and Death Registration Act, 1969.  

Accordingly, his father filed a petition under the said Act and  

the Judicial  Magistrate,  after   making enquiry,  verified the  

date of birth of the appellant.  Vide order dated 1/2/2013,  

the  Judicial  Magistrate  directed  the  Coimbatore  City  

Municipal Corporation to register the birth of the appellant in  

the Birth Register as 23/5/1980.  It appears that as directed  

by  the  Judicial  Magistrate,  the  Coimbatore  City  Municipal  

Corporation  has  issued  birth  certificate  to  the  appellant  

showing his date of birth as 23/5/1980.  Thus, the appellant  

is  relying  on  the  school  certificate  issued  by  the  Good  

Shephered Primary School,  Fort,  Coimbatore and the birth  

certificate  issued  by  the  Coimbatore  City  Municipal  

Corporation.  These documents on which the appellant has  

placed reliance are annexed to the affidavit and have thus  

come on record.  

9. Counter  affidavit  has  been  filed  on  behalf  of  the  

respondent  by  R.  Srinivasalu  s/o.  N.  Ramachandran,  

presently  working  as  Inspector  of  Police,  B-12,  Ukkadam  

Police Station, Coimbatore City, Tamil Nadu.  In this affidavit,  

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it is stated that the appellant, with connivance of his father  

Mr. Abdul Razak, conspired and obtained fake record sheet  

and produced the same before the court and obtained ‘Birth  

Certificate’ showing appellant’s birth date as 23/5/1980 by  

practicing fraud to portray him as a juvenile.  The gist of the  

affidavit is as under:

a) When  the  appellant  surrendered  before  

Judicial Magistrate, Udumalpet on 18/9/1997,  

in the Surrender Petition, he gave his age as  

20 years.

b) In  the  Memo  of  Appearance  filed  by  the  

appellant’s counsel at that stage, his age is  

mentioned as 20 years.  

c) In  the  Form  of  Remand  Warrant  dated  

18/9/1997 issued by learned Magistrate, the  

appellant’s age is mentioned as 20 years as  

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per  the  Descriptive  Roll.   Form of  Remand  

warrant is annexed to the affidavit.  

d) As  required  by  the  J.J.  Act,  2000,  the  

appellant  has  not  produced  the  admission  

register of the school which he attended for  

the first time.  

e) The  appellant  has  produced  record  sheet  

issued  by  Good  Shepherd  Primary  School,  

Fort,  Coimbatore  dated  15/11/2011.   The  

enquiry made by the respondent reveals that  

no record sheet was ever issued by the Head  

Master of the school and, hence, it is a forged  

document.  The respondent has verified the  

school admission register maintained at Good  

Shepherd Primary School and found that no  

such student by name ‘A. Ibrahim s/o. Abdul  

Razak’  studied  in  that  school,  at  all.   The  

respondent had filed a requisition to the Head  

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Master to make enquiry and find out whether  

the record sheet filed by the appellant before  

this  Court  dated 15/11/2011  was  issued by  

the Head Master  of  that school.   The Head  

Master gave a written reply to the respondent  

that he had been working in the said school  

from  1/6/2010  onwards  and  that  the  said  

record sheet produced by the appellant was  

not issued by the school.  The Head Master  

further  stated  that  the  certificate  has  been  

signed by one Jesudas as the Head Master on  

15/11/2011,  but  no  such  person  by  name  

Jesudas was the Head Master of the school as  

on 15/11/2011.  Jesudas had retired as Head  

Master as early as on 31/5/2010.   

f) The present Head Master of the school  has  

filed  complaint  at  B-12,  Ukkadam  Police  

Station, Coimbatore City that somebody has  

issued a forged record sheet in favour of A.  

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Ibrahim s/o. Abdul Razak purporting to have  

been issued by the Head Master of the said  

school  and  Crime  No.1722  of  2013  is  

registered under Sections 467, 471 and 420  

of the IPC on 31/12/2013.  

g) Verification  certificate  dated  31/12/2013  

issued  by  the  present  Head  Master  Mr.  A.  

Francis  Clement  Vimal  establishes  that  he  

verified  and  compared  the  available  school  

records  and  concluded  that  the  alleged  

admission No.526 is related to S. Dinakaran  

s/o. Sreedharan, who is some other student  

of  the  institution  and  certainly  not  the  

appellant.   The  record  sheet  is,  therefore,  

forged.   Verification  report  of  the  present  

Head  Master  is  annexed  to  the  counter  

affidavit.  Copies of the complaint filed by the  

present Head Master,  the FIR registered on  

the  basis  thereof  are  also  annexed  to  the  

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counter  affidavit.   It  is  stated  that  the  

investigation is in progress.   

h) K. Abdul Razak s/o. Late Sulaiman filed CMP  

No.57  of  2013  in  the  court  of  Judicial  

Magistrate,  Coimbatore  stating  that  he  was  

father  of  A.  Ibrahim,  the  appellant.   He  

prayed for  an  order  directing  the  Municipal  

Corporation  to  register  the  birth  of  the  

appellant  in  the  Birth  Register.   The  only  

respondent impleaded therein was the Birth  

& Death Registrar, Coimbatore City Municipal  

Corporation.   This  petition  was  filed  under  

Section  13(3)  of  the  Birth  &  Death  

Registration  Act,  1969.   Certain  documents  

which were not genuine were filed along with  

it for a declaration that date of birth of the  

appellant was 23/5/1980.  Inspector of Police,  

Coimbatore City, ought to have been made a  

party  to  the application and it  should  have  

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been  informed  to  the  court  that  the  

documents  were  to  be  submitted  in  the  

Supreme Court, but that was not done.  

i) The order passed by the Judicial  Magistrate  

shows  that  it  was  an  ex-parte  order.   The  

Birth  &  Death  Registrar,  Coimbatore  City  

Municipal Corporation did not appear before  

the court.   It  is not mentioned whether the  

court  summons  was  served  on  the  Birth  &  

Death  Registrar.   The  Magistrate’s  order  

states that five documents were produced by  

the appellant’s side and they were marked.  

These  documents  were  not  proved  in  

accordance  with  the  procedures  known  to  

law.  

j) The appellant has not produced matriculation  

or  equivalent  certificate  or  date  of  birth  

certificate from the school first attended by  

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him as per Rule 12 of the said Rules.  Even  

though,  he  has produced a  birth  certificate  

issued  by  the  Municipal  Corporation,  it  is  

evident  that  the  birth  of  the appellant  was  

not entered in the birth register soon after his  

birth, but it was entered very recently by the  

end of 2013.  Therefore, the certificate issued  

by  the  Corporation  does  not  inspire  

confidence.  

10. In   Abuzar  Hossain   alias  Gulam  Hossain    v.   

State of West Bengal2 a three Judge Bench of this Court  

considered  the  question  as  to  when  should  a  claim  of  

juvenility be recognized and sent for determination when it  

is raised for the first time in appeal or before this Court or  

raised in trial and appeal but not pressed and then pressed  

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

time after final disposal of the case.   After considering the  

2 (2012) 10 SCC 489

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relevant judgments on the point this Court summarized the  

position in law as follows:

“39.1. A claim of juvenility may be raised at any  stage even after the final disposal of the case. It   may be raised for the first time before this Court   as  well  after  the final  disposal  of  the case.  The   delay in raising the claim of juvenility cannot be a   ground for  rejection of  such claim.  The claim of   juvenility  can  be  raised  in  appeal  even  if  not   pressed before the trial court and can be raised   for  the  first  time  before  this  Court  though  not   pressed before the trial  court and in the appeal   court.

39.2. For making a claim with regard to juvenility   after conviction, the claimant must produce some  material which may prima facie satisfy the court   that  an  inquiry  into  the  claim  of  juvenility  is   necessary. Initial burden has to be discharged by   the person who claims juvenility.

39.3. As  to  what  materials  would  prima  facie   satisfy  the  court  and/or  are  sufficient  for   discharging  the  initial  burden  cannot  be   catalogued  nor  can  it  be  laid  down  as  to  what   weight  should  be  given  to  a  specific  piece  of   evidence  which  may  be  sufficient  to  raise   presumption  of  juvenility  but  the  documents   referred  to  in  Rules  12(3)(a)(i)  to  (iii)  shall   definitely be sufficient for prima facie satisfaction   of  the  court  about  the  age  of  the  delinquent   necessitating further enquiry under Rule 12. The  statement recorded under Section 313 of the Code   is too tentative and may not by itself be sufficient   ordinarily to justify or reject the claim of juvenility.   The  credibility  and/or  acceptability  of  the   

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documents  like  the  school  leaving  certificate  or   the  voters’  list,  etc.  obtained  after  conviction   would depend on the facts and circumstances of   each  case  and  no  hard-and-fast  rule  can  be   prescribed that they must be prima facie accepted  or  rejected.  In  Akbar Sheikh [Akbar Sheikh  v.  State  of  W.B.   (2009)  7  SCC  415]  and  Pawan  [Pawan  v.   State of Uttaranchal (2009) 15 SCC  259]  these documents were not found prima facie   credible while in  Jitendra Singh [Jitendra Singh  v.   State  of  U.P.  (2010)  13  SCC  523] the  documents  viz.  school  leaving  certificate,   marksheet  and  the  medical  report  were  treated  sufficient for directing an inquiry and verification   of the appellant’s age.  If  such documents prima  facie  inspire  confidence  of  the  court,  the  court   may act upon such documents for the purposes of   Section  7-A  and  order  an  enquiry  for   determination of the age of the delinquent.

39.4. An affidavit  of  the claimant or any of the   parents or a sibling or a relative in support of the   claim  of  juvenility  raised  for  the  first  time  in   appeal or revision or before this Court during the   pendency of  the matter  or  after  disposal  of  the  case shall not be sufficient justifying an enquiry to   determine  the  age  of  such  person  unless  the   circumstances  of  the  case  are  so  glaring  that   satisfy the judicial conscience of the court to order   an enquiry into determination of  the age of  the   delinquent.

39.5. The  court  where  the  plea  of  juvenility  is   raised for the first time should always be guided  by the objectives of the 2000 Act and be alive to   the  position  that  the  beneficent  and  salutary   provisions  contained  in  the  2000  Act  are  not   defeated by the hypertechnical approach and the   persons  who  are  entitled  to  get  benefits  of  the   

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2000 Act get such benefits. The courts should not   be  unnecessarily  influenced  by  any  general   impression that in schools the parents/guardians   understate the age of their wards by one or two   years for future benefits or that age determination   by medical examination is not very precise. The   matter  should be considered prima facie on the   touchstone of preponderance of probability.

39.6. Claim of  juvenility  lacking in  credibility  or   frivolous claim of juvenility or patently absurd or   inherently improbable claim of juvenility must be  rejected by the court at the threshold whenever   raised.”

11. In  Ashwani  Kumar Saxena v.  State of  M.P.  3   this  

Court dealt with provisions of the J.J. Act, 2000 and the said  

Rules.  The appellant therein and two others were charge-

sheeted inter alia for offences punishable under Section 302  

of the IPC.  The case was pending before the Sessions Court.  

The appellant filed an application before the Chief Judicial  

Magistrate  under  Sections  6  and  7  of  the  J.J.  Act,  2000  

claiming that he was a juvenile on the date of the incident  

and,  hence,  the  criminal  court  had  no  jurisdiction  to  

entertain  the  case  and  that  it  be  transferred  to  Juvenile  

Justice  Board.   In  support  of  his  claim,  the  appellant  

3 (2012) 9 SCC 750

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produced the attested marksheets of the High School of the  

Board  of  Secondary  Education  as  well  as  Eighth  standard  

Board  Examination.   The  widow  of  the  victim  raised  an  

objection. The appellant’s father was examined, who placed  

reliance  on  several  documents  like  the  appellant’s  

horoscope, transfer certificate issued by his school, etc.  The  

Chief  Judicial  Magistrate  conducted  the  appellant’s  

ossification test and the medical evidence revealed that the  

appellant  was  a  major  when  the  offence  was  committed.  

The  Chief  Judicial  Magistrate  placed  reliance  on  the  

ossification test and took the view that the appellant was a  

major on the date of incident.  An appeal was carried to the  

Sessions  Court.   The  Sessions  Court  severely  commented  

inter alia on the evidence of the father of the appellant, on  

the  non-examination  of  the  Pandit  who  had prepared  the  

horoscope  and  dismissed  the  appeal.   The  High  Court  

confirmed the Sessions Court’s order.  This Court considered  

the  scheme  of  the  J.J.  Act,  2000  and  the  said  Rules  and  

observed as under:  

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“32.  Age  determination  inquiry”  contemplated   under Section 7-A of the Act read with 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  needs  to   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  needs  to  obtain  the  birth   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 abovementioned  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.”

12. Though in this paragraph, this Court observed that the  

question  of  obtaining  medical  opinion  from  a  duly  

constituted Medical Board arises only if the above-mentioned  

documents  are  unavailable,  this  Court  went  on  to  further  

observe  that  only  in  those  cases,  where  documents  

mentioned in Section 12(a) (i) to (iii) of the J.J. Act, 2000 are  

found  to  be  fabricated  or  manipulated,  the  court,  the  

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Juvenile  Justice  Board  or  the  Committee  need  to  go  for  

medical report for age determination.  Thus in cases where  

documents mentioned in  Section 12(a)(i)  to  (iii)  of  the J.J.  

Act,  2000 are  unavailable  or  where they  are  found to  be  

fabricated or manipulated, it is necessary to obtain medical  

report for age determination of the accused. In this case the  

documents  are  available  but  they  are,  according  to  the  

police, fabricated or manipulated and therefore as per the  

above  observations  of  this  Court  if  the  fabrication  is  

confirmed, it is necessary to go for medical report for age  

determination  of  the  appellant.   Delay  cannot  act  as  an  

impediment in seeking medical report as Section 7-A of the  

J.J. Act, 2000 gives right to an accused to raise the question  

of juvenility at any point of time even after disposal of the  

case.   This  has  been  confirmed  in  Ashwani  Kumar.  

Moreover,  J.J. Act, 2000 is a beneficient  legislation.  If two  

views are possible scales must tilt in favour of the view that  

supports the claim of juvenility.  While we acknowledge this  

position  in  law there  is  a  disquieting  feature  of  this  case  

which cannot be ignored.  We have already alluded to the  

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counter affidavit of Shri R. Srinivasalu, Inspector of Police.  If  

what is stated in that affidavit is true then the appellant and  

his father are guilty of fraud of great magnitude.  A case is  

registered  against  the  appellant’s  father  at  the  Ukkadam  

Police Station under Section 467, 471 and 420 of the IPC.  

Law will take its own course and the guilty will be adequately  

punished if the case is proved against them.  Since the case  

is being investigated, we do not want to express any opinion  

on this  aspect.   Till  the allegations are finally  adjudicated  

upon and proved, we cannot take registration of the offence  

against the appellant.   

13. In the circumstances, we direct the police to complete  

the investigation in respect of case registered against the  

appellant’s  father  (and  the  appellant,  if  any)  within  one  

month.   The charge-sheet,  if  any,  be filed within 15 days  

thereafter.   After filing of the charge-sheet,  the trial  court  

shall dispose of the case within two months.  The case be  

disposed of independently and in accordance with law as we  

have not expressed any final opinion on the merits of that  

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case.  The trial court shall forward its judgment to this Court  

immediately.    

14. List the criminal appeal after the trial court’s judgment  

is received.   

……………………………………………..J. (RANJANA PRAKASH DESAI)

……………………………………………..J. (MADAN B. LOKUR)

NEW DELHI, JULY 3, 2014.

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