Supreme Court of India
HARI RAMversusSTATE OF RAJASTHAN & ANR.
- Citation
- 2009 INSC 693
- Decided
- 5 May 2009
- Disposal
- Appeal(s) allowed
- Bench
- ALTAMAS KABIR
Holding
For offences committed before 1 April 2001, any person who was below 18 years at the time of the offence is deemed a juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended), and a claim of juvenility may be decided at any stage, even after final disposal.
Summary
Hari Ram was arrested in 1998 for offences under the IPC and the trial court initially held him to be a juvenile (under 16) and sent the case to the Juvenile Justice Board. The Rajasthan High Court later held he was over 16 and applied the 1986 Juvenile Act, rejecting the claim of juvenility. On appeal, the Supreme Court examined whether the Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended) applies to pending cases where the offender was below 18 at the time of the offence, and whether a claim of juvenility can be raised even after final disposal. Reading sections 2(k), 2(1), 7A, 20 and rule 12 together, the Court held that all persons below 18 at the time of the offence are deemed juveniles for such pending cases, irrespective of the date of the claim. Consequently, the appellant is a juvenile and the case must be sent back to the Juvenile Justice Board for appropriate disposition.
Issues considered
- The applicability of the Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended) to cases pending on 1 April 2001 where the offender was below 18 years at the time of the offence.
- Whether a claim of juvenility can be raised and determined after the final disposal of a criminal proceeding.
- Whether the High Court erred in applying the Juvenile Justice Act, 1986 instead of the 2000 Act to the appellant.
- The proper procedure for age determination under Rule 12 of the Juvenile Justice Rules, 2007.
Legislation cited
- Constitution of Indias. Article 15(3), s. Article 39(e), s. Article 39(f), s. Article 45, s. Article 47
- Indian Evidence Act, 1872s. 35
- Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 323, s. 325
- Juvenile Justice (Care and Protection of Children) Act, 2000s. 15, s. 20, s. 2(1), s. 2(k), s. 49, s. 64, s. 7A
- Juvenile Justice (Care and Protection of Children) Rules, 2007s. Rule 12, s. Rule 98
Subjects
Juvenile Justice Actclaim of juvenilitypending casesage determinationretroactive applicationrehabilitationSection 7ASection 20Rule 12Supreme Court
Judgment
[2009] 7 S.C.R. 623
r ....
HARi RAM A
V.
STATE OF RAJASTHAN & ANR.
Criminal Appeal No. 907 of 2009
MAY 5, 2009
B
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]
Juvenile Justice (Care and Protection of Children) Act,
.. 2000 - ss. 2(k}, 2(1), 7A, 20 and 49 - Applicability of the Act -
To the pending case of a juvenile on the date when the Act
came into force - Held: In view of conjoint reading of ss. 2(k}, c
2(1), 7A, 20 and 49 rlw rr. 12 and 98 of Juvenile Justice Rules,
the provision Of the Act are applicable to such juvenile - The
Act is applicable even in finally disposed of cases - Juvenile
Justice (Care and Protection of Children) Rules, 2007 - rr. 12
.,., and 98. D
Nature and object of the Act - Discussed - Constitution
of India, 1950 - Articles 15(3), 39(e) and (f), 45 and 47 -
c Convention on the Rights of the Child and the United Nations
Standard Minimum Rules for the Administration of Juvenile
Justice, 1985. E
Criminal Law - Claim of juvenility - If two views possible
- Court to lean in favour of holding the offender to be a juvenile
~~ in borderline cases.
Appellant-accused was arrested for commission of F
offences ulss. 148, 302, 149, 3251149 and 323/149 l.P.C.
The Trial Court determined the age of the appellant-
accused to be below 16 years on the date of the
commission of the offences and thus declaring him to be
a juvenile directed the case to Juvenile Justice Board for G
'
the trial of his case. Cross appeals were filed by the
../•~
appellant-accused as well as the State. The appeal of the
accused challenging the framing of charges was
dismissed by High Court. Appeal of the State was allowed
623 H
624 SUPREME COURT REPORTS [2009] 7 S.C.R.
.;.
A by High Court holding that he was not a juvenile because
according to his date of birth, as given by his father, his
age was sixteen years and thirteen days and his medical
examination by a medical board indicated his age at the
relevant time to be between sixteen and seventeen years.
B Hence the present appeal.
Allowing the appeal and remitting the matter to
Juvenile Justice Board, the Court
HELD: 1.1 The very scheme of Juvenile Justice (Care
..
c and Protection of Children) Act, 2000 is rehabilitatory in
nature and not adversarial which the courts are generally
used to. The implementation of the said law, therefore,
requires a complete change in the mind-set of those who
are vested with the authority of enforcing the same, without
which it will be almost impossible to achieve the objects of
D
the Juvenile Justice Act, 2000. [Para 2] [631-A-B] ....
1.2 The need to treat children differently from adults
in relation to commission of offences had been under the
consideration of the Central Government ever since India
E achieved independence. With such object in mind,
Parliament enacted the Juvenile Justice Act, 1986, in order .
to achieve the constitutional goals contemplated in
Articles 15(3), 39(e) and (f), 45 and 47 of the Constitution
imposing on the State a responsibility of ensuring that all ~
F the needs of children are met and that their basic human
rights are fully protected. Subsequently, in keeping with
certain international Conventions and in particular the
Convention on the Rights of the Child and the United
Nations Standard Minimum Rules for the Administration
of Juvenile Justice, 1985, commonly known as the Beijing
G
Rules, the legislature enacted the Juvenile Justice (Care
.•
and Protection of Children) Act, 2000 to attain certain
objects. [Para 13] [634-F-H; 635-A-B]
1.3 It is clear from the provisions of the Juvenile
H Justice Act, 2000, as amended by the Amendment Act,
HARi RAM V STATE OF RAJASTHAN & ANR 625
'-
2006 and the Juvenile Justice Rules, 2007, the scheme of A
the Act is to give children, who have, for some reason or
the other, gone astray, to realise their mistakes, rehabilitate
themselves and rebuild their lives and become useful
citizens of society, instead of degenerating into hardened
criminals. [Para 36] [649-A-C] B
2.1 On a conjoint reading of Sections 2(k), 2(1), 7A, 20
... '
and 49 r/w Rules 12 and 98, all persons who were below
,,
the age of 18 years on the date of commission of the
offence even prior to 1st April, 2001, would be treated as
juveniles, even if the claim of juvenility was raised after c
they had attained the age of 18 years on or before the
date of commencement of the Act and were undergoing
sentence upon being convicted. [Para 37] [649-E-F]
2.2 The effect of the proviso to Section 7-A introduced
D
by the Amending Act, 2006 makes it clear that the claim of
juvenility may be raised before any Court which 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 Act and the Rules made
thereunder which includes the definition of "Juvenile" in E
Section 2(k) and 2(1) of the Act even if the Juvenile had
ceased to be so on or before the date of commencement
....J
of the Act. [Para 31] [646-F-H]
2.3 The Proviso and the Explanation to Section 20 F
were added by Amendment Act 33 of 2006, to set at rest
any doubts that may have arisen with regard to the
applicability of the Juvenile Justice Act, 2000, to cases
pending on 1st April, 2001, where a juvenile, who was
below 18 years at the time of commission of the offence,
G
_..... was involved. The Explanation which was added in 2006,
makes it very clear that in all pending cases, which would
include not only trials but even subsequent proceedings
by way of revision or appeal, the determination of juvenility
of a juvenile would be in terms of Clause (I) of Section 2,
H
626 SUPREME COURT REPORTS [2009] 7 S.C.R.
A even if the juvenile ceased to be a juvenile on or before
1st April, 2001, when the Juvenile Justice Act, 2000, cam~
into force, and the provisions of the Act would apply as if
the said provision had been in force for all purposes and
for all material times when the alleged offence was
B committed. In fact, Section 20 enables the Court to
consider,. and determine the juvenility of a person even
after conviction by the regular Court and also empowers
the Court, while maintaining the conviction, to.set aside
the sentence imposed and forward the case to the
C Juvenile Justice Board concerned for passing sentence
in accordance with the provisions of the Juvenile Justice
Act, 2000. [Para 26] [644-C-G]
2.4 Rule 12 of Juvenile Justice (Care and Protection
of Children) Rules, 2007 indicates the procedure to be
D followed to give effect to the provisions of Section 7A
when a claim of juvenility is raised. Sub-Rules (4) and (5)
of Rule 12 are of special significance in that they provide
that once the age of a juvenile or child in conflict with law
is found to be less than 18 years on the date of offence
E 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 stating the age of the juvenile or
stating the status of the juvenile, and no further inquiry is
F 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. [Para 18] [640-C-F]
2.5. Apart from the aforesaid provisions of the 2000
Act, as amended, and the Juvenile Justice Rules, 2007,
G Rule 98 thereof has to be read in tandem with Section 20
of the Juvenile Justice Act, 2000, as amended by the
Amendment Act, 2006, which provides that even in
disposed of cases of juveniles in conflict with law, the
State Government or the Board could, either suo motu or
H on an application made for the purpose, review the case
HARi RAM V STATE OF RAJASTHAN & ANR. 627
., ~
of a juvenile, determine the juvenility and pass an A
appropriate order u/s. 64 of the Act for the immediate
release of the juvenile whose period of detention had
exceeded the maximum period provided in Section 15 of
the Act, i.e., 3 years.[Para 32] [647-C-E]
2.6 Sub-Section (1) of Section 49 vests the Competent B
Authority with power to make due inquiry as to the age of
a person brought before it and for the said purpose to
'- take such evidence as may be necessary (but, not an
affidavit) and shall record a finding as to whether the
person is a juvenile or a child or not, stating his age as c
nearly as may be. Sub-Section (2) provides that no order
of a Competent Authority would be deemed to have
become invalid merely on account of any subsequent
proof that the person, in respect of whom an order is made,
is not a juvenile or a child, and the age recorded by the D
Competent Authority to be the age of the person brought
before it, would, for the purpose of the Act, be deemed to
be the true age of a child or a juvenile in conflict with law.
[Para 34] [648-B-D]
'
2.7 Sub-Clause (b) of Rule 12(3) provides that only in E
the absence of any such document, would a medical
opinion be sought for from a duly constituted Medical
Jj Board, which would declare the age of the juvenile or the
child. In case exact assessment of the age cannot be
done, the Court or the Board or as the case may be, the F
Child Welfare Committee, for reasons to be recorded by
it, may, if considered necessary, give benefit to the child
or juvenile by considering his/her age on the lower side
within a margin of one year. [Para 35] [648-G-H; 649-A-B]
G
~
.. 2.8 The present case deals w.ith .cases which were
pending on 1st April, 2001, when the Juvenile Justice Act,
2000, came into force. The instant case is covered by the
amended provisions of Sections 2(k), 2(1), 7A and 20 of
the Juvenile Justice Act, 2000. However, inasmuch as, the
H
628 SUPREME COURT REPORTS [2009] 7 S.C.R.
-#
A appellant was found to have completed the age of 16
years and 13 days on the date of alleged occurrence, the
High Court was of the view that the provisions of the
Juvenile Justice Act, 1986, would not apply to the
appellant's case. The High Court, while deciding the matter,
B did not have the benefit of either the amendment of the Act
or the introduction of the Juvenile Justice Rules, 2007. Even
otherwise, the matter was covered by the decision of
Supreme Court wherein inter alia, it was held that when a ...:,
claim of juvenility is raised and on the evidence available
c two views are possible, the Court should lean in favour of
holding the offender to be a juvenile in borderline cases.
[Paras 25 and 38] [643-E; 649-G-H; 650-A-B]
2.9 Since the appellant was below 18 years of age at
the time of commission of the offence the provisions of
D the said Act would apply in his case in full force. In the
instant case, there is no controversy that the appellant
was about sixteen years of age on the date of commission
of the alleged offence and had not completed eighteen
years of age. Notwithstanding the definition of "juvenile"
E under the Juvenile Justice Act, 1986, the appellant is
covered by the definition of "juvenile" in Section 2(k) and
the definition of "juvenile in conflict with law" in Section
2(1) of the Juvenile Justice Act, 2000, as amended. [Paras
42, 43 and 44] [651-G-H; 652-A-C]
F 2.10 The claim of the appellant that his date of birth
was K-artik Sudi 1, Samvat Year 2039, though no basis has
been provided for the fixation of the said date itself in the
light of the amended provisions. Often, parents of
children, who come from rural backgrounds, are not aware
G of the actual date of birth of a child, but relate the same to
some event which may 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, but
such an exercise is not required to be undertaken in the
H present case since even according to the determination
HARi RAM V STATE OF RAJASTHAN & ANR. 629
''-
of the appellant's age by the High Court, the appellant was A
below eighteen years of age when the offence was alleged
to have been committed. The order of the High Court
holding that the provisions of the Juvenile Justice Act,
1986, would not be applicable to the appellant's case since
he was allegedly 13 days above the age prescribed, is B
not sustainable. [Paras 38 and 39] [650-C-F]
Pratap Singh vs. State of Jharkhand and Anr. (2005) 3
... SCC 551; Munney@ Rahat Jan Khan vs. State of UP (2006)
12 SCC 697; Jameel vs.State of Maharashtra (2007) 11 SCC
420; Vimal Chadha vs. Vikas Chaudhary (2008) 8 SCALE c
608; Babloo Pasi vs. State of Jharkhand (2008) 13 SCALE
137; Ranjit Singh vs. State of Haryana (2008) 9 SCC 453 -
held inapplicable.
Santenu Mitra vs. State of West Bengal, (1998) 5 SCC
D
697; Umesh Chandra vs.State of Rajasthan (1982) 2 SCC
202; Mohd. lkram Hussain vs. State of UP & Ors.1964 (5)
SCR 86; Rajinder Chandra vs. State of Chhattisgarh and Anr.
(2002) 2 SCC 287; Pratap Singh vs. State of Jharkhand and
Anr. (2005) 3 SCC 551; Amit Oas vs. State of Bihar (2000) 5
SCC 488; Bhola Bhagat vs. State of Bihar (1997) 8 SCC 720; E
Krishna Bhagwan vs. State of Bihar AIR 1989 Pat. 217; Dilip
Saha vs. State of WB. AIR 1978 Cal. 529 - referred to .
.J Case Law Reference
(1998) 5 sec 697 Referred to Para 8 F
(1982) 2 sec 202 Referred to Para 8
(1964) 5 SCR 86 Referred to Para 8
(2002) 2 sec 287 Referred to Para 9 G
A~ (2005) 3 sec 551 Referred to Para 17
(2000) 5 sec 488 Referred to Para 20
(1997) 8 sec 120 Referred to Para 20
H
630 SUPREME COURT REPORTS (2009] 7 S.C.R.
_,.
A AIR 1989 Pat. 217 Referred to Para 20
AIR 1978 Cal. 529 Referred to Para 20
(2005) 3 sec 551 Held inapplicable. Para 27
(2006) 12 sec 697 Held inapplicable. Para 27
B
(2007) 11 sec 420 Held inapplicable. Para 27
...
(2008) 8 SCALE 608 Held inapplicable. Para 27 __.
(2008) 13 SCALE 137 Held inapplicable. Para 27
c (2008) 9 sec 453 Held inapplicable. Para 27
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 907 Of 2009
From the Judgement and Order dated 07.12.2005 of the
D Hon'ble High Court of Judicature for Rajasthan at Jodhpur in ..
S.B. Crl. Revision No. 165 of 2000
Sushil Kumar Jain, Puneet Jain, Ashwin V. Kothmath,
Pratibha Jain, for the Appellant.
E Milind Kumar, Aruneshwar Gupta, for the Respondent.
The Judgement of the Court was delivered by
ALTAMAS KABIR, J.
1. Leave granted.
F
2. This appeal raises certain questions which are
fundamental to the understanding and implementation of the
objects for which the Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter referred to as the 'Juvenile
G Justice Act, 2000') was enacted. The said law which was
enacted to deal with offences committed by juveniles, in a ...
manner which was meant to be different from the law applicable
to adults, is yet to be fully appreciated by those who have been
entrusted with the responsibility of enforcing the same, possibly
on account of their inability to adapt to a system which, while
H
HARi RAM V. STATE OF RAJASTHAN & ANR. 631
[AlTAMAS KABIR, J]
.,,.
·\
having the trappings of the general criminal law, is, however, A
different therefrom. The very scheme of the aforesaid Act is
rehabilitatory in nature and not adversarial which the courts are
generally used to. The implementation of the said law, therefore,
requires a complete change in the mind-set of those who are
vested with the authority of enforcing the same, without which it B
will be almost impossible to achieve the objects of the Juvenile
Justice Act, 2000.
... 3. The appellant, Hari Ram, was arrested along with
several others on 30.11.1998, for the alleged commission of
offences under Sections 148, 302, 149, Section 325 read with c
Section 149 and Section 323/149 Indian Penal Code. After the
case was committed for trial, the Additional Sessions Judge,
Didwana, by his order dated 3rd April, 2000, in Sessions Case
No.54 of 1999 determined the age of the accused to be below
16 years on the date of commission of the offence and after D
declaring him to be a juvenile, directed that he be tried by the
Juvenile Justice Board, Ajmer, Rajasthan.
4. This appeal has been filed against the common order
th
dated 7 December, 2005, passed by the Jodhpur Bench of
the Rajasthan High Court in Crl. Revision Petition No.165 of E
2000, filed by the Respondent No.2 herein and in Crl. Revision
Petition No.199 of 2005 filed by the appellant, also being
J aggrieved by the said common order. While Crl. Revision
No.199 filed by the appellant herein challenging the framing of
charges was dismissed, Crl. Revision No.165 filed by the State F
of Rajasthan was allowed holding that the appellant was not a
juvenile and the provisions of the Juvenile Justice Act, 2000,
were not, therefore, applicable to him.
5. According to the appellant's father, the appellant's date
G
_.. of birth is Kartik Sudi 1, Samvat Year 2039, which is equivalent
A th
to 17 October, 1982, whereas the offence was alleged to have
1
been committed on 30 h October, 1998, which mathematically'
indicates that at the time of commission of the offence, the
appellant had completed 16 years and 13 days and was,
H
632 SUPREME COURT REPORTS [2009] 7 S.C.R.
A therefore, excluded from the scope and operation of the Juvenile
Justice Act, 2000. Furthermore, the medical examination
conducted in respect of the appellant by a Medical Board
indicated that his age at the relevant time was between 16 and
17 years. After considering the various decisions of this Court
B indicating the manner in which the age of a juvenile is to be
determined, the High Court observed that the inescapable
conclusion which could be arrived at is that on the date of the
incident, the accused-appellant herein was above 16 years of
age and was, therefore, not governed by the provisions of the
C Juvenile Justice Act, 1986 (hereinafter referred to as the '1986
Act').
6. It is the said order of the High Court which has been
impugned in this appeal.
7. Appearing for the appellant, Mr. Sushi! Kumar Jain,
0
learned Advocate, submitted that the High Court had acted in a
highly technical manner in holding that the appellant was not a
juvenile and had in the process defeated the very object of the
Juvenile Justice Act, 2000, which is aimed at rehabilitating
juvenile offenders in order to bring them back to main-stream
E society and to give them an opportunity to rehabilitate
themselves as useful citizens of the future. In fact, the definition
of "juvenile" in the 1986 Act was altered in the Juvenile Justice
Act, 2000, to include persons who had not completed 18 years
of age. In other words, the age until which a male child in conflict
F with law would be treated as a juvenile was raised from 16 years
to 18 years.
8. Mr. Jain submitted that the learned Single Judge of the
High Court appears to have misconstrued the decisions cited
G before him in the case of Santenu Mitra vs. State of West
Bengal, [(1998) 5 SCC 697] and Umesh Chandra vs. State of
Rajasthan [(1982) 2 SCC 202], wherein the admissibility of
certain records, including school records maintained by private
institutions, under Section 35 of the Indian Evidence Act, 1872
was under consideration. On the other hand, Mr. Jain referred
H
HARi RAM V STATE OF RAJASTHAN & ANR. 633
[ALTAMAS KABIR, J]
~-
to an earlier decision of this Court in the case of Mohd. lkram A
Hussain vs. State of UP & Ors. [1964 (5) SCR 86), where
certain copies from the school registers were looked into and it
was held that the same amounted to evidence under the Indian
Evidence Act as the entries in the school registers were made
long before the same were used by way of evidence. This Court B
observed that the said entries were reliable as they had been
made ante !item motam. Mr. Jain also referred to certain
observations made in Umesh Chandra's case (supra) while
.. interpreting Section 35 of the Indian Evidence Act to the effect
that there is no legal requirement that a public or other official c
book should be kept only by a public officer and all that is
required is that it should be regularly kept in discharge of official
duties.
9. In support of his submissions, Mr. Jain lastly referred to
the decision of this Court in the case of Rajinder Chandra vs. D
~-
State of Chhattisgarh & Anr. ((2002) 2 SCC 287], wherein in
paragraph 5 this Court observed as follows :
"5. It is true that the age of the accused is just on the
border of sixteen years and on the date of the offence and
his arrest he was less than 16 years by a few months only. E
In Amit Das v. State of Bihar [(2005) 5 SCC 488) this
Court has, on a review of judicial opinion, held that while
dealing with the question of determination of the age of
the accused for the purpose of finding out whether he is
juvenile or not, a hypertechnical approach should not be F
adopted while appreciating the evidence adduced on
behalf of the accused in support of the plea that he was a
juvenile and if two views may be possible on the said
evidence, the court should lean in favour of holding the
accused to be a juvenile in borderline cases. The law, so G
~--'· laid down by this Court squarely applies to the facts of the
present case."
10. Mr. Jain emphasised that this was also a similar case
in which the record, according to the date of birth indicated by
H
634 SUPREME COURT REPORTS [2009] 7 S.C.R.
.....
A his father and another witness - Narain Ram, shows that he
was just 13 days older than the cut-off limit of 16 years provided
in Section 2(h) of the 1986 Act.
11. Mr. Jain submitted that since the incident is alleged to
th
have taken place as far back as on 30 October, 1998 and
B more than 10 years have elapsed since then and the definition
of "juvenile" had since been amended to include children who
had not yet attained the age of 18 years, the High Court should
not have taken such a hypertechnical view and should not have ~
interfered with the order of the Additional Sessions Judge,
c Didwana, declaring the appellant to be a juvenile.
12. On behalf of the respondents it was submitted that even
on the basis of the age as disclosed by the appellant's father,
the appellant was over 16 years of age on the date of
commission of the offence and could not, therefore, be treated
D
to be a juvenile as defined in the 1986 Act. It was submitted that
the documents, which were produced in support of the
appellant's claim to be a minor, show him to have crossed the
age of 16 years on the date of commission of the offence and
the High Court had merely corrected the error of the Additional
E Sessions Judge, Didwana, in calculation of the appellant's age.
According to the respondents, the order of the High Court
impugned in the present appeal did not call for any interference
and the appeal was liable to be dismissed.
F 13. As indicated in the very beginning of this judgment, the
Juvenile Justice Act, 2000, was enacted to deal with offences
allegedly committed by juveniles on a different footing from
adults, with the object of rehabilitating them. The need to treat
children differently from adults in relation to commission of
offences had been under the consideration of the Central
G
Government ever since India achieved independence. With such
object in mind, Parliament enacted the Juvenile Justice Act, •
1986, in order to achieve the constitutional goals contemplated
in Articles 15(3), 39(e) and (f), 45 and 47 of the Constitution
imposing on the State a responsibility of ensuring that all the
H
HARi RAM V. STATE OF RAJASTHAN & ANR. 635
[ALTAMAS KABIR, J.]
.. ~-
needs of children are met and that their basic human rights are A
fully protected. Subsequently, in keeping with certain international
Conventions and in particular the Convention on the Rights of
the Child and the United Nations Standard Minimum Rules for
the Administration of Juvenile Justice, 1985, commonly known
as the Beijing Rules, the Legislature enacted the Juvenile Justice B
(Care and Protection of Children) Act, 2000 to attain the following
objects :
"'
.L (i) to lay down the basic principles for administering
justice to a juvenile or the child;
c
(ii) to make the juvenile system meant for a juvenile or
the child more appreciative of the developmental
needs in comparison to criminal justice system as
applicable to adults;
.. (iii) to bring the juvenile law in conformity with the United D
Convention on the Rights of the Child;
(iv) to prescribe a uniform age of eighteen years for both
boys and girls;
(v) to ensure speedy disposal of cases by the authorities E
envisaged under this Bill regarding juvenile or the
child within a time limit of four months;
;. (vi) to spell out the role of the State as a facilitator rather
than doer by involving voluntary organizations and
local bodies in the implementation of the proposed F
legislation;
(vii) to create special juvenile police units with a humane
approach through sensitization and training of police
personnel; G
_,, . (viii) to enable increased accessibility to a juvenile or the
child by establishing Juvenile Justice Boards and
Child Welfare Committees and Homes in each
district or group of districts;
H
636 SUPREME COURT REPORTS [2009] 7 S.C.R.
A (ix) to minimize the stigma and in keeping with the
developmental needs of the juvenile or the child, to
separate the Bill into two parts - one for juveniles in
conflict with law and the other for the juvenile or the
child in need of care and protection;
B (x) to provide for effective provisions and various
alternatives for rehabilitation and social reintegration
such as adoption, foster care, sponsorship and
aftercare of abandoned, destitute, neglected and
delinquent juvenile and child."
c
The said Act ultimately came into force on 1st April, 2001.
14. Section 2(k) of the said Act defines a juvenile or child
as a person who has not completed eighteenth years of age. A
broad distinction has, however, been made between juveniles
D in general and juveniles who are alleged to have committed
offences. Section 2(1) defines "a juvenile in conflict with law" as
a juvenile who is alleged to have committed an offence.
Determination of age, therefore, assumes great importance in
matters brought before the Juvenile Justice Boards. In fact,
E Chapter II of the Juvenile Justice Act, 2000, deals exclusively
with juveniles in conflict with law and provides a complete Code
in regard to juveniles who are alleged to have committed
offences which are otherwise punishable under the general law
of crimes.
F 15. Section 4 of the Juvenile Justice Act, 2000, provides
for constitution of Juvenile Justice Boards for every district in a
State to exercise and discharge the duties conferred or imposed
on such Boards in relation to juveniles in conflict with law.
G 16. Section 18 of the Act prohibits joint proceedings and
trial of a juvenile and a person who is not a juvenile and the
punishment that can be awarded to a juvenile is enumerated in
...
Section 15.
17. Since the application of the Juvenile Justice Act, 2000,
H to a person brought before the Juvenile Justice Board
HARi RAM V. STATE OF RAJASTHAN & ANR. 637
[AlTAMAS KABIR, J.]
~-
-+ ' (hereinafter referred to as 'the Board') depends on whether such A
person is a juvenile or not within the meaning of Section 2(k)
thereof, the determination of age assumes special importance
and the said responsibility has been cast on the said Board.
Subsequently, after the decision of a Constitution Bench of this
Court in the case of Pratap Singh vs. State of Jharkhand & B
Another [(2005) 3 SCC 551], the legislature amended the
... provisions of the Act by the Amendment Act, 2006, by substituting
Section 2(1) to define a "juvenile in conflict with law" as a "juvenile .
who is alleged to have committed an offence and has not
completed eighteen years of age as on the date of commission c
of such offence" (emphasis supplied) and to include Section 7-
A which reads as follows:-
"7A. Procedure to be followed when claim of juvenility
is raised before any court.- (1) Whenever a claim of
- •
juvenility is raised before any court or a court is of the D
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 E
-I- or a child or not, stating his age as nearly as may be:
Provided that a cl~im 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 F
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
G
of commission of the offence under sub-section'(1), it shall
A-i
forward the juvenile to the Board for passing appropriate
order, and the sentence if any, passed by a cour:;t shall be
deemed to have no effect."
(Emphasis supplied) H
638 SUPREME COURT REPORTS [2009] 7 S.C.R.
-~
A 18. Section 7-A makes provision for a claim of juvenility to
be raised before any Court at any stage, even after final disposal
of a case and sets out the procedure which the Court is required
to adopt, when such claim of juvenility is raised. It provides for
an inquiry, taking of evidence as may be necessary (but not
B affidavit) so as to determine the age of a person and to record
a finding whether the pers,on in question is a juvenile or not. The
aforesaid provisions were, however, confined to Courts, and
proved inadequate as far as the Boards were concerned.
Subsequently, in the Juvenile Justice (Care and Protection of
Children) Rules, 2007, which is a comprehensive guide as to
c how the provisions of the Juvenile Justice Act, 2000, are to be
implemented, Rule 12 was introduced providing the procedure
to be followed by the Courts, the Boards and the Child Welfare
Committees for the purpose of determination of age in every
case concerning a child or juvenile or a juvenile in conflict with
D law. Since the aforesaid provisions are interconnected and lay
down the procedures for determination of age, the said Rule is
reproduced hereinbelow:
-
"12. Procedure to be followed in determination of
Age;- (1) In every case concerning a child or a juvenile in
E conflict with law, the court or the Board or as the case may
be the Committee referred to in rule 19 of these rules shall
determine the age of such juvenile or child or a juvenile in
conflict with law within a period of thirty days from the date
of making of the application for that purpose.
F
(2) The Court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of the
juvenile or the child or as the case may be the juvenile in
conflict with law, prima facie on the basis of physical
appearance or documents, if available, and send him to
G the observation home or in jail.
> .
(3) In every case concerning a child or juvenile in conflict
with law, the age determination inquiry shall be conducted
by the court or the Board or, as the case may be, the
H Committee by seeking evidence by obtaining -
HARi RAM V. STATE OF RAJASTHAN & ANR. 639
[ALTAMAS KABIR, J.]
'I- (a) (i) the matriculation or equivalent certificates, if A
....
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other 'i
1
than a play school) first attended; and in the.,
absence whereof;
8
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
~-
(b) and only in the absence of either (i), (ii) or (iii) of
' clause (a) above, the medical opinion will be sought
from a duly constituted Medical Boar9, which will c
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or
the Board or, as the case may be, the Committee,
""'-'l
for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or D
.L juvenile by considering his/her age on lower side
within the margin of one year.
and, while passing orders in such case shall, after taking
into consideration such evidence as may be available, or
the medical opinion, as the case may be, record a finding
E
in respect of his age and either of the evidence specified
in any of the clauses (a)(i), (ii), (iii) or in the absence
j whereof, clause (b) shall be the conclusive proof of the
~-
age as regards such child or the juvenile in conflict with
law. F
(4) if the age of a juvenile or child or the juvenile in conflict
with law is found to be below 18 years on the date of
offence, on the basis of any of the conclusive proof
~ specified in sub-rule (3), the Court or the Board or as the
G
case may be the Committee shall in writing pass an order
~ stating the age and declaring the status of juvenility or
otherwise, for the purpose of the Act and these rules and
a co_py of the order shall be given to such juvenile or the
person Goncerned.
H
640 SUPREME COURT REPORTS [2009] 7 S.C.R.
A (5) Save and except where, further inquiry or otherwise is -/'
required, inter alia in terms of section 7A, section 64 of +-
the Act and these rules, no further inquiry shall be
conducted by the court or tbe Board after examining and
obtaining the certificate or any other documentary proof
B referred to in sub-rule (3) of this rule.
(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
'1.
contained in sub-rule (3) and the Act, requiring dispensation
c of the sentence under the Act for passing appropriate
order in the interest of the juvenile in conflict with law."
Sub-Rules (4) and (5) of Rule 12 are of special significance
in that they provide that once the age of a juvenile or child in
cohflict with law is found to be less than 18 years on the date of
D
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 stating the age of the juvenile or stating the status
of the juvenile, and no further inquiry is to be conducted by the
E 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 to give
effect to the provisions of Section 7A when a claim of juvenility
is raised. •
F
19. One of the problems which has frequently arisen after
the enactment of the Juvenile Justice Act, 2000, is with regard
to the application of the definition of "juvenile" under Section
2(k) and (I) in resriect of offences alleged to have been
1
committed prior to 1 April, 2001 when the Juvenile Justice Act,
G
2000 came into force, since under the 1986 Act, the upper age
limit for male children to be considered as juveniles was 16 .I.,
years. The question which has been frequently raised is, whether
a male person who was above 16 years on the date of
commission of the offence prior to 1st April, 2001, would be
H
HARi RAM V. STATE OF RAJASTHAN & ANR. 641
.... [ALTAMAS KABIR, J]
-+
entitled to be considered as a juvenile for the said offence if he A
had not completed the age of 18 years on the said date. In other
words, could a person who was not a juvenile within the meaning
of the 1986 Act when the offence was committed, but had not
completed 18 years, be governed by the provisions of the
Juvenile Justice Act, 2000, and be declared as a juvenile in B
relation to the offence alleged to have been committed by him?
.,
20. +he said question, which is identical to the question
raised in these proceedings, was considered in the case of
- Amit Das vs. State of Bihar [(2000) 5 SCC 488], wherein, in
c
the light of the definition of "juvenile" under the 1986 Act, which
was then subsisting, this Court came to a finding that the
procedures prescribed by the 1986 Act were to be adopted
orily when the Competent Authority found the person brought
before it or appearing before it to be under 16 years of age, if a
)._
boy, and under 18 years of age, if a girl, on the date of being so D
brought orsuch appearance first before the Competent Authority.
This Court also came to a finding that the date of commission
of offence is irrelevant for finding out whether the person is a
juvenile within the meaning of Clause (h) of Section 2 of the
1986 Act. In the said decision, this Court sought to distinguish E
the earlier decisions in the case of Santenu Mitra's case (supra),
Bhola Bhagat vs. State of Bihar [(1997) 8 SCC 720] and
i KrishnaBhagwan vs. State of Bihar[AIR 1989 Pat. 217], which
was a Full Bench decision. It also over-ruled the decision of the
Calcutta High Court in Dilip Saha vs. State of WB. [AIR 1978 F
Cal. 529], where the Calcutta High Court, while interpreting the
provisions of the West Bengal Children's Act, 1959, which is a
pari materia enactment, took the view that the age of the accused
at the time of commission of the offence is the relevant age for
attracting the provisions of the said Act and not his age at the
G
,.~ time of trial.
21. The question which fell for decision inArnit Das's case
(supra), once again fell for the consideration of this Court in the
case of Pratap Singh's case (supra), where the decision of this
Court in Umesh Chandra's case (supra), which expressed a H
642 SUPREME COURT REPORTS [2009] 7 S.C.R.
.~
....
A view which was contrary to that expressed in Amit Das's case
(supra), was brought to the notice of the Court, which referred
the matter to the Constitution Bench to settle the divergence of
views. In fact, the Constitution Bench formulated two points for
decision, namely,
B (a) Whether the date of occurrence will be the reckoning
date for determining the age of the alleged offender ~
as juvenile offender or the date when he is produced. ,
in the Court/competent Authority?
c (b) Whether the Act of 2000 will be applicable in a case
where a proceeding is initiated under the 1986 .Act
-
and was pending when the Act of 2000 was enforced
with effect from 1.4.2001?
22. While considering the first question, the Constitution
D Bench had occasion to consider the decision of the three Judge -'-
Bench in Umesh Chandra's case (supra), wherein it was held
that the relevant date for applicability of the Act so far as age of
the accused, who claims to be a child, is concerned, is the date
of occurrence and not the date of trial. Consequently, the decision
E in Amit Das's case (supra) was over-ruled and the view taken in
Umesh Chandra's case (supra) was declared to be the correct
law. On the second point, after considering the provisions of
Sections 3 and 20 of the Juvenile Justice Act, 2000, along with ..
the definition of"juvenile" in Section 2(k) of the Juvenile Justice
'
F . Act, 2000, as contrasted with the definition of a male juvenile in
Section 2(h) of the 1986Act, the majority view was that the 2000
Act would be applicable to a proceeding in any Court/Authority
initiated under the 1986 Act which is pending when the 2000
Act came into force and the person had not completed 18 years
of age as on 1.4.2001. In other words, a male offender, who
G
was being proceeded with in any Court/Authority initiated under ~.
the 1986 Act and had not completed the age of 18 years on
1.4.2001, would be governed by the provisions of Juvenile
Justice Act, 2000.
H 23. In his concurring judgment, S.B. Sinha, J., while
-'-i'
·.HARi RAM V. STATE OF RAJASTHAN & ANR
[ALTAMAS KABIR, J]
643
considering the provisions of Section 20 of the Juvenile Justice A
Act, 2000, observed that for the purpose of attracting Section
20 it had to be established that (i) on the date of coming into
force the proceedings in which the petitioner was accused was .
pending; and (ii) on that day he was below the age of 18 years.·
The unanimous view of the Cor:istitution Bench was that the B
provisions of the Juvenile Justice Act, 2000, have prospective
effect and not retrospective effect, except to cover cases where
though the male offender was above 16 years of age at the
"
time of commission of the offence, he was below 18 years of
age as on 1.4.2001. Consequently, the said Act would cover
.earlier cases only where a person had not completed the age
c
of 18 years on the date of its commencement and not otherwise.
24. The said decision in Pratap Singh's case (supra) led
to the substitution of Section 2(1) and the introduction of Section
7A of the Act and the subsequent introduction of Rule 12 in the D
Juvenile Justice Rules, 2007, and the amendment of Section
20 of the Act.
25. Read with Sections 2(k), 2(1), 7A and Rule 12, Section
20 of the Juvenile Justice Act, 2000, as amended in 2006, is
probably the Section most relevant in setting at rest the question E
raised in this appeal, as it deals with cases which were pending·
1
on 1" April, 2001, when the Juvenile Justice Act, 2000, came
into force. The same is, accordingly, reproduced hereinbelow :
1
~
"20. Special provision in respect of pending cases.-
Notwithstanding anything contained in this Act, all F
proceedings in respect of a·juvenile pending in any court
in any area on the date on which this Act comes into force
in that area, shall be continued in that court as if this Act
had not been passed and if the court finds that the juvenile
has committed an offence, it shall record such finding and G
,J
instead of passing any sentence in respect of the juvenile,.
forward the juvenile to the Board which shall pass orders
in respect of that juvenile in accordance with the provisions
of this Act as if it had been satisfied on inquiry under this
Act that a juvenile has committed the offence. H
·.·/
644 SUPREME COURT REPORTS [2009] 7 S.C.R.
'
A [Provided that the Board may, for any adequate and special
reason to be mentioned in the order, review the case and
pass appropriate order in the interest of such juvenile.
Explanation.- In all pending cases including trial, revision,
appeal or any other criminal proceedings in respect of a
B juvenile in conflict with law, in any court, the determination
of juvenility of such a juvenile shall be in terms of clause (1)
of section 2, even if the juvenile ceases to be so on or
before the date of commencement of thfs Act and the
provisions of this Act shall apply as if the said provisions
C had been in force, for all purposes and at all material
times when the alleged offence was committed.]"
D
26. The Proviso and the Explanation to Section 20 were
added by Amendment Act 33 of 2006, to set at rest any doubts
that may have arisen with regard to the applicability of the
Juvenile Justice Act, 2000, to cases pending on 1st April, 2001,
wtl~re a juvenile, who was below 18 years at the time of
-
commission of the offence, was involved. The Explanation which
was added in 2006, makes it very clear that in all pending cases,
which would include not only trials but even subsequent
E proceedings by way of revision or appeal, the determination of
juvenility of a juvenile would be in terms of Clause (I) of Section
2, even if the juvenile ceased to be a juvenile on or before 1st
April, 2001, when the Juvenile Justice Act, 2000, came into force,
and the provisions of the Act would apply as if the said provision •
F had been in force for all purposes and for all material times ·
when the alleged offence was committed. In fact, Section 20
enables the Court to consider and determine the juvenility of a
person even after conviction by the regular Court and also
empowers the Court, while maintaining the conviction, to set
G aside the sentence imposed and forward the case to the Juvenile
Justice Board concerned for passing sentence in accordance ) .
with the provisions of the Juvenile Justice Act, 2000.
27. At this point it may be noted that the decision of the
H Constitution Bench in Pratap Singh's case (supra) was rendered
HARi RAM V. STATE OF RAJASTHAN & ANR. 645
[ALTAMAS KABIR, J]
:"\ at a point of time when the amendments to Sections 2(1) and 20 A
--f
and the introduction of Section 7-A had not yetbeen effected,
- nor was Rule 12 of the 2007 Rules available. Several decisions
on the applicability of the 2000 Act to children who were above
16 but below 18 years on the date of commission of the offence
have been rendered after the Juvenile Justice Act, 2000, came B
into force and several others were rendered after the
., amendments were introduced in the said Act by Amendment
Act 33 of 2006 and the introduction of the 2007 Rules. The
j
decisions rendered by this Court and the High Courts prior to
1st April, 2001, when the Juvenile Justice Act, 2000, came into c
force and thereafter can, therefore, be divided into two groups.
The decision in Pratap Singh's case (supra) and in the case of
Munney@ Rahat Jan Khan vs. State of UP. [(2006) 12 SCC
697] fall into the first category, whereas the decisions in Jameel
vs. State of Maharashtra [(2007) 11 SCC 420], Vimal Chadha
D
J.. vs. Vikas Chaudhary [(2008) 8 SCALE 608], Babloo Pasi vs.
State of Jharkhand [(2008) 13 SCALE 137] and Ranjit Singh
vs. State of Haryana [(2008) 9 SCC 453] fall into the second
category. Although, the Constitution Bench decision in Pratap
Singh's case (supra) and Munney's case (supra) are not really
relevant since they have been rendered prior to 22nd August, E
· 2006, when the Amending Act 33 of 2006 came into force, they
assume a modicum 'of significance since they have been referred
to and relied upon even after the Amending Act and the 20_07
J Rules came into force on 22.8.2006 and 26.10.2007,
respectively. F
28. Of the decisions rendered after the amendments
effected in 2006 to the Juvenile Justice Act, 2000, the first
decision of note is that of Jameef's case (supra) rendered on
16.1.2007 wherein the amendments to the Act effected by the
G
Amendment Act 33 of 2006, which came into effect on
~~ 22.8.2006, were not even noticed. The next decision rendered
on 27.5.2008 is in the case of Vimal Chadha's case (supra),
wherein, although, the amendmentoftheAct and the introduction
of the Juvenile Justice Rules, 2007, were brought to the notice
H
646 SUPREME COURT REPORTS [2009] 7 S. C.R.
~
A of the Court, the same were not considered and the decision ....
was rendered in the light of the decision rendered in Pratap
Singh's case (supra) and other cases decided prior to 1.4.2001.
29. The next decision rendered on the same point on
11.9.2008 was the decision in Ranjit Singh's case (supra)
B wherein also the amendments to Section 2(1) and 20 and the
introduction of Section 7-A in the Juvenile Justice Act, 2000,
and the introduction of the 2007 Rules had not been considered
'
and the decision passed sub silentio.
·"
c 30. Similar was the situation in Babloo Pasi's case (supra)
decided on 3.10.2008 which basically dealt with Section 49 of
the Juvenile Justice Act, 2000 and Rule 22 of the Jharkhand
Juvenile Justice (Care and Protection of Children) Rules, 2003,
which is pari materia with Rule 12 of the 2007 Rules. While
deciding the said case, the Hon'ble Judges did not also have
D
occasion to consider the amendments effected to the Juvenile
Justice Act, 2000, by the Amendment Act 33 of 2006 which had
just come into force on 22.8.2006.
31. None of the aforesaid decisions are of much
E assistance in deciding the question with regard to the
applicability of the definition of "Juvenile" in Section 2(k) and
2(1) of the Juvenile Justice Act, 2000, .as ·amended in 2006,
whereby the provisions of the said Act were extended to cover
juveniles who had not comgleted 18 years of age on or before .
F the coming into force of the Juvenile Justice Act, 2000 on
1.4.2001 (Emphasis supplied). The effect of the proviso to
Section 7-A introduced by the Amending Act makes it clear that
the claim of juvenility may be raised before any Court which
shall be recognized at any stage, even after final disposal of the
case, and such claim shall be determined in terms of the
G
provisions contained in the Act and the Rules made thereunder
}
which includes the definition of "Juvenile" in Section 2(k) and
2(1) of the Act even if the Juvenile had ceased to be so on or
before(emphasis supplied) the date of commencement of the
Act. The said intention of the legislature was reinforced by the
H
HARi RAM V STATE OF RAJASTHAN & ANR 647
[ALTAMAS KABIR, J.]
amendment effected by the said Amending Act to Section 20 - A
by introduction of the Proviso and the Explanation thereto,
• wherein also it has been clearly i11dicated that in any pending
case in any Court the determination of juvenility of such a juvenile
has to be in terms of clause 2(1) even if the juvenile ceases to be
so "on or before the date of commencement of this Act" B
(emphasis supplied) anc:fit was also indicated that the provisions
_of the Act would apply as if the said provisions had been in
J._ force for all purposes and at all material times when the alleged
offence was committed.
32. Apart from the aforesaid provisions of the 2000 Act, C
as amended, and the Juvenile Justice Rules, 2007, Rule 98
thereof has to be read in tandem with Section 20 of the Juvenile
Justice Act, 2000, as amended by the Amendment Act, 2006,
which provides that even in disposed of cases of juveniles in
conflict with law, the State Government or the Board could, either D
suo motu or on an application made for the purpose, review
the case of a juvenile, determine the juvenility and pass an
appropriate order under Section 64 of the Act for the immediate
release of the juvenile whose period of detention had exceeded
the maximum period provided in Section 15 of the Act, i.e., 3 E
years.
33. In addition to the above, Section 49 of the Juven.iJe
Justice Act, 2000 is also of relevance and is reproduced
hereinbelow :
F
"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
child, the competent authority shall make due inquiry so G
, -I 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 may be.
(2) No·order of a competent authority shall be deemed to H
648 SUPREME COURT REPORTS [2009] 7 S.C.R.
A have become invalid merely by any subsequent proof that
the person in respect of whom the order has been made
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
B be the true age of that person."
34. Sub-Section (1) of Section 49 vests the Competent
•
Authority with power to make due inquiry as to the age of a
person brought before it and for the said purpose to take such
evidence as may be necessary (but not an affidavit) and shall
C record a finding as to whether the person is a juvenile or a child
or not, stating his age as nearly as may be. Sub-Section (2) is
of equal importance as it provides that no order of a Competent
Authority would be deemed to have become invalid merely on
account of any subsequent proof that the person, in respect of
D whom an order is made, is not a juvenile or a child, and the age
recorded by the Competent Authority to be the age of the person
brought before it, would, for the purpose of the Act, be deemed
to be the true age of a child or a juvenile in conflict with law. Sub-
Rule (3) of Rule 12 indicates that the age determination inquiry
E by the Court or Board, by seeking evidence, is to be derived
from:
(i) the matriculation or equivalent certificates, if available,
and in the absence of the same; ""
F (ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a Panchayat;
G
35. Sub-Clause (b) of Rule 12(3) provides that only in the
absence of any such document, would a medical opinion be
sought for from a duly cqnstituted Medical Board, which would
declare the age of the juvenile or the child. In case exact
assessment of the age cannot be done, the Court or the Board
H
HARi RAM V. STATE OF RAJASTHAN & ANR. 649
[ALTAMAS KABIR, J]
or as the case may be, the Child Welfare Committee, for A
"
-f
reasons to be recorded by it, may, if considered necessary, give
benefit to the child or juvenile by considering his/her age on the
lower side within a margin of one year.
36. As will, therefore, be clear from the provisions of the
Juvenile Justice Act, 2000, as amended by the Amendment Act, B
2006 and the Juvenile Justice Rules, 2007, the scheme of the
... Act is to give children, who have, for some reason or the other,
,(
gone astray, to realise their mistakes, rehabilitate themselves
and rebuild their lives and become useful citizens of society,
instead of degenerating into hardened criminals. c
37. Of the two main questions decided in Pratap Singh's
case (supra), one point is now well established that the juvenility
of a person in conflict with law has to be reckoned from the date
of the incident and not from the date on which cognizance was
0
.J..
taken by the Magistrate. The effect of the other part of the
decision was, however, neutralised by virtue of the amendments
to the Juvenile Justice Act, 2000, by Act 33 of 2006, whereunder
the provisions oftheAct were also made applicable to juveniles
who had not completed eighteen years of age on the date of
commission of the offence. The law as now crystallized on a E
conjoint reading of Sections 2(k), 2(1), 7A, 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
J 51
the offence even prior to 1 April, 2001, would be treated as
juveniles, even if the claim of juvenility was raised after they had F
attained the age of 18 years on or before the date of
commencement of the Act and were undergoing sentence upon
being convicted.
38. The instant case is covered by the amended provisions G
of Sections 2(k), 2(1), 7A and 20 of the Juvenile Justice Act,
4 2000. However, inasmuch as, the appellant was found to have
completed the age of 16 years and 13 days on the date of alleged
occurrence, the High Court was of the view that the provisions
of the Juvenile Justice Act, 1986, would not apply to the
H
650 SUPREME COURT REPORTS [2009] 7 S.C.R.
A appellant's case. Of course, the High Court, while deciding the
matter, did not have the benefit of either the amendment of the
Act or the introduction of the Juvenile Justice Rules, 2007. Even
otherwise, the matter was covered by the decision of this Court
in the case of Rajinder Chandra's case (supra), wherein this
s Court, inter a/ia, held that when a claim of juvenility is raised
and on the evidence available two views are possible, the Court
should lean in favour of holding the offender to be a juvenile in
borderline cases. In any event, the statutory provisions have
been <1ltered since then and we are now required to consider
c the question of the claim of the appellant that his date of birth
was Kartik Sudi 1, Samvat Year 2039, though no basis has been
provided for the fixation of the said date itself in the light of the
amended provisions. Often, parents 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 may have taken
0
place simultaneously. In such a situation, the Board and the
Courts will have to take recourse to the procedure laid down in
Rule 12, but such an exercise is not required to be undertaken
in the present case since even according to the determination
E of the appellant's age by the High Court the appellant was below
eighteen years of age when the offence was alleged to have
been committed.
39. Having regard to the views expressed hereinabove,
we are unable to sustain the impugned order of the High Court
F in holding that the provisions of the Juvenile Justice Act, 1986,
would not be applicable to the appellant's case since he was
allegedly 13 days above the age prescribed.
40. In the instant case, the appellant was arrested on
30.11.1998 when the 1986 Act was in force and under Clause
G (h) of Section 2 a juvenile was described to mean a child who
had not attained the age of sixteen years or a girl who had not
attained the age of eighteen years. It is with the enactment of
the Juvenile Justice Act, 2000, that in Section 2(k) a juvenile or
child was defined to mean a child who had not completed
H eighteen years of age which was given prospective prospect.
HARi RAM V STATE OF RAJASTHAN & ANR. 651
[ALTAMAS KABIR, J.]
) However, as indicated hereinbefore after the decision in Pratap A
Singh's case (supra), Section 2(1) was amended to define a
juvenile in conflict with law to mean a juvenile who is alleged to
have committed an offence and has not completed eighteen
years of age as on the date of commission of such offence;
Section 7A was introduced in the 2000 Act and Section 20 B
thereof was amended whereas Rule 12 was included in the
~ Juvenile Justice Rules, 2007, which gave retrospective effect
~.
to the provisions of the Juvenile Justice Act, 2000. Section 7A
of the Juvenile Justice Act, 2000, made provision for the claim
• of juvenility to be raised before any Court at any stage, as has c
been done in this case, and such claim was required to be
determined in terms of the provisions contained in the 2000 Act
and the Rules framed thereunder, even if the juvenile had ceased
to be so on or before the date of commencement of the Act.
Accordingly, a juvenile who had not completed eighteen years
D
on the date of commission of the offence was also entitled to
the benefits of the Juvenile Justice Act, 2000, as if the provisions
of Section 2(k) had always been in existence even during the
operation of the 1986 Act.
41. The said position was re-emphasised by virtue of the E
amendments introduced in Section 20 of the 2000Act, whereby
the Proviso and Explanation were added to Section 20, which
made it even more explicit that in all pending cases, including
4 trial, revision, appeal and any other criminal proceedings in
respect of a juvenile in conflict with law, the determination of F
juvenility of such a juvenile would be in terms of clause (I) of
Section 2 of the 2000 Act, and the provisions of the Act would
apply as if the said provisions had been in force when the alleged
offence was committed.
42. In the instant case, there is no controversy that the G
.>~ appellant was about sixteen years of age on the date of
commission of the alleged offence and had not completed
eighteen years of age. In view of Sections 2(k), 2(1) and 7A read
with Section 20 of the said Act, the provisions thereof would
apply to the appellant's case and on the date of the alleged H
652 SUPREME COURT REPORTS [2009] 7 S.C.R.
A incident it has to be held that he was ajuvenile.
•'r-
43. The appeal has, therefore, to be allowed on the ground
that notwithstanding the definition of "juvenile" under the Juvenile
Justice Act, 1986, the appellant is covered by the definition of
"juvenile" in Section 2(k) and the definition of"juvenile in conflict
)3 with law" in Section 2(1) of the Juvenile Jusiice Act, 2000, as
amended.
r
44. We, therefore, allow the appeal and set aside the order
>
passed by the High Court and in keeping with the provisions of
Sections 2(k), 2(1),7A and 20 of the Juvenile Justice Act, 2000 ..,_.
c
and Rules 12 and 98 of the Juvenile Justice Rules, 2007, hold
that since the appellant was below 18 years of age at the time
of commission of the offence the provisions of the said Act would
apply in his case in full force.
D 45. The matter is accordingly remitted to the Juvenile
Justice Board, Ajmer, for disposal in accordance with law, within
three months from the date of receipt of a copy of this order,
having regard to the fact that the offence is alleged to have been
committed more than ten years ago. If, however, the appellant
E has been in detention for a period which is more than the
maximum period for which a juvenile may be confined to a
Special Home, the Board shall release the appellant from
custody forthwith.
•
K.K.T. Appeal allowed.
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