Supreme Court of India
ABUZAR HOSSAIN @ GULAM HOSSAINversusSTATE OF WEST BENGAL
- Citation
- 2012 INSC 461
- Decided
- 10 October 2012
- Disposal
- Reference answered
- Bench
- RAJENDRA MAL LODHA
Holding
A claim of juvenility may be raised before any court, including the Supreme Court, at any stage—even after final disposal of the case—and the delay in raising it is not a ground for rejection; the claim must be supported by prima facie documentary or medical evidence, with affidavits alone insufficient unless the case is glaringly evident.
Summary
The appellant, Abuzar Hossain @ Gulam Hossain, claimed that he was a juvenile at the time of the alleged offence and therefore could not be tried in a regular criminal court. The claim was not raised in the trial or earlier appeals, and the question before the Supreme Court was whether a claim of juvenility under s.7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and r.12 of the 2007 Rules could be made at any stage, even after final disposal of the case, and what material is required to trigger an age‑determination inquiry. The Court held that the claim may be raised before any court, including the Supreme Court, at any stage and that delay in raising it is not a ground for rejection. The claimant must produce prima facie material – preferably school, birth‑certificate or municipal documents – or, in their absence, a medical opinion, to justify an inquiry; affidavits alone are insufficient unless the circumstances are “glaring”. The Court clarified the procedure for directing an inquiry and emphasized a liberal, purposive approach to give effect to the protective purpose of the Act. The appeal was allowed to the extent that the claim of juvenility can be considered even after final disposal, and the matter was remitted for appropriate application of the clarified principles.
Issues considered
- When can a claim of juvenility under s.7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 be raised?
- Does the delay in raising a claim of juvenility constitute a ground for its rejection?
- What material is sufficient to satisfy the initial burden for directing an age‑determination inquiry under r.12 of the 2007 Rules?
- Can the Supreme Court entertain a claim of juvenility after the final disposal of the case?
- How should courts balance the protective purpose of the Act with procedural technicalities when evaluating a claim of juvenility?
Legislation cited
- Code of Criminal Procedure, 1973s. Sec.313
- Constitution of Indias. Art.15(3), s. Art.39(e), s. Art.39(f), s. Art.45, s. Art.47
- Juvenile Justice Act, 1986
- Juvenile Justice (Care and Protection of Children) Act, 2000s. 7A
- Juvenile Justice (Care and Protection of Children) Rules, 2007s. Rule 12
Subjects
juvenilityjuvenile justiceSection 7ARule 12age determinationpost‑conviction claimSupreme Courtcriminal appealchild in conflict with lawprocedural law
Judgment
[2012] 9 S.C.R. 244
A ABUZAR HOSSAIN @ GULAM HOSSAIN
v.
STATE OF WEST BENGAL
(Criminal Appeal No. 1193 of 2006 etc.)
OCTOBER 10, 2012
B
[R.M. LODHA, T.S. THAKUR AND ANIL R. DAVE, JJ.]
JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT, 2000:
c
s. 7-A read with r.12 of 2007 Rules - Claim of juvenility -
Held: Can be raised at any stage, even after final disposal of
the case - Delay in raising the claim cannot be a ground for
rejection of the claim - Legal position with regard to s. 7-A and
0 r. 12 summarised - Procedure for making a claim with regard
to juvenility, and guidelines for inquiring into such a claim,
laid down - Procedure, where accused setting up the plea of
juvenility is unable to produce any of the documents
enumerated in r. 12(a)(i) to (iii) - Explained - Juvenile Justice
E (Care and Protection of Children) Rules, 2007 - r.12 - Juvenile
Justice Act, 1986 - Constitution of India, 1950 - Arts. 15(3),
39(e),(f), 45 and 47 - Convention on the Rights of the ChiJd -
United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 - United Nations
Rules for the Protection of Juveniles Deprived of their Liberty
F (1990).
The appellant in Crl. Appeal No. 1193 of 2006, raised
a plea that he was juvenile on the date of incident and,
as such, he could not have been tried in the normal
G criminal court. Since the plea of juvenility of the appellant
was not pressed before the courts below, Gopinath Ghosh
v. State of West Bengal1 was relied on to contend that
1. 1984 SCR 8.03
H 244
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 245
OF WEST BENGAL
notwithstanding the fact that the plea of juvenility had not A
been pressed, it was obligatory on the court to go into
the question of juvenility and determine the age. The two
Judge Bench before which the instant group of appeals
was listed for hearing, felt that there was substantial
discordance in the approach of the matter on the B
question of juvenility in Gopinath Ghosh, and Akbar Sheikh
and others v. State of West Benga/2, and, therefore, referred
the matter to larger Bench.
The question for consideration before the Court C
was: when should a claim of juvenility be recognised and
sent for determination when it is raised for the first time
in appeal or before Supreme Court or raised in trial and
appeal but not pressed and then pressed for the first time
before Supreme or even raised for the first time after final
disposal of the case. D
Answering the reference, the Court
HELD: (Per R.M. Lodha, J. (for himself and for Anil
R. Dave, J) E
1.1 Parliament felt it necessary that uniform juvenile
justice system should be available throughout the
country which should make adequate provision for
dealing with all aspects in the changing social, cultural
and economic situation in the country and there was also F
need for larger involvement of informal systems and
community based welfare agencies in the care,
protection, treatment, development and rehabilitation of
such juveniles and with these objectives in mind, it
enacted Juvenile Justice Act, 1986, which was replaced G
by the Juvenile Justice (Care and Protection of Children)
Act, 2000. The 2000 Act has been enacted to carry
forward the constitutional philosophy engrafted in Arts.
15(3), 39(e) and (f), 45 and 47 of the Constitution and also
2. 2009 (7) SCR 518. H
246 SUPREME COURT REPORTS [2012] 9 S.C.R.
A to incorporate the standards prescribed in the
Convention on the Rights of the Child, United Nations
Standard Minimum Rules for the Administration of
Juvenile Justice, 1985, the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty (1990)
B and all other relevant international instruments. [para 3-
4] [254-G; 255-A-D]
1.2 By Act 33 of 2006, Parliament brought in
significant changes in 2000 Act. Inter alia, s. 7A came to
be inserted, which provides for procedure to be followed
C when claim of juvenility is raised before any court. Rule
12 of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 provides for procedure to be
followed in determination of age. [para 7 and 10] [256-E;
258-E]
D
Pratap Singh v. State of Jharkhand and Another 2005 (1)
SCR 1019 = 2005 (3) SCC 551- referred to.
1.3 It is incorrect to say that the claim of juvenility
E cannot be raised before this Court after disposal of the
case. The expression, 'any court' in s.7A is too wide and
comprehensive; it includes this Court. Supreme Court
Rules surely do not limit the operation of s.7A to the
courts other than this Court where the plea of juvenility
F is raised for the first time after disposal of the case. In
Pawan•, a 3-Judge Bench has laid down the standards
for evaluating claim of juvenility raised for the first time
before this Court. From the consideration of the matter
by this Court, Akbar Sheikh and others v. State of West
Bengal, it is clear that the case turned on its own facts.
G [para 35] [278-H; 279-A; 278-F]
"Pawan v. State of Uttaranchal 2009 (3) SCR 468 =2009
(15) sec 259 - relied on
Akbar Sheikh and others v. State of West Bengal 2009
H
ABUZAR HOSSAIN@ GULAM HOSSAIN v. STATE 247
OF WEST BENGAL
(7) SCR 518 - referred to. A
1.4 The legal position with regard to s.7A of 2000 Act
and r.12 of the 2007 Rules is summarised as under:
(i) A claim of juvenility may be raised at any stage
even after final disposal of the case. It may be raised B
for the first time before this Court as well after final
disposal of the case. The delay in raising the claim
of juvenility cannot be a ground for rejection of such
claim. The claim of juvenility can be raised in appeal
even if not pressed before the trial court and can be C
raised for the first time before this Court though not
pressed before the trial court and in appeal court;
(ii) For making a claim with regard to juvenility after
conviction, the claimant must produce some material 0
which may prima facie satisfy the court that an
inquiry into the claim of juvenility is necessary. Initial
burden has to be discharged by the person who
claims juvenility;
(iii) As to what materials would prima facie satisfy the E
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 F
to in r.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
r.12. The statement recorded u/s 313 of the Code is
too tentative and may not by itself be sufficient G
ordinarily to justify or reject the claim of juvenility. The
credibility and/or acceptability of the documents like
the school leaving certificate or the voters' list, etc.
obtained after conviction would depend on the facts
and circumstances of each case and no hard and H
248 SUPREME COURT REPORTS [2012] 9 S.C.R.
A fast rule can be prescribed that they must be prima
facie accepted or rejected. If such documents prima
facie inspire confidence of the court, it may act upon
such documents for the purposes of s.7A and order
an enquiry for determination of the age of the
B delinquent;
(iv) An affidavit of the claimant or any of the parents
or a sibling or a relative in support of the claim of
juvenility raised for the first time in appeal or revision
or before this Court during the pendency of the
c 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 int~ determination of
D age of the delinquent;
(v) The court where the plea of juvenility is raised for
the first time should always be guided by the
objectives of the 2000 Act and be alive to the position
E that the beneficent and salutary provisions contained
in 2000 Act are not defeated by hyper-technical
approach and the persons who are entitled to get
benefits of 2000 Act get such benefits. The courts
should not be unnecessarily influenced by any
F 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;
G
(vi) Claim of juvenility lacking in credibility or
frivolous claim of juvenility or patently absurd or
inherently improbable claim of juvenility must be
rejected by the court at threshold whenever raised.
H [para 35-36] [279-C-H; 280-A-H]
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 249
OF WEST BENGAL
Gopinath Ghosh v. State of West Bengal 1984 SCR 803; A
Hari Ram v. State of Rajasthan and Another 2009 (7) SCR
623 = (2009) 13 SCC 1.1 Bhoop Ram v. State of U.P. (1989)
3 SCC 1; Pradeep Kumar v. State of U.P. 1995 (2) Suppl.
SCR 590 = 1995 (-3) Suppl. SCC 419; Bhola Bhagat v. State
of Bihar 1997 (4) Suppl. SCR 711 = 1997 (8) SCC 720; State B
of Haryana v. Ba/want Singh 1993 (1) Suppl. SCC 409;
Jitendra Singh alias Babboo Singh and another v. State of
Uttar Pradesh 2010 (13) SCR 879 =
2010 (13) SCC 523;
Daya Nand v. State of Haryana 2011 (1) SCR 173 = 2011
(2) SCC 224; Lakhan Lal v. State of Bihar 2011 (1) SCR 770 c
= 2011 (2) SCC 251; Shah Nawaz v. State of Uttar Pradesh
and another 2011 (9) SCR 859 =
2011 (13) sec 751 -
referred to.
Per T.S. Thakur, J. (Concurring):
D
1.1 In paragraph 36(iv) of the order (Per R.M. Lodha,
J) fall cases in which the accused setting up the plea of
juvenility is unable to produce any one of the documents
referred to in r. 12(3)(a) (i) to (iii) of the Rules framed under
the Act, not necessarily because, he is deliberately E
withholding such documents from the court, but
because, he did not have the good fortune of ever going
to a school from where he could produce a certificate
regarding his date of birth. Para 36 (iv.) sounds a note of
caution that an affidavit of a parent or a sibling or other F
relative would not ordinarily suffice, to trigger an enquiry
into the question of juvenility of the accused, unless the
circumstances of the case are so glaring that the court
is left with no option except to record a prima facie
satisfaction that a case for directing an enquiry is made G
out. [para 1] [281-C-E]
1.2 The expression 'glaring case' cannot be confined
to a strait-jacket formulation. In order to fall under the
expression 'glaring case', the first factor is the most
mundane of the inputs that go into consideration while H
250 SUPREME COURT REPORTS [2012] 9 S.C.R.
A answering a claim of juvenility like "physical appearance"
of the accused made relevant by r. 12(2) of the Rules.
[para 1) [281-G]
1.3 "Physical appearance" of th-e accused is,
therefore, a consideration that ought to permeate every
8
determination under r. 12 no matter appearances are at
times deceptive, and depend so much on the race or the
region to which the person concerned belongs. Physical
appearance can and ought to give an idea to the court
C at the stage of the trial and even in appeal before the High
Court, whether the claim made by the accused is so
absurd or improbable that nothing short of documents
referred to in r. 12 can satisfy the court about the need
for an enquiry. The advantage of "physical appearance"
of the accused may, however, be substantially lost, with
D passage of time, as longer the interval between the
incident and the court's decision on the question of
juvenility, the lesser the chances of the court making a
correct assessment of the age of the accused. In cases
where the claim is made in this Court for the first time,
E the advantage is further reduced as there is considerable
time lapse between the incident and the hearing of the
matter by this Court. [para 2) [282-C-F]
1.4 The second factor which must ever remain
F present in the mind of the court is that the claim of
juvenility may at times be made even in cases where the
accused does not have any evidence, showing his date
of birth, by reference to any public document like the
register of births maintained by Municipal Authorities,
G Panchayats or hospitals nor any certificate from any
school, as the accused was never admitted to any
school. Even if admitted to a school no record regarding
such admission may at times be available for production
in the court. Again, there may be cases in which the
H
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 251
OF WEST BENGAL
accused may not be in a position to provide a birth A
certificate from the Corporation, the Municipality or the
Panchayat. Rule 12(3) of the Rules makes only three
certificates relevant. These are enumerated in sub-r.
(3)(a)(i) to (iii) of r.12. [para 3) (282-G; 283-A-B]
B
1.5 Non-production of the certificates mentioned in
r.12(3)(a)(i) to (iii) or any one of them is not, however, fatal
to the claim of juvenility, for sub-r. 3(b) of r.12 makes a
provision for determination of the question on the basis
of the medical examination of the accused in the C
'absence' of the certificates. [para 4) (283-E]
1.6 The expression 'absence' appearing in r.12(3) is
not defined under the Act or the Rules. The word shall,
therefore, be given its literal dictionary meaning. It is
axiomatic that the use of the expression and the context D
in which the same has been used strongly suggests that
'absence' of the documents mentioned in r.12(3) (a)(i) to
(iii) may be either because the same do not exist or the
same cannot be produced by the person relying upon
them. Mere non-production may not, therefore, disentitle E
the accused of the benefit of the Act nor can it tantamount
to deliberate non-production, giving rise to an adverse
inference unless the court is, in the peculiar facts and
circumstances .of a case, of the opinion that the non-
production is deliberate or intended to either mislead the F
court or suppress the truth. It is in this class of cases that
the court may have to exercise its powers and discretion
with a certain amount of insight into the realities of life.
One of such realities is that illiteracy and crime have a
close nexus though one may not be directly proportional G
to the other. Juvenile delinquency in this country as
elsewhere in the world, springs from poverty and
unemployment, more than it does out of other causes. A
large number of those engaged in criminal activities, may
never have had. the opportunity to go to school.
H
252 SUPREME COURT REPORTS [2012] 9 S.C.R.
A Therefore, the approach at the stage of directing the
enquiry has of necessity to be more liberal, lest, there is
avoidable miscarriage of justice. Suffice it ,to say that
while affidavits may not be generally accepted as a good
enough basis for directing an enquiry, that they are not
B so accepted is not a rule of law but a rule of prudence.
The court would, therefore, in each case weigh the
relevant factors, insist upon filing of better affidavits if the
need so arises, and even direct, any additional
information considered relevant including information
c regarding the age of the parents, the age of siblings and
the like, to be furnished before it decides on a case to
case basis whether or not an enquiry uls 7A ought to be
conducted. It will eventually depend on how the court
evaluates such material for a prima facie conclusion that
the court may or may not direct an enquiry. [paras 4-7)
0
[283-H; 284-A, 0-H; 286-B-D]
Black's Law Dictionary; 'Juvenile Delinquency and
Justice System' by B.N. Mishra, Study conducted by National
Crime Records Bureau (NCRB) Mini~try of Home Affairs,
E Government of India - Reporl 2011 - referred to.
Case Law Reference:
2009 (7) SCR 623 referred to para 2
(1989) 3 sec 1 referred to para 14
F
1995 (2) Suppl. SCR 590 referred to para 15
1997 (4) Suppl. SCR 711 referred to para 16
1993 (1) Suppl. sec 409 referred to para 17
G
2009 (3) SCR 468 relied on para 22
2005 (1) SCR 1019 referred to para 25
2010 (13) SCR 879 referred to para 31
H 2011 (1) SCR 173 referred to para 32
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 253
OF WEST BENGAL
2011 (1) SCR 770 referred to para 33 A
2011 (9) SCR 859 referred to para 34
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1193 of 2006.
B
From the Judgment & Order dated 12.05.2006 of the
Hon'ble High Court at Calcutta in C.R.A. No. 240 of 2003.
WITH
Criminal Appeal No. 1397/2003,
c
SLP (Crl.) No. 1451/2006,
R.P. (Criminal) No. 390/2010 in SLP (Crl.) No. 2542 of 2010.
SLP (Crl.) No. 8768/2011,
D
SLP (Crl.) No. 8855/2011,
Criminal Appeal No. 654/2002,
and SLP (Crl.) No. 616/2012
E
Pradip Kr. Ghosh, S.R. Singh, Nagendra Rai, Rauf Rahim,
Yadunandan Bansal, Chanchan Kumar Ganguli, Rajiv Mehta,
V. Sivasubramanian, Yogesh Swaroop, Antaryami Upadhyay,
Dr. Kailash Chand, Sandhya Goswami, Nikhar Berry, Smarhar
Singh, Shantanu Sagar, Gopi Raman, Preeti Rashmi, Amrita F
Rai, T. Mahipal, Kabir Shankar Bose, Abhijit Sengupta, B.P.
Yadav, Tara Chandra Sharma, Neelam Sharma, Kamal Mohan
Gupta, Kavita Wadia, Vivek Vishnoi, M.R. Shamshad, Manish
Kumar, Chandan Kumar, (For Gopal Singh), Kuldip Singh,
Mohit Mudgil for the Appearing Parties. G
The Judgments of the Court was delivered by
R.M. LODHA, J. 1. Delinquent juveniles need to be dealt
with differently from adults. International covenants and domestic
laws in various countries have prescribed minimum standards H
254 SUPREME COURT REPORTS [2012] 9 S.C.R.
A for delinquent juveniles and juveniles in conflict with law. These
standards provide what orders may be passed regarding
delinquent juveniles and the orders that may not be passed
against them. This group of matters raises the question of when
should a claim of juvenility be recognised and sent for
B determination when it is raised for the first time in appeal or
before this Court or raised in trial and appeal but not pressed
and then pressed for the first time before this Court or even
raised for the first time after final disposal of the case.
2. It so happened that when criminal appeal preferred by
C Abuzar Hossain @ Gulam Hossain came up for consideration
before a two-Judge Bench (Harjit Singh Bedi and J.M. Panchal,
JJ) on 10.11.2009, on behalf of the appellant, a plea of juvenility
on the date of incident was raised. In support of the contention
that the appellant was juvenile on the date of incident and as
D such he could not have been tried in a normal criminal court,
reliance was placed on a deCision of this Court in Gopinath
Ghosh v. State of West Bengar. On the other hand, on behalf
of the respondent, State of West Bengal, in opposition to that
plea, reliance was placed on a later decision of this Court in
E Akbar Sheikh and others v. State of West Benga/2. The Bench
found that there was substantial discordance in the approach
of the matter on the question of juvenility in Gopinath Ghosh 1
on the one hand and the two decisions of this Court in Akbar
Sheikh 2 and Hari Ram v. State of Rajasthan and Anothefl.
F The Bench was of the opinion that as the issue would arise in
a very large number of cases, it was required to be referred to
a larger Bench as the judgment in Akbar Sheikh2 and Gopinath
Ghosh1 had been rendered by co-ordinate Benches of this
Court. This is how these matters have come up before us.
G
3. The Parliament felt it necessary that uniform juvenile
justice system should be available throughout the country which
1. 1984 (Supp) sec 228.
2. (2009) 1 sec 415.
H 3. (2009) 13 sec 211.
ABUZAR HOSSAIN@ GULAM HOSSAIN v. STATE 255
OF WEST BENGAL [R.M. LODHA, J.]
should make adequate provision for dealing with all aspects A
in the changing social, cultural and economic situation in the
country and there was also need for larger involvement of
informal systems and community based welfare agencies in the
care, protection, treatment, development and rehabilitation of
such juveniles and with these objectives in mind, it enacted B
Juvenile Justice Act, 1986 (for short, '1986 Act').
4. 1986 Act was replaced by the Juvenile Justice (Care
and Protection of Children) Act, 2000 (for short, '2000 Act').
2000 Act has been enacted to carry forward the constitutional
philosophy engrafted in Articles 15(3), 39(e) and (f), 45 and 47 C
of the Constitution and also incorporate the standards
prescribed in the Convention on the Rights of the Child, United
Nations Standard Minimum Rules for the Administration of
Juvenile Justice, 1985, the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty (1990) and all D
other relevant international instruments. Clause (k) of Section
2 defines "juvenile" or "child" to mean a person who has not
completed eighteenth year of age. Clause (I) of Section 2
defines "juvenile in conflict with law" to mean a juvenile who is
alleged to have committed an offence and has not completed E
eighteenth year of age on the date of commission of such
offence.
5. Section 3 of 2000 Act provides for continuation of
inquiry in respect of juvenile who has ceased to be a juvenile. F
It reads as under:
"S.3 . Continuation of inquiry in respect of juvenile who has
ceased to be a juvenile.-Where an inquiry has been
initiated against a juvenile in conflict with law or a child in
need of care and protection and during the course of such G
inquiry the juvenile or the child ceases to be such, then,
notwithstanding anything contained in this Act or in any
other law for the time being in force, the inquiry may be
continued and orders may be made in respect of such
H
256 SUPREME COURT REPORTS [2012] 9 S.C.R.
A person as if such person had continued to be a juvenile
or a child."
6. Chapter II of 2000 Act deals with juvenile in conflict with
law. This Chapter comprises of Sections 4 to 28. Section 4
B provides for constitution of juvenile justice board and its
composition. Section 5 provides for procedure, etc. in relation
to juvenile justice board. Section 6 deals with the powers of
juvenile justice board. Section 6 reads as under:
"S.6 . Powers of Juvenile Justice Board.-(1) Where a
c Board has been constituted for any district, such Board
shall, notwithstanding anything contained in any other law
for the time being in force but save as otherwise expressly
provided in this Act, have power to deal. exclusively with
all proceedings under this Act relating to juvenile in conflict
D with law.
(2) The powers conferred on the Board by or under this
Act may also be exercised by the High Court and the Court
of Session, v1hen the proceeding comes before them in
appeal, revision or otherwise."
E
7. By ;..ct 33 of 2006, the Parliament brought in significant
changes in 2000 Act. Inter alia, Section 7A came to be inserted.
This Section is lynchpin around which the debate has centered
around in these matters. Section 7A provides for procedure to
F be followed when claim of juvenility is raised before any court.
It reads as follows:
"S.7A. Procedure to be followed when claim of juvenility
is raised before any court.-(1) Whenever a claim of
G 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
H
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 257
OF WEST BENGAL [R.M. LODHA, J.]
or a child or not, stating his age as nearly as may be: A
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 B
and the rules made thereunder, even if the juvenile has
ceased to be so on or before the date of commencement
of this Act.
(2) If the court finds a person to be a juvenile on the date
of commission of the offence under sub-section (1 ), it shall C
forward the juvenile to the Board for passing appropriate
orders and the sentence, if any, passed by a court shall
be deemed to have no effect."
8. Section 49 of 2000 Act deals with presumption and o
determination of age. This Section reads as under:
"49 . Presumption and determination of age.-(1) Where
it appears to a competent authority that person brought
before it under any of the provisions of this Act (otherwise
than for the purpose of giving evidence) is a juvenile or the E
child, the competent authority shall make due inquiry so as
to the age of that person and for that purpose shall take
such evidence as may be necessary (but not an
affidavit)and shall record a finding whether the person is
a juvenile or the child or not, stating his age as nearly as F
may be.
(2) No order of a competent authority shall be deemed to
have become invalid merely by any subsequent proof that
the person in respect of whom the order h~s been made G
is not a juvenile or the child, and the age recorded by the
competent authority to be the age of person so brought
before it, shall for the purpose of this Act, be deemed to
be the true age of that person."
9. Sections 52 and 53 deal with appeals and revision. H
258 SUPREME COURT REPORTS [2012] 9 S.C.R.
A Section 54 provides for procedure in inquiries, appeals and
revision proceedings, which reads as follows:
"S.54 . Procedure in inquiries, appeals and revision
proceedings.~(1 )Save as otherwise expressly provided
by this Act, a competent authority while holding any inquiry
B
under any of the provisions of this Act, shall follow such
procedure as may be prescribed and subject thereto, shall
follow, as far as may be, the procedure laid down in the
Code of Criminal Procedure, 1973 (2 of 1974) for trials in
summons cases.
c
(2) Save as otherwise expressly provided by or under this
Act, the procedure to be followed in hearing appeals or
revision proceedings under this Act shall be, as far as
practicable, in accordance with the provisions of the Code
D of Criminal Procedure, 1973(2 of 1974)."
10. In exercise of powers conferred by the proviso to sub-
section (1) of Section 68 of the 2000 Act, the Central
Government has framed the rules entitled "The Juvenile Justice
E (Care and Protection of Children) Rules, 2007" (for short, "2007
Rules"). The relevant rule for the purposes of consideration of
the issue before us is Rule 12 which provides for procedure to
be followed in determination of age. Since this Rule has a
direct bearing for consideration of the matter, it is quoted as it
is. It reads as under:
F
"R. 12. Procedure to be followed in determination of
Age.- (1) In every case concerning a child or a juvenile
in conflict with law, the court or the Board or as the case
may be the Committee referred to in rule 19 of these rules
G 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
H
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 259
OF WEST BENGAL [R.M. LODHA, J.]
tht. juvenile or the child or as the case may be the juvenile A
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 B
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; C
(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 D
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 constituted Medical Board, which will declare the E
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 F
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, G
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.
H
260 SUPREME COURT REPORTS [2012] 9 S.C.R.
A (4) If the age of a juvenile or child or the juvenile in
conflict with law is found to be below 18 years on the date
of offence, on the basis of any of the conclusion proof
specified in sub-rule (3), the Court or the Board or as the
case may be the Committee shall in writing pass an order
B 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
c otherwise ls 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.
D
(6) The provisions contained in this rule shall also
apply to those disposed of cases, where the status of
juvenility has not been determined in accordance with the
provisions contained in sub-rule (3) and the Act, requiring
E dispensation of the sentence under the Act for passing
appropriate order in the interest of the juvenile in conflict
with law."
11. It is not necessary to refer to facts of criminal appeal
preferred by Abuzar Hossain @ Gulam Hossain or the other
F referred matters. Suffice it to say that in criminal appeal of
Abuzar Hossain @ Gu lam Hossain, in support of the argument
that he was juvenile on the date of incident and as such he could
not have been tried in the normal criminal court, his statement
recorded under Section 313 of the Code of Criminal Procedure,
G 1973 (for short, 'the Code') was pressed into service. It was,
however, found from the evidence as well as the judgments of
the trial court and the High Court that the issue of juvenility was
not pressed at any stage and no evidence whatsoever was led
by him to prove the age. It was in the backdrop of these facts
H
ABUZAR HOSSAIN@ GULAM HOSSAIN v. STATE 261
OF WEST BENGAL [R.M. LODHA, J.]
that Gopinath Ghosh1 was relied upon in support of the A
proposition that notwithstanding the fact that the plea of juvenility
had not been pressed, it was obligatory on the court to go into
the question of juvenility and determine his age.
12. Gopinath Ghosh 1 was a case where he was convicted
B
along with two others for an offence under Section 302 read
with Section 34 of IPC and sentenced to suffer imprisonment
for life by the trial court. He and two co-accused preferred
criminal appeal before Calcutta High Court. In the appeal, two
accused were acquitted while the conviction and sentence of
Gopinath Ghosh was maintained. Gopinath Ghosh filed appeal C
by special leave before this Court. On his behalf, the argument
was raised that on the date of offence, i.e. on 19.8.1974 he was
aged below 18 years and he is therefore a "child" within the
meaning of the expression in the West Bengal Children Act,
1959 and, therefore, the court had no jurisdiction to sentence D
him to suffer imprisonment after holding a trial. Having regard
to the contention raised on behalf of the appellant, this Court
framed an issue for determination; what was the age of the
accused Gopinath Ghosh (appellant) on the date of offence for
which he was tried and convicted? The issue was remitted to E
the Sessions Judge, Nadia to ascertain his age and submit the
finding. The Additional Sessions Judge, First Court, Nadia,
accordingly, held an inquiry and after recording the evidence
and calling for medical report and after hearing parties certified
that Gopinath Ghosh was aged between 16 and 17 years on F
the date of the offence. The finding sent by the Additional
Sessions Judge was not questioned before this Court. The
Court examined the scheme of West Bengal Children Act, 1959
and also noted Section 24 thereof which had an overriding
effect taking away the power of the court to impose the sentence G
of imprisonment unless the case was covered by the proviso
thereto. Then in paragraph 10 (pg. 231) of the Report, this Court
held as under:
"10. Unfortunately, in this case, appellant Gopinath Ghosh
H
262 SUPREME COURT REPORTS [2012] 9 S.C.R.
A never questioned the jurisdiction of the Sessions Court
which tried him for the offence of murder. Even the
appellant had given his age as 20 years when questioned
by the learned Additional Sessions Judge. Neither the
appellant nor his learned counsel appearing before the
B learned Additional Sessions Judge as well as at the
hearing of his appeal in the High Court ever questioned
the jurisdiction of the trial court to hold the trial of the
appellant, nor was it ever contended that he was a juvenile
delinquent within the meaning of the Act and therefore, the
. Court had no jurisdiction to try him, as well as the Court
c had no jurisdiction to sentence him to suffer imprisonment
for life. It was for the first time that this contention was
raised before this Court. However, in view of the underlying
intendment and beneficial provisions of the Act read with
clause (f) of Article 39 of the Constitution which provides
D that the State shall direct its policy towards securing that
children are given opportunities and facilities to develop
in a healthy manner and in conditions of freedom and
dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment,
E we consider it proper not to allow a technical contention
that this contention is being raised in this Court for the first
time to thwart the benefit of the provisions being extended
to the appellant, if he was otherwise entitled to it."
F 13. In paragraph 13 (pgs. 232-233) of the Report, the Court
observed as under:
"13. Before we part with this judgment, we must take
notice of a developing situation in recent months in this
Court that the contention about age of a convict and
G claiming the benefit of the relevant provisions of the Act
dealing with juvenile delinquents prevalent in various States
is raised for the first time in this Court and this Court is
required to start the inquiry afresh. Ordinarily this Court
would be reluctant to entertain a contention based on
H
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 263
OF WEST BENGAL [R.M. LODHA, J.]
factual averments raised for the first time before it. A
However, the Court is equally reluctant to ignore, overlook
or nullify the beneficial provisions of a very socially
progressive statute by taking shield behind the technicality
of the contention being raised for the first time in this Court.
A way has therefore, to be found from this situation not 8
conducive to speedy disposal of cases and yet giving
effect to the letter and the spirit of such socially beneficial
legislation. We are of the opinion that whenever a case is
brought before the Magistrate and the accused appears
to be aged 21 years or below, before proceeding with the C
trial or undertaking an inquiry, an inquiry must be made
about the age of the accused on the date of the occurrence.
This ought to be more so where special Acts dealing with
juvenile delinquent are in force. If necessary, the Magistrate
may refer the accused to the Medical Board or the Civil
Surgeon, as the case may be, for obtaining creditworthy
0
evidence about age. The Magistrate may as well call upon
accused also to lead evidence about his age. Thereafter,
the learned Magistrate may proceed in accordance with
law. This procedure, if properly followed, would avoid a
journey upto the Apex Court and the return journey to the E
grass-root court. If necessary and found expedient, the
High Court may on its administrative side issue necessary
instructions to cope with the situation herein indicated."
14. In Bhoop Ram v. State of U.P. 4 , a two-Judge Bench F
of this Court was concerned with the question as to whether
the appellant Shoop Ram should have been treated as a "child"
within the meaning of Section 2(4) of the U.P. Children Act,
1951 and sent to an approved school for detention therein till
he attained the age of 18 years instead of being sentenced to G
undergo imprisonment in jail. In Bhoop Ram4, the Chief Medical
Officer, Bareilly gave a certificate that as per the radiology
examination and physical features, he appeared to be 30 years
of age as on 30.4.1987. Shoop Ram did not place any other
4. (1989) 3 sec 1. H
264 SUPREME COURT REPORTS [2012] 9 S.C.R.
A material before the Sessions Judge except the school
certificate to prove that he had not completed 16 years on the
date of commission of the offences. The Sessions judge
rejected the school certificate produced by him on the ground
that "it is not unusual that in schools ages are understated by
8 one or two years for future benefits". As regards medical
certificate the Sessions Judge observed that as he happened
to be about 28-29 years of age on 1.6.1987, he would have
completed 16 years on the date of occurrence. Before the
Court, on behalf of the appellant, Shoop Ram, it was contended
C that school certificate produced by him contained definite
information regarding date of birth and that should have
prevailed over the certificate of the doctor and the Sessions
Judge committed wrong in doubting the correctness of the
school certificate. This Court on consideration of the matter held
that appellant Shoop Ram could not have completed 16 years
D of age on 3.10.1975 when the occurrence took place and as
such he ought to have been treated as "child" within the
meaning of Section 2(4) of the U.P. Children Act, 1951 and
dealt with under Section 29 of the Act. The Court gave the
following reasons for holding appellant, Shoop Ram, a "child"
E on the date of occurrence of the incident:
"7 ........ The first is that the appellant has produced a
school certificate which carries the date 24-6-1960 against
the column "date of birth". There is no material before us
F to hold that the school certificate does not relate to the
appellant or that the entries therein are not correct in their
particulars. The Sessions Judge has failed to notice this
aspect of the matter and appears to have been carried
away by the opinion of the Chief Medical Officer that the
appellant appeared to be about 30 years of age as on 30-
G
4-1987. Even in the absence of any material to throw
doubts about the entries in the school certificate, the
Sessions Judge has brushed it aside merely on the
surmise that it is not unusual for parents to understate the
age of their children by one or two years at the time of their
H
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 265
OF WEST BENGAL [R.M. LODHA, J.]
admission in schools for securing benefits to the children A
in their future years. The second factor is that the Sessions
Judge has failed to bear in mind that even the trial Judge
had thought it fit to award the lesser sentence of
imprisonment for life to the appellant instead of capital
punishment when he delivered judgment on 12-9-1977 on B
the ground the appellant was a boy of 17 years of age. The
observation of the trial Judge would lend credence to the
appellant's case that he was less than 10 (sic 16) years
of age on 3-10-1975 when the offences were committed.
The third factor is that though the doctor has certified that c
the appellant appeared to be 30 years of age as on 30-4-
1987, his opinion is based only on an estimate and the
possibility of an error of estimate creeping into the opinion
cannot be ruled out. As regards the opinion of the Sessions
Judge, it is mainly based upon the report of the Chief
0
Medical Officer and not on any independent r 1aterial. On
account of all these factors, we are of the vit:w that the
appellant would not have completed 16 years of age on
the date the offences were committed ........ "
15. A three-Judge Bench of this Court in Pradeep Kumar E
v. State of U.P. 5 was concerned with the question whether each
of the appellants was a "child" within the meaning of Section
2(4) of the U.P. Children Act, 1951 and as such on conviction
under Section 302/34 IPC, they should have been sent to
approved school for detention till the age of 18 years. The Court F
dealt with the matter in its brief order thus:
"2. At the time of granting special leave, Jagdish appellant
produced High School Certificate, according to which he
was about 15 years of age at the time of occurrence. G
Appellant Krishan Kant produced horoscope which
showed that he was 13 years of age at the time of
occurrence. So far as appellant Pradeep is concerned a
medical report was called for by this Court which disclosed
5. 1995 Supp (4) sec 419. H
266 SUPREME COURT REPORTS [2012] 9 S.C.R.
A that his date of birth as January 7, 1959 was acceptable
on the basis of various tests conducted by the medical
authorities.
3. It is thus proved to the satisfaction of this Court that on
the date of occurrence, the appellants had not completed
B
16 years of age and as such they should have been dealt
with under the U.P. Children Act instead of being
sentenced to imprisonment on conviction under Section
302/34 of the Act."
C 16. The above three decisions came up for consideration
before this Court in Bhola Bhagat v. State of Bihar6. The plea
raised on behalf of the appellants that they were 'children' as
defined in the Bihar Children Act, 1970 on the date of
occurrence and their trial along with adult accused by the
D criminal court was not in accordance with law was rejected by
the High Court observing that except for the age given by the
appellants and the estimate of the court at the time of their
examination under Section 313 of the Code, there was no other
material in support of the appellants' claim that they were below
E 18 years of age. This Court flawed the approach of the High
Court and observed as follows:
"8. To us it appears that the approach of the High Court in
dealing with the question of age of the appellants and the
denial of benefit to them of the provisions of both the Acts
F was not proper. Technicalities were allowed to defeat the
benefits of a socially-oriented legislation like the Bihar
Children Act, 1982 and the Juvenile Justice Act, 1986. If
the High Court had doubts about the correctness of their
age as given by the appellants and also as estimated by
G the trial court, it ought to have ordered an enquiry to
determine their ages. It should not have brushed aside their
plea without such an enquiry."
17. Gopinath Ghosh1, Bhoop Rant and Pradeep Kumar°
H s. (1997) a sec 120.
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 267
OF WEST BENGAL [R.M. LODHA, J.]
were elaborately considered in paragraphs 10, 11 and 12 of A
the Report. The Court also considered a decision of this Court
in State of Haryana v. Ba/want Singh 7 and held that the said
decision was not a good law. In paragraph 15 of the Report,
the Court followed the course adopted in Gopinath Ghosh1 ,
Bhoop Ram4 and Pradeep Kumaf' and held as under : 8
"15. The correctness of the estimate of age as given by
the trial court was neither doubted nor questioned by the
State either in the High Court or in this Court. The parties
have, therefore, accepted the correctness of the estimate
of age of the three appellants as given by the trial court. C
Therefore, these three appellants should not be denied the
benefit of the provisions of a socially progressive statute.
In our considered opinion, since the plea had been raised
in the High Court and because the correctness of the
estimate of their age has not been assailed, it would be D
fair to assume that on the date of the offence, each one of
the appellants squarely fell within the definition of the
expression "child". We are under these circumstances
reluctant to ignore and overlook the beneficial provisions
of the Acts on the technical ground that there is no other E
supporting material to support the estimate of ages of the
appellants as given by the trial court, though the
correctness of that estimate has not been put in issue
before any forum .... .".
F
18. Mr. Pradip Kr. Ghosh, learned senior counsel for the
appellant Abuzar Hossain @ Gulam Hossain, relying heavily
upon the above cases, submitted that what was earlier
established by judicial interpretation in Gopinath Ghosh1,
Bhoop Ram4 and Pradeep Kumaf' became the statutory law
with the enactment of Section 7A of 2000 Act and Rule 12 of G
the 2007 Rules and in view thereof a different approach is
required with regard to the delinquent juveniles as and when
plea of juvenility is raised before the court. Learned senior
7. (Supp) 1 sec 409. H
268 SUPREME COURT REPORTS (2012] 9 S.C.R.
A counsel would submit that the courts have to ensure that the
beneficial provisions contained in Section 7A and Rule 12 are
not frustrated by procedural rigidity. It was submitted that while
enacting Section 7A, the Legislature has taken note of socio-
economic ground realities of the country and had kept in view
8 juveniles who come from amongst the poorest of the poor, slum
dwellers, street dwellers and some of those having no shelter,
no means of sustenance and for whom it would be a far cry to
have any documents as they would have neither any schooling
nor any birth registration. The law has to be applied in the
C manner so that its benefits are made available to all those who
are entitled to it. He contended that the very fact that Rule 12
provided for every possible opportunity to establish the juvenility
and when everything fails there is the mandate of holding the
medical examination of the delinquent, shows the legislative
intent.
D
19. Mr. Pradip Kr. Ghosh, learned senior counsel also
submitted that the law with regard to juvenile delinquents by
insertion of Section 7A has been given retrospective effect and
made applicable even after disposal of the case and, therefore,
E in all such cases, those who had no occasion to claim the
benefit of juvenility in the past deserve fresh opportunity to be
given and they should be allowed to produce such materials
afresh as may be available in support of the claim. He
submitted that a purposive interpretation to Section 7A and
F Rule 12 must be given to bring within their fold not only
documents which are contemplated in terms of sub-rule (3) of
Rule 12 but also cases in which no such document is available
but if the accused is referred to a medical board, his age would
eventually be found to be such as would make him a juvenile.
G 20. Mr. Pradip Kr. Ghosh, learned senior counsel did not
dispute that for the purpose of making a claim with regard to
juvenility, the delinquent has to produce some material in
support of his claim and in the absence of any documentary
evidence, file at least a supporting affidavit affirmed by one of
H
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 269
OF WEST BENGAL [R.M. LODHA, J.]
his parents or an elder sibling or other relation who is competent A
to depose as to his age so as to make the court to initiate an
inquiry under Rule 12(3). He did concede that a totally frivolous
claim of juvenility which on the face of it is patently absurd and
inherently improper may not be entertained by the court but at
the same time the court must not be hyper-technical and must B
ensure that beneficial provision is not defeated by undue
technicalities.
21. Learned senior counsel submitted that the statement
under Section 313 of the Code or the voters' list may not be C
decisive but the documents of such nature may be adequate
for the court to initiate an inquiry in terms of Rule 12(3).
According to him, what is decisive is the result of the inquiry
under Rule 12(3). However, semblance of material must justify
an order to cause an inquiry to be made to determine the claim
of juvenility. D
22. Mr. Abhijit Sengupta, learned counsel for the State of
West Bengal, submitted that although the provisions of 2000
Act as amended in 2006, and the Rules must be given full effect
as these are beneficial provisions for the benefit of juveniles, E
but at the same time this Court must ensure that the provisions
are not abused and a floodgate of cases does not start. He
submitted that in Pawan v. State of Uttaranchal8, a 3- Judge
Bench of this Court had emphasized on the need for
satisfactory, adequate and prima facie material before an F
inquiry under Rule 12 could be commenced and the law laid
down in Pawan8 must be followed as and when claim of
juvenility is raised before this Court. He submitted that claim
of juvenility must be credible before ordering an inquiry under
Rule 12. G
23. Mr. Nagendra Rai, learned senior counsel for the
petitioner in the connected Special Leave Petition being SLP
(Criminal) No. 616 of 2012, Ram Sahay Rai v. State of Bihar
a. (2009) 15 sec 259. H
270 SUPREME COURT REPORTS [2012] 9 S.C.R.
A submitted that by amendment brought in 2006, 2000 Act has
been drastically amended. The Legislature by bringing in
Section 7A has clearly provided that the claim of juvenility may
be raised before any court and it shall be recognised at any
stage, even after the final disposal of the case and such claim
B shall be determined in terms of the provisions contained in 2000
Act and the Rules made thereunder, even if the juvenile has
ceased to be so on or before the commencement of the Act.
He would submit that even if the question of juvenility had not
been raised by the juvenile even upto this Court and there is
c some material to show that a person is a juvenile on the date
of commission of crime, it can be recognised at any stage even
at the stage of undergoing sentence. He agreed that inquiry
cannot be initiated on the basis of mere assertion of the claim.
There must be prima facie material to initiate the inquiry and
once the prima facie test is satisfied, the determination may
0
be made in terms of Rule 12. With reference to Rule 12, learned
senior counsel would submit that appearance, documents and
medical evidence are the only materials which are relevant for
determining the age and as such only such materials should
E form the basis for forming an opinion about the prima facie
case. The oral evidence should rarely form the basis for
initiation of proceeding as in view of Rule 12, the said material
can never be used in inquiry and thus forming an opinion on
that oral evidence will not serve the purposes of the Act.
F 24. Learned counsel for the State of Bihar on the other
hand submitted that Legislature never intended to make
Section 7A applicable to this Court after the final disposal of
the case. He submitted that there was no provision in the
Supreme Court Rules to re-open the concluded appeals or
G SLPs. Moreover, when SLP is filed, it is mandatory that no new
ground or document shall be relied upon which has not been
the part of record before the High Court and, therefore, if plea
of juvenility has not been raised before the High Court, it cannot
be raised before this Court. According to him, the power under
H the 2000 Act can be exercised only by the Juvenile Board,
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 271
OF WEST BENGAL [R.M. LODHA, J.]
Sessions Court or High Court after final disposal of the case A
but not this Court. He. however, submitted that the Supreme
Court in exercise of its power under Article 142 may remand
the matter to such forums, if it appears expedient in the interest
of justice.
B
25. The amendment in 2000 Act by the Amendment Act,
2006, particularly, introduction of Section 7A and subsequent
introduction of Rule 12 in the 2007 Rules, was sequel to the
Constitution Bench decision of this Court in Pratap Singh v.
State of Jharkhand and Anothe~ . In Hari Ram 3 , a two-Judge
Bench of this Court extensively considered the scheme of 2000 C
Act, as amended by 2006 Amendment Act. With regard to sub-
rules (4) and (5) of Rule 12, this Court observed as follows:
"27. Sub-rules (4) and (5) of Rule 12 are of special
significance in that they provide that once the age of a D
juvenile or child in conflict with law is found to be less than
18 years on the date of offence on the basis of any proof
specified in sub-rule (3) the court or the Board or as the
case may be the Child Welfare Committee appointed
under Chapter IV of the Act, has to pass a written order E
stating the age of the juvenile or stating the status of the
juvenile, and no further inquiry is to be conducted by the
court or Board after examining and obtaining any other
documentary proof referred to in sub-rule (3) of Rule 12.
Rule 12, therefore, indicates the procedure to be followed F
to give effect to the provisions of Section 7-A when a
claim of juvenility is raised."
26. This Court observed that the scheme of the 2000 Act
was to give children, who have, for some reason or the other,
gone astray, to realize their mistakes, rehabilitate themselves G
and rebuild their lives and become useful citizens of the society,
instead of degenerating into hardened criminals. In paragraph
59 of the Report, the Court held as under:
9. (2005) 3 sec 551. H
272 SUPREME COURT REPORTS (2012] 9 S.C.R.
A "59. The law as now crystallised on a conjoint reading of
Sections 2(k), 2(1), 7-A, 20 and 49 read with Rules 12 and
98, places beyond all doubt that all persons who were
below the age of 18 years on the date of commission of
the offence even prior to 1-4-2001, would be treated as
juveniles, even if the claim of juvenility was raised after they
B
had attained the age of 18 years on or before the date of
commencement of the Act and were undergoing sentence
upon being convicted."
27. The Court observed in Hari Ram 3 that often parents
C of children, who come from rural backgrounds, are not aware
of the actual date of birth of a child, but relate the same to some
event which might have taken place simultaneously. In such a
situation, the Board and the Courts will have to take recourse
to the procedure laid down in Rule 12.
D
28. The judgment in the case of Hari Ram3 was delivered
by this Court on 5.5.2009. On that very day, judgment in Akbar
Sheikh 2 was delivered by a two-Judge Bench of which one of
us (R.M. Lodha, J.) was a member. In Akbar Sheikh 2 on behalf
E of one of the appellants, Kabir, a submission was made that
he was juvenile on the date of occurrence. While dealing with
the said argument, this Court observed that no such question
had ever been raised. Even where a similar question was
raised by five other accused, no such plea was raised even
before the High Court. On behalf of the appellant, Kabir, in
F support of the juvenility, two documents were relied upon,
namely, (i) statement recorded under Section 313 of the Code
and (ii) voters' list. As regards the statement recorded under
Section 313, this Court was of the opinion that the said
document was not decisive. In respect of voters' list, this Court
G observed that the same had been prepared long after the
incident occurred and it was again not decisive. In view of these
findings, this Court did not find any merit in the claim of Kabir,
one of the appellants, that he was juvenile and the submission
was rejected. From a careful reading of the judgment in the
H matter of Akbar Sheikh 2 , it is clear that the two documents on
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 273
OF WEST BENGAL [R.M. LODHA, J.]
which reliance was placed in support of claim of juvenility were A
not found decisive and, consequently, no inquiry for
determination of age was ordered. From the consideration of
the matter by this Court in Akbar Sheikh 2 , it is clear that the
case turned on its own facts.
B
29. As a matter of fact, prior to the decisions of this Court
in Hari Ram3 and Akbar Sheikh 2 , a three-Judge Bench of this
Court speaking through one of us (R.M. Lodha, J.) in Pawan8
had considered the question relating to admissibility of claim
of juvenility for the first time in this Court with reference to C
Section 7A. The contention of juvenility was raised for the first
time before this Court on behalf of the two appellants, namely,
A-1 and A-2. The argument on their behalf before this Court
was that they were juvenile within the meaning of 2000 Act on
the date of incident and the trial held against them under the
Code was illegal. With regard to A-1, his school leaving D
certificate was relied on while as regards A-2, reliance was
placed on his statement recorded under Section 313 and the
school leaving certificate. Dealing with the contention of
juvenility, this Court stated that the claim of juvenility could be
raised at any stage, even after final disposal of the case. The E
Court then framed the question in paragraph 41 of the Report
as to whether an inquiry should be made or report be called
for from the trial court invariably where juvenility is claimed for
the first time before this Court. It was held that where the
materials placed before this Court by the accused, prima facie, F
suggested that he was 'juvenile' as defined in 2000 Act on the
date of incident, it was necessary to call for the report or an
inquiry to be made for determination of the age on the date of
incident. However, where a plea of juvenility is found
unscrupulous or the materials lack credibility or do not inspire G
confidence and even prima facie satisfaction of the court is not
made out, further exercise in this regard may not be required.
It was also stated that if the plea of juvenility was not raised
before the trial court or the High Court and is raised for the first
time before this Court, the judicial conscience of the court must H
274 SUPREME COURT REPORTS (2012] 9 S.C.R.
A be satisfied by placing adequate material that the accused had
not attained the age of 18 years on the date of commission of
offence. In absence of adequate material, any further inquiry into
juvenility would not be required.
8 30. Having regard to the general guidelines highlighted in
paragraph 41 with regard to the approach of this Court where
juvenility is claimed for the first time, the court then considered
the documents relied upon by A-1 and A-2 in support of the
claim of juvenility on the date of incident. In respect of the two
documents relied upon by A-2, namely, statement under
C Section 313 of the Code and the school leaving certificate, this
Court observed that the statement recorded under Section 313
was a tentative observation based on physical appearance
which was hardly determinative of age and insofar as school
leaving certificate was concerned, it did not inspire any
D confidence as it was issued after A-2 had already been
convicted and the primary evidence like entry from the birth
register had not been produced. As regards school leaving
certificate relied upon by A-1, this Court found that the same
had been procured after his conviction and no entry from the
E ·birth register had been produced. The Cou~ was, thus, not prima
facie impressed or satisfied by the material placed on behalf
of A-1 and A-2. Those documents were not found satisfactory
and adequate to call for any report from the Board or trial court
about the age of A-1 and A-2.
F
31. In Jitendra Singh alias Babboo Singh and another v.
State of Uttar Pradesh 10 , on behalf of the appellant, a plea was
raised that he was minor within the meaning of Section 2(k) of
2000 Act on the date of commission of the offence. The
G appellant had been convicted for the offences punishable under
Sections 304-B and 498A IPC and sentenced to suffer seven
years' imprisonment under the former and two years under the
latter. The appellant had got the bail from the High Court on the
grourid of his age which was on medical examination certified
H 10. (2010) 13 sec 523.
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 275
OF WEST BENGAL [R.M. LODHA, J.]
to be around seventeen years on the date of commission of A
the offence. One of us (T.S. Thakur, J.) who authored the
judgment for the Bench held that in the facts and circumstances
of the case, an enquiry for determining the age of the appellant
was necessary. This Court referred to the earlier decisions in
Gopinath Ghosh 1 , Bhoop Ram4, Bhola Bhagaf3, Hari Ram 3 B
and Pawan 6 and then held that the burden of making out the
prima facie case had been discharged. In paragraphs 9, 10
and 11 of the Report, it was held as under:
"9. The burden of making out a prima facie case for
directing an enquiry has been in our opinion discharged C
in the instant case inasmuch as the appellant has filed
along with the application a copy of the school leaving
certificate and the marksheet which mentions the date of
birth of the appellant to be 24-5-1988. The medical
examination to which the High Court has referred in its D
order granting bail to the appellant also suggests the age
of the appellant being 17 years on the date of the
examination. These documents are sufficient at this stage
for directing an enquiry and verification of the facts.
E
10. We may all the same hasten to add that the material
referred to above is yet to be verified and its genuineness
and credibility determined. There are no doubt certain
telltale circumstances that may raise a suspicion about the
genuineness of the documents relied upon by the appellant.
F
For instance, the deceased Asha Devi who was married
to th~ appellant was according to Dr. Ashok Kumar Shukla,
Pathologist, District Hospital, Rae Bareilly aged 19 years
at the time of her death. This would mean as though the
appellant husband was much younger to his wife which is G
not the usual practice in the Indian context and may happen
but infrequently. So also the fact that the appellant obtained
the school leaving certificate as late as on 17-11-2009 i.e.
after the conclusion of the trial and disposal of the first
appeal by the High Court, may call for a close scrutiny and
H
276 SUPREME COURT REPORTS [2012] 9 S.C.R.
A examination of the relevant school record to determine
whether the same is free from any suspicion, fabrication
or manipulation. It is also alleged that the electoral rolls
showed the age of the accused to be around 20 years
while the extract from the panchayat register showed him
B to be 19 years old.
11. All these aspects would call for close and careful
scrutiny by the court below while determining the age of
the appellant. The date of birth of appellant Jitendra Sing h's
siblings and his parents may also throw considerable light
c upon these aspects and may have to be looked into for a
proper determination of the question. Suffice it to say while
for the present we consider it to be a case fit for directing
an enquiry, that direction should not be taken as an
expression of any final opinion as regards the true and
D correct age of the appellant which matter shall have to be
independently examined on the basis of the relevant
material."
32. In Daya Nand v. State of Haryana 11 , this Court found
E that on the date of occurrence the age of the appellant was
sixteen years five months and nineteen days and, accordingly,
it was held that he could not have been kept in prison to
undergo the sentence imposed by the Additional Sessions
Judge and affirmed by the High Court. This Court set aside the
F sentence imposed against the appellant and he was directed
to be released from prison.
33. In Lakhan Lal v. State of Bihar12 , the question was
about the applicability of 2000 Act where the appellants were
not juveniles within the meaning of 1986 Act as they were
G above 16 years of age but had not completed 18 years of age
when offences were committed and even when claim of
juvenility was raised after they had attained 18 years of age.
11. (2011) 2 sec 224.
H 12. (2011) 2 sec 2s1.
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 277
OF WEST BENGAL [R.M. LODHA, J.]
This Court gave benefit of 2000 Act to the appellants and they A
were directed to be released forthwith.
34. In Shah Nawaz v. State of Uttar Pradesh and
another13 , the matter reached this Court from the judgment and
order of the Allahabad High Court. An F.l.R. was lodged against B
the appellant, Shah Nawaz, and three others for the offences
punishable under Sections 302 and 307 of IPC. The mother of
the appellant submitted an application before the Board stating
that Shah Nawaz was minor at the time of alleged occurrence.
The Board after holding an enquiry declared Shah Nawaz a C
juvenile under the 2000 Act. The wife of the deceased filed
criminal appeal against the judgment of the Board before the
Additional Sessions Judge, Muzaffarnagar. That appeal was
allowed and the order of the Board was set aside. Shah Nawaz
preferred criminal revision before the High Court against the
order of the Additional Sessions Judge which was dismissed D
giving rise to appeal by special leave before this Court. This
Court considered Rule 12 of 2007 Rules and also noted,
amongst others, the decision in Hari Ram 3 and then on
consideration of the documents, particularly entry relating to the
date of birth entered in the marksheet held that Shah Nawaz E
was juvenile on the date of occurrence of the incident. This
Court in paragraphs 23 and 24 of the Report held as under:
"23. The documents furnished above clearly show that the
date of birth of the appellant had been noted as 18-6-1989. F
Rule 12 of the Rules categorically envisages that the
medical opinion from the Medical Board should be sought
only when the matriculation certificate or school certificate
or any birth certificate issued by a corporation or by any
panchayat or municipality is not available. We are of the G
view that though the Board has correctly accepted the entry
relating to the date of birth in the marksheet and school
certificate, the Additional Sessions Judge and the High
Court committed a grave error in determining the age of
13. (2011) 13 sec 751. H
278 SUPREME COURT REPORTS [2012] 9 S.C.R.
A the appellant ignoring the date of birth mentioned in those
documents which is illegal, erroneous and contrary to the
Rules.
24. We are satisfied that the entry relating to date of birth
B entered in the marksheet is one of the valid proofs of
evidence for determination of age of an accused person.
The school leaving certificate is also a valid proof in
determining the age of the accused person. Further, the
date of birth mentioned in the High School marksheet
produced by the appellant has duly been corroborated by
c the school leaving certificate of the appellant of Class X
and has also been proved by the statement of the clerk of
Nehru High School, Dadheru, Khurd-o-Kalan and recorded
by the Board. The date of birth of the appellant has also
been recorded as 18- 6-1989 in the school leaving
D certificate issued by the Principal of Nehru Preparatory
School, Dadheru, Khurd-o- Kalan, Muzaffarnagar as well
as the said date of birth mentioned in the school register
of the said School at SI. No. 1382 which have been proved
by the statement of the Principal of that School recorded
E before the Board."
In paragraph 26 of the Report, this Court observed that Rule
12 has described four categories of evidence which gave
preference to school certificate over the medical report.
F
35. In Pawan 6 , , a 3-Judge Bench has laid down the
standards for evaluating claim of juvenility raised for the first time
before this Court. If Pawan6 had been cited before the Bench
wlien criminal appeal of Abuzar Hossain @ Gulam Hossain
came up for hearing, perhaps reference would not have been
G made. Be that as it may, in light of the discussion made above,
we intend to summarise the legal position with regard to
Section 7A of 2000 Act and Rule 12 of the 2007 Rules. But
before we do that, we say a word about the argument raised
on behalf of the State of Bihar that claim of juvenility cannot be
H
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 279
OF WEST BENGAL [R.M. LODHA, J.]
raised before this Court after disposal of the case. The A
argument is so hopeless that it deserves no discussion. The
expression, 'any court' in Section 7A is too wide and
comprehensive; it includes this Court. Supreme Court Rules
surely do not limit the operation of Section 7A to the courts other
than this Court where the plea of juvenility is raised for the first s
time after disposal of the case.
36. Now, we summarise the position which is as under:
(i) A claim of juvenility may be raised at any stage even
after final disposal of the case. It may be raised for the first time C
before this Court as well after final disposal of the case. The
delay in raising the claim of juvenility cannot be a ground for
rejection of such claim. The claim of juvenility can be raised in
appeal even if not pressed before the trial court and can be
raised for the first time before this Court though not pressed D
before the trial court and in appeal court.
(ii) For making a claim with regard to juvenility after
conviction, the claimant must produce some material which
may prima facie satisfy the court that an inquiry into the claim
E
of juvenility is necessary. Initial burden has to be discharged
by the person who claims juvenility.
(iii) As to what materials would prima facie satisfy the court
and/or are sufficier1t for discharging the initial burden cannot be
catalogued nor can it be laid down as to what weight should F
be given to a specific piece of evidence which may be sufficient
to raise presumption of juvenility but the documents referred to
in Rule 12(3)(a)(i) to (iii) shall definitely be sufficient for prima
facie satisfaction of the court about the age of the delinquent
necessitating further enquiry under Rule 12. The statement G
recorded under Section 313 of the Code is too tentative and
may not by itself be sufficient ordinarily to justify or reject the
claim of juvenility. The credibility and/or acceptability of the
documents like the school leaving certificate or the voters' list,
etc. obtained after conviction would depend on the facts and H
280 SUPREME COURT REPORTS [2012] 9 S.C.R.
A 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 2 and Pawan8 these documents were not found
prima facie credible while in Jitendra Singh10 the documents
viz., school leaving certificate, marksheet and the medical
s report were treated sufficient for directing an inquiry and
verification of the appellant's age. If such documents prima
facie inspire confidence of the court, the court may act upon
such documents for the purposes of Section 7A and order an
enquiry for determination of the age of the delinquent.
c (iv) An affidavit of the claimant or any of the parents or a
sibling or a relative in support of the claim of juvenility raised
for the first time in appeal or revision or before this Court during
the pendency of the matter or after disposal of the case shall
not be sufficient justifying an enquiry to determine the age of
D such person unless the circumstances of the case are so
glaring that satisfy the judicial conscience of the court to order
an enquiry into determination of age of the delinquent.
(v) The court where the plea of juvenility is raised for the
E first time should always be guided by the objectives of the 2000
Act and be alive to the position that the beneficent and salutary
provisions contained in 2000 Act are not defeated by hyper-
technical approach and the persons who are entitled to get
benefits of 2000 Act get such benefits. The courts should not
F 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
G of probability.
(vi) Claim of juvenility lacking in credibility or trivolous claim
of juvenility or patently absurd or inherently improbable claim
of juvenility must be rejected by the court at threshold whenever
raised.
H
ABUZAR HOSSAIN@ GULAM HOSSAIN v. STATE 281
OF WEST BENGAL
37. The reference is answered in terms of the position A
highlighted in paragraph 36 (i) to (vi). The matters shall now be
listed before the concerned Bench(es) for disposal.
T.S. THAKUR, J.
1. I have had the advantage of going through the order 8
proposed by my esteemed brother R.M. Lodha J., which
summarises the legal position with remarkable lucidity. While I
entirely agree with whatever is enunciated in the judgment
proposed by my erudite colleague, I wish to add a few lines of
my own confined to the proposition stated in Para 36 (IV) of C
the judgment. In that paragraph of the order fall cases in which
the accused setting up the plea of juvenility is unable to produce
any one of the documents referred to in Rule 12(3)(a) (i) to (iii)
of the Rules, under the Act, not necessarily because, he is
deliberately withholding such documents from the court, but D
because, he did not have the good fortune of ever going to a
school from where he could produce a certificate regarding his
date of birth. Para 36 (IV) sounds a note of caution that an
affidavit of a parent or a sibling or other relative would not
ordinarily suffice, to trigger an enquiry into the question of E
juvenility of the accused, unless the circumstances of the case
are so glaring that the court is left with no option except to
record a prima facie satisfaction that a case for directing an
enquiry is made out. What would constitute a 'glaring case' in
which an affidavit may itself be sufficient to direct an inquiry, is F
a question that cannot be easily answered leave alone
answered by enumerating exhaustively the situations where an
enquiry may be justified even in the absence of documentary
support for the claim of juvenility. Two dimensions of that
question may all the same be mentioned without in the least G
confining the sweep of the expression 'glaring case' to a strait-
jacket formulation. The first of these factors is the most mundane
of the inputs that go into consideration while answering a claim
of juvenility like "Physical Appearance" of the accused made
relevant by Rule 12(2) of the Rules framed under the Act. The H
Rule reads:
282 SUPREME COURT REPORTS [2012] 9 S.C.R.
A "12. Procedure to be followed in determination of
Age.-
(1) )()()()(
(2) The Court or the Board or as the case may be the
B 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."
c
2. Physical appearance of the accused is, therefore, a
consideration that ought to permeate every determination under
the Rule aforementioned no matter appearances are at times
deceptive, and depend so much on the race or the region to
o which the person concerned belongs. Physical appearance can
and ought to give an idea to the Court at the stage of the trial
and even in appeal before the High Court, whether the claim
made by the accused is so absurd or improbable that nothing
short of documents referred to in this Rule 12 can satisfy the
E court about the need for an enquiry. The advantage of "physical
appearance" of the accused may, however, be substantially lost,
with passage of time, as longer the interval between the
incident and the court's decision on the question of juvenility,
the lesser the chances of the court making a correct
assessment of the age of the accused. In cases where the
F claim is made in this Court for the first time, the advantage is
further reduced as there is considerable time lapse between
the incident and the hearing of the matter by this Court.
3. The second factor which must ever remain present in
G the mind of the Court is that the claim of juvenility may at times
be made even in cases where the accused does not have any
evidence, showing his date of birth, by reference to any public
document like the register of births maintained by Municipal
Authorities, Panchayats or hospitals nor any certificate from any
H
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 283
OF WEST BENGAL [T.S. THAKUR, J.]
school, as the accused was never admitted to any school. Even A
if admitted to a school no record regarding such admission may
at times be available for production in the Court. Again there
may be cases in which the accused may not be in a position
to provide a birth certificate from the Corporation, the
municipality or the Panchayat, for we know that registration of B
births and deaths may not be maintained and if maintained may
not be regular and accurate, and at times truthful. Rule 12(3)
of the Rules makes only three certificates relevant. These are
enumerated in Sub-Rule 3(a)(i) to (iii) of the Rule which reads
as under: c
"(3)a (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the D
absence whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
4. Non-production of the above certificates or any one of E
them is not, however, fatal to the claim of juvenility, for Sub-Rule
3(b) to Rule 12 makes a provision for determination of the
question on the basis of the medical examination of the accused
in the 'absence' of the certificates. Rule 12(3)(b) runs as under:
F
"12(3) (b) and only in the absence of either (i), (ii) or (iii)
of clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will declare
the age of the juvenile or child. In case exact assessment
of the age cann~t be done, the Court, or the Board or, as G
the case may be, the Committee, for the reasons to be
recorded by them, may, if considered necessary, give
benefit to the child or juvenile by considering his/her age
on lower side within the margin of one year."
The expression 'absence' appearing in the above provision is H
284 SUPREME COURT REPORTS [2012] 9 S.C.R.
A not defined under the Act or the Rules. The word shall, therefore,
be given its literal dictionary meaning which is provided by
Concise Oxford dictionary as under:
"Being away from a place or person; time of being away;
non-existence or lack of; inattenation due to thought of other
B
things."
Black's Law Dictionary also explains the meaning of 'absence'
as under:
c "1. The state of being away from one's usual place of
residence. 2. A failure to appear, or to be available and
reachable, when expected. 3. Louisiana Law. The State
of being an absent person - Also termed (in sense 3)
absentia."
D 5. It is axiomatic that the use of the expression and the
context in which the same has been used strongly suggests that
'absence' of the documents mentioned in Rule 12(3) (a)(i) to
(iii) may be either because the same do not exist or the same
cannot be produced by the person relying upon them. Mere non-
E production may not, therefore, disentitle the accused of the
benefit of the Act nor can it tantamount to deliberate non-
production, giving rise to an adverse inference unless the Court
is in the peculiar facts and circumstances of a case of the
opinion that the nonproduction is deliberate or intended to
F either mislead the Court or suppress the truth.
6. It is in this class of cases that the court may have to
exercise its powers and discretion with a certain amount of
insight into the realities of life. One of such realities is that
G illiteracy and crime have a close nexus though one may not be
directly proportional to the other. Juvenile delinquency in this
country as elsewhere in the world, springs from poverty and
unemployment, more than it does out of other causes. A large
number of those engaged in criminal activities, may never have
H had the opportunity to go to school. Studies conducted by
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 285
OF WEST BENGAL [T.S. THAKUR, J.]
National Crime Records Bureau (NCRB), Ministry of Home A
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 B
the total juveniles arrested fell into the lowest income category.
A similar study is conducted and published by B.N. Mishra in
his Book 'Juveni~e Delinquency and Justice System', in which
the author states as follows:
"One of the prominent features of a delinquent is poor C
educational attainment. More than 63 per cent o f
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 D
attainment is not due to the lack of intelligence but may
be due to lack of opportunity. Although free education is
provided to Scheduled Castes and Scheduled Tribes,
even then, the delinquents had a very low level of
expectations and aspirations regarding their future which E
in turn is due to lack of encouragement and unawareness
of their parents that they play truant."
7. What should then be the approach in such cases, is the
question. Can the advantage of a beneficial legislation be F
denied to such unfortunate and wayward delinquents? Can the
misfortune of the accused never going to a school be followed
or compounded by denial of the benefit that the legislation
provides in such emphatic terms, as to permit an enquiry even
after the last Court has disposed of the appeal and upheld his G
conviction? The answer has to be in the negative. If one were
to adopt a wooden approach, one could say nothing short of a
certificate, whether from the school or a municipal authority
would satisfy the court's conscience, before directing an
enquiry. But, then directing an enquiry is not the same thing as H
286 SUPREME COURT REPORTS [2012] 9 S.C.R.
A declaring the accused to be a juvenile. The standard of proof
required is different for both. In the former, the court simply
records a prima facie conclusion. In the latter the court makes
a declaration on evidence, that it scrutinises and accepts only
if it is worthy of such acceptance. The approach at the stage
B of directing the enquiry has of necessity to be more liberal, lest,
there is avoidable miscarriage of justice. Suffice it to say that
while affidavits may not be generally accepted as a good
enough basis for directing an enquiry, that they are not so
accepted is not a rule of law but a rule of prudence. The Court
C would, therefore, in each case weigh the relevant factors, insist
upon filing of better affidavits if the need so arises, and even
direct, any additional information considered relevant including
information regarding the age of the parents, the age of siblings
and the like, to be furnished before it decides on a case to case
basis whether or not an enquiry under Section 7A ought to be
0
conducted. It will eventually depend on how the court evaluates
such material for a prima facie conclusion that the Court may
or may not direct an enquiry. With these additions, I respectfully
concur with the judgment proposed by my esteemed Brother
Lodha J.
E
R.P. Reference Answered.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "juvenility"Sign in to search