Supreme Court of India
OM PRAKASH @ ISRAEL @ RAJU @ RAJU DASversusUNION OF INDIA AND ANOTHER
- Citation
- 2025 INSC 43
- Decided
- 7 January 2025
- Disposal
- Appeal(s) allowed
- Bench
- M M SUNDRESH
Holding
A plea of juvenility under s.9(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 can be entertained at any stage, and where the appellant was a minor, the death sentence exceeds the statutory limit and must be set aside while the conviction stands.
Summary
The appellant, convicted of culpable homicide amounting to murder for a 1994 incident, claimed he was a minor at the time of the offence, asserting a plea of juvenility under s.9(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Despite earlier courts treating him as an adult based on a bank‑account statement, medical and school documents later established his age as 14 at the time of the crime. The Supreme Court examined whether a juvenility plea can be raised after final disposal and after a presidential clemency order, and whether procedural requirements under the 2007 Rules and earlier Acts were complied with. It held that the plea must be entertained at any stage, that the procedural safeguards were ignored, and that the death sentence exceeded the statutory ceiling for a juvenile. Consequently, the Court set aside the death sentence, upheld the conviction, and ordered the appellant’s release, directing welfare authorities to facilitate his rehabilitation.
Issues considered
- Can a plea of juvenility under s.9(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 be raised and adjudicated after the final disposal of the case and after the exercise of the President’s clemency power?
- Did the trial and appellate courts comply with the procedural mandates of the Juvenile Justice Acts and the 2007 Rules in determining the appellant’s age?
- Does the death sentence imposed on a person who was a minor at the time of the offence exceed the upper limit prescribed under the 2015 Act and therefore require setting aside?
- Was the earlier reliance on the appellant’s statement regarding a bank account and his age at the time of recording a valid basis for treating him as an adult?
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Constitution of Indias. 136, s. 14, s. 15(3), s. 21, s. 226, s. 32, s. 39(e), s. 39(f), s. 45, s. 47, s. 72
- Juvenile Justice Act, 1986s. 32
- Juvenile Justice (Care and Protection of Children) Act, 2000s. 20, s. 7A
- Juvenile Justice (Care and Protection of Children) Act, 2015s. 9(2), s. 94(2)
- Juvenile Justice (Care and Protection of Children) Rules, 2007s. 12, s. 12(3)
- Right to Information Act, 2005
Subjects
Plea of juvenilitySpecial homesJuvenilityBirth certificate issued by SchoolReview PetitionMercy Petition before the GovernorMercy Petition before Hon’ble the President of IndiaOssification testMedical Age CertificatePresidential OrderDeath sentenceLife imprisonmentCurative PetitionExecutive orderSocial welfare legislationState Legal Services AuthorityRehabilitation and reintegration into the society upon releaseRight to livelihood, shelter and sustenance guaranteed u/Art.21Justice delivery systemConcept of truthDuty of CourtProcedural lawSubstantive lawJudicial systemJuvenile justiceRights of juvenileRole of juvenile courtsRole of Constitutional CourtsDeviant behaviour of a childInequalityEnvironmentPlea of juvenility vis-à-vis final disposalEven after the final disposal of the caseDetermination of ageHierarchy of documentsMatriculation certificateBirth certificate from schoolBirth certificate by local authorityJuvenility as an admitted factRules of EvidenceMaximActus curiae neminem gravabitPower of the President to grant pardonPower of the Governor to grant pardonPresidential orderJudicial reviewUnited Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoption, 1993
Judgment
[2025] 1 S.C.R. 362 : 2025 INSC 43
Om Prakash @ Israel @ Raju @ Raju Das
v.
Union of India and Another
(Criminal Appeal No. 4229 of 2024)
08 January 2025
[M.M. Sundresh* and Aravind Kumar, JJ.]
Issue for Consideration
Issue arose as regards plea of juvenility raised u/s.9(2) of the
Juvenile Justice (Care and Protection of Children) Act, 2015.
Headnotes†
Juvenile Justice (Care and Protection of Children) Act, 2015 –
s.9(2) – Plea of juvenility – Appellant charged for the offence of
culpable homicide amounting to murder, for incident occurred
in 1994 – On recording of statements in 2001, the appellant
stated his age as 20 years – After conviction, the appellant
raised the plea of juvenility during the hearing on sentence
that he was around 17 years at the time of occurrence –
Trial court, relying upon his statement regarding the bank
account, presumed that he was major and sentenced him to
death – Upheld by the High Court as also Supreme Court –
Review Petition thereagainst also dismissed – Mercy Petition
before the Governor also rejected – Thereafter, Writ Petition
u/Art.32 as also Curative Petition dismissed – Mercy Petition
filed before Hon’ble the President of India – During the
pendency, 2007 Rules came into effect – Ossification test done
and the Medical Age Certificate indicated that the appellant
was aged around 14 years at the time of the occurrence – By
Presidential Order, death sentence of the appellant commuted
to life imprisonment, with caveat that he shall not be released
until the attainment of 60 years of age – Subsequent Curative
Petition rejected – Appellant then filed Writ Petition before the
High Court challenging the Presidential Order and also for
seeking relief u/s.9(2) – Writ Petition dismissed holding that
the power of judicial review over an executive order passed
in exercise of Art. 72 is limited, and the proceedings against
the appellant had attained finality – Challenge to:
* Author
[2025] 1 S.C.R. 363
Om Prakash @ Israel @ Raju @ Raju Das v.
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Held: No dispute that the appellant was only 14 years old at
the time of the commission of the offence – At every stage,
injustice has been inflicted by the Courts, either by ignoring the
documents or by casting a furtive glance – Appellant, despite
being illiterate, raised this plea one way or another, right from the
trial court up to the conclusion of the Curative Petition before this
Court – Approach of the Courts in the earlier round of litigation
cannot be sustained in the eye of law – Statement given by the
appellant at the time of the hearing on his sentence, also pale
into insignificance, as even then he would have been a minor at
the time of commission of the offence, under both the 2000 and
the 2015 Acts – Procedural mandate contemplated under the
1986 Act not followed by the courts below – Curative petition
dismissed without according any reason – Even the then existing
State Rules not duly followed – When the plea of juvenility was
raised, it should have been dealt with under the existing laws at
the relevant point of time, especially when there exists a tacit
and clear admission as to the age of the appellant – This Court
could have dealt with the writ petition filed u/Art.32, as it raised
independent prayer for the enforcement of a right conferred under
a social welfare legislation – In the subsequent writ petition filed
before the High Court, two different prayer made, the determination
of the appellant’s plea of juvenility and consequent release, or
alternatively judicial review of the decision of the President or
the Governor and consequent release – Executive cannot be
construed to have undertaken an adjudication on the determination
of the age of the accused and first prayer being a distinct one
invoking s.9(2), the High Court erred in its reasoning – Appellant
has been suffering due to the error committed by the Courts –
His conduct in the prison is normal, with no adverse report – He
lost an opportunity to reintegrate into the society – Time which
he has lost, for no fault of his, can never be restored – Thus,
the sentence imposed in excess of the upper limit prescribed
under the relevant Act set aside, while maintaining the conviction
rendered – It is not a review of the Presidential Order, but a case
of giving the benefit of the provisions of the 2015 Act – State Legal
Services Authority to identify welfare scheme of the State/Central
Government, facilitating the appellant’s rehabilitation and smooth
reintegration into the society upon his release, with emphasis
on his right to livelihood, shelter and sustenance guaranteed
u/Art.21. [Paras 44-54]
364 [2025] 1 S.C.R.
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Justice delivery system – Concept of truth – Duty of Court –
Explanation:
Held: Justice is nothing but a manifestation of the truth, which
transcends every other action – Primary duty of the Court is to make
a single-minded endeavour to unearth the truth hidden beneath
the facts – Court is a search engine of truth, with procedural and
substantive laws as its tools – When procedural law stands in the
way of the truth, the Court must find a way to circumvent it – When
substantive law does not facilitate the emergence of the truth, it
is the paramount duty of the Court to interpret the law in light of
its teleos – Such exercise warranted in a higher degree, while
considering a social welfare legislation – Court must discern the
truth, primarily from the material available on record in the form of
pleadings, and arguments duly supported by documents – Entire
judicial system meant for the discovery of the truth, it being the
soul of a decision – Presiding Officer expected to play an active
role, rather than a passive one. [Paras 4-6]
Juvenility – Juvenile justice – Rights of juvenile – Role of
juvenile courts and Constitutional Courts:
Held: Deviant behaviour of a child in conflict with law should
be a concern of the society as a whole – Child not responsible
for an act of crime, but rather victimized by it – Behaviour of a
child can be attributed to environment, the child grows in, and
genetics – Remedial measures may be employed for the benefit
of the child since the child does not choose the environment in
which it grows, deviant behaviour which is a result of exposure to
a given environment is evidence of rampant inequality – Thus, a
child who lives in a discriminatory environment, requires equitable
treatment on the touchstone of Arts. 14, 15(3) rw Art. 39 (e) and (f),
Arts. 45 and 47 – Court expected to play the role of parens patriae
by treating a child not as a delinquent, but as a victim, viewed
through the lens of reformation, rehabilitation and reintegration into
the society – Juvenile Court is a species of a parent – Delinquent,
who appears before the Court, is to be protected and re-educated,
rather than be judged and punished – Court to press into service
the benevolent provisions for rehabilitation introduced by the
Legislature – Juvenile Court assumes the role of an institution
rendering psychological services – Juvenile Court must don the
robes of a correction home for a deviant child – Furthermore,
since the need for taking care of a juvenile in conflict with law is
[2025] 1 S.C.R. 365
Om Prakash @ Israel @ Raju @ Raju Das v.
Union of India and Another
mandated by the Constitution, the role of the constitutional Courts
is significant – Even after the dismissal of a Special Leave Petition/
Statutory Criminal Appeal followed by incidental proceedings before
Supreme Court, where the plea of juvenility was not consciously
considered, there would be no bar on the constitutional Courts
to consciously take a deeper look – It is not an exercise of the
powers conferred u/Arts 32, 136 or 226, but an act in fulfilment of
a mandated duty enjoined upon the Courts, to give effect to the
laudable objective of a social welfare legislation – Constitution of
India, 1950 – Arts. 14, 15(3), 39(e), 39(f), 45, 47. [Paras 8-11, 23]
Juvenile Justice (Care And Protection Of Children) Act,
2015 – s.9(2) – Special homes – Plea of juvenility vis-à-vis
final disposal – Words “even after the final disposal of the
case” in s.9(2) – Significance:
Held: s. 9(2) being the heart and soul of the entire Act, must
be given its fullest meaning and interpretation – If the offence
is committed by a child, it cannot be treated otherwise than as
provided under the 2015 Act – After finding out the truth, necessary
consequences must follow – Sufficient opportunities must be given
to the child in conflict with law to get the benefit of the 2015 Act –
Merely because a casual adjudication has taken place does not
mean that a plea of juvenility cannot be raised subsequently – So
long as the right of a party subsists, one can never say that finality
has been attained – In a case where a plea has been raised, but
not adjudicated upon, the decision rendered thereunder would not
amount to attaining finality – In a case where the plea was not
treated as an application u/s.9(2) and, the procedure mandated
thereunder was not followed, the principle stated would apply as
right of raising the plea of juvenility has not ceased and, thus,
subsists. [Paras 21-22]
Juvenile Justice (Care and Protection of Children) Rules,
2007 – r.12, 12(3) – Procedure to be followed in determination
of age – Hierarchy of documents:
Held: While there is no difficulty in the application of the principal
Act inclusive of the procedural part, even for a juvenile in conflict
with law who has attained majority on or after 2001, r.12 must
be applied retrospectively even to those cases, especially where
no exercise was undertaken under any of the State Rules or the
erstwhile Acts, on earlier occasions – Sub-rule (3) of r.12 is a rule
366 [2025] 1 S.C.R.
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of evidence, which merely provides a hierarchy of documents in
the order of priority, to be taken note of and considered while
determining the age of a juvenile in conflict with law, in an ongoing
inquiry – Where a matriculation certificate is very much available,
a date of birth certificate from the school or a birth certificate given
by a local authority shall never be looked into – Only if none of the
said documents is available, can one go for a medical opinion – It
should not be misunderstood that even in those cases where due
inquiry was undertaken under the erstwhile enactments and the
relevant rules, one can seek a fresh inquiry u/r.12. [Paras 24-25]
Juvenility – Juvenility as an admitted fact – Rules of Evidence:
Held: Admission is a rule of evidence, it is a relevant fact – It
becomes relevant qua a fact in issue – When an admission is clear,
unambiguous, continuous and unequivocal, it becomes the best
form of evidence, and transforms itself into fact in issue – When
a party makes an admission, either by way of oral statement or
acknowledging a document authored by them, the Court must
proceed on that basis – Resultant relief, which is axiomatic, cannot
be denied on anvil of procedural law – Any contra view would
result in grave injustice – On an issue where there is no dispute,
denying a rightful relief would be an affront to fair play and justice –
However, the Court cannot construe a statement as an admission
and proceed on that basis – There is a subtle difference between
an unequivocal admission as against a statement which could be
construed to be so – Former can be the basis for a relief, latter
meant for adjudication vis-a-vis the facts of the case. [Para 27]
Maxim – Actus curiae neminem gravabit – Meaning:
Held: No one shall be prejudiced by an act of the Court – Mistake
committed by the Court cannot stand in the way of one’s rightful
benefit – It is not the party which commits a mistake, but rather the
Court itself – Such a mistake cannot act as a barrier for the party
to get its due relief – However, mistake must be so apparent that it
does not brook any adjudication on the foundational facts. [Para 28]
Constitution of India – Arts. 72, 161 – Power of the President
and the Governor to grant pardon – Presidential order –
Judicial review:
Held: Power of pardon u/Art.72 and 161 is sovereign – It is power
of compassion and empathy, meant to remove or reduce all pains,
[2025] 1 S.C.R. 367
Om Prakash @ Israel @ Raju @ Raju Das v.
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penalties and punishment suffered by a convict – Exercise of
this sovereign power by either the State or the Centre, is a final
grace given under the Constitution for the convict to reintegrate
into the society – Power u/Art.72 and 161 is not appellate or
revisional in nature, it is an executive power travelling on a
different channel – Challenge to the exercise of power u/Arts. 72
and 161 would involve limited judicial review – Courts will have
to exercise adequate caution and circumspection while dealing
with an executive order passed in exercise of the power conferred
u/Arts. 72 or 161 – When challenge is made to executive order,
with an independent prayer for exercising the power u/s.9(2),
they being distinct and independent, refusal of judicial review of
the former will not obliterate the mandatory duty pertaining to the
latter. [Paras 29-32]
Case Law Cited
Jasraj Inder Singh v. Hemraj Multanchand [1977] 2 SCR 973 :
(1977) 2 SCC 155; Mohan Singh v. State of M.P. [1999] 1
SCR 276 : (1999) 2 SCC 428; Shanmugam v. Ariya Kshatriya
Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam
[2012] 4 SCR 74 : (2012) 6 SCC 430; Maria Margarida Sequeria
Fernandes v. Erasmo Jack De Sequeira [2012] 3 SCR 841 :
(2012) 5 SCC 370; Sugandhi v. P. Rajkumar (2020) 10 SCC 706;
Munna Pandey v. State of Bihar [2023] 11 SCR 1005 : 2023 SCC
OnLine SC 1103; Aruna Ramachandra Shanbaug v. Union of India
[2011] 4 SCR 1057 : (2011) 4 SCC 454; Pratap Singh v. State of
Jharkhand [2005] 1 SCR 1019 : (2005) 3 SCC 551; Jethanand
and Sons v. State of Uttar Pradesh [1961] 3 SCR 754 : 1961
SCC OnLine SC 193 : AIR 1961 SC 794; Mohan Lal Magan Lal
Thacker v. State of Gujarat [1968] 2 SCR 685 : 1967 SCC OnLine
SC 137 : AIR 1968 SC 733; Lily Thomas v. Union of India [2000]
3 SCR 1081 : (2000) 6 SCC 224; A.R. Antulay v. R.S. Nayak
[1988] Supp. 1 SCR 1 : (1988) 2 SCC 602; Kehar Singh v. Union
of India [1988] Supp. 3 SCR 1102 : (1989) 1 SCC 204; State
of Haryana v. Jagdish [2010] 3 SCR 716 : (2010) 4 SCC 216;
Shatrughan Chauhan v. Union of India [2014] 1 SCR 609 : (2014)
3 SCC 1; Ram Narain v. State of Uttar Pradesh [2015] 9 SCR
200 : (2015) 17 SCC 699; Hari Dutt Sharma v. The State of Uttar
Pradesh, Order of the Supreme Court dated 07.02.2022 in Writ
Petition (Crl.) 367 of 2021; Hari Ram v. State of Rajasthan [2009]
7 SCR 623 : (2009) 13 SCC 211; Abdul Razzaq v. State of Uttar
Pradesh (2015) 15 SCC 637; T Barai v. Henry Ah Hoe and Another
368 [2025] 1 S.C.R.
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[1983] 1 SCR 905 : (1983) 1 SCC 177; Ram Deo Chauhan v.
Bani Kanta Das [2010] 15 SCR 957 : (2010) 14 SCC 209; Vinay
Sharma v. Union of India [2020] 10 SCR 393 : (2020) 4 SCC 391;
Pawan Kumar Gupta v. State (NCT of Delhi) [2020] 4 SCR 1055 :
(2021) 13 SCC 249 – referred to.
United Australia Limited v. Barclay’s Bank Ltd [1941] A.C. 1 –
referred to.
List of Acts
Constitution of India; Juvenile Justice Act, 1986 (Act No. 53 of
1986); Juvenile Justice (Care and Protection of Children) Act, 2000
(Act No. 56 of 2000); Juvenile Justice (Care and Protection of
Children) Act, 2015 (Act No. 2 of 2016); Juvenile Justice (Care and
Protection of Children) Rules, 2007; Code of Criminal Procedure,
1973; Right to Information Act, 2005.
List of Keywords
Plea of juvenility; Special homes; Juvenility; Birth certificate issued
by School; Review Petition; Mercy Petition before the Governor;
Mercy Petition before Hon’ble the President of India; Ossification
test; Medical Age Certificate; Presidential Order; Death sentence;
Life imprisonment; Curative Petition; Executive order; Social
welfare legislation; State Legal Services Authority; Rehabilitation
and reintegration into the society upon release; Right to livelihood,
shelter and sustenance guaranteed u/Art.21; Justice delivery system;
Concept of truth; Duty of Court; Procedural law; Substantive law;
Judicial system; Juvenile justice; Rights of juvenile; Role of juvenile
courts; Role of Constitutional Courts; Deviant behaviour of a child;
Inequality; Environment; Plea of juvenility vis-à-vis final disposal;
Even after the final disposal of the case; Determination of age;
Hierarchy of documents; Matriculation certificate; Birth certificate
from school; Birth certificate by local authority; Juvenility as an
admitted fact; Rules of Evidence; Maxim; Actus curiae neminem
gravabit; Power of the President to grant pardon; Power of the
Governor to grant pardon; Presidential order; Judicial review; United
Nations Standard Minimum Rules for the Administration of Juvenile
Justice, 1985; United Nations Rules for the Protection of Juveniles
Deprived of their Liberty, 1990; Hague Convention on Protection of
Children and Cooperation in respect of Intercountry Adoption, 1993.
[2025] 1 S.C.R. 369
Om Prakash @ Israel @ Raju @ Raju Das v.
Union of India and Another
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
4229 of 2024
From the Judgment and Order dated 23.08.2019 of the High Court
of Uttarakhand at Nainital in WPCRL No. 1531 of 2017
Appearances for Parties
Dr. S. Muralidhar, Sr. Adv., Prateek K Chadha, Ms. Ninni Susan
Thomas, M.A. Karthik, Maitreya Subramaniam, Ms. Pallak Bhagat,
Yash S Vijay, Ms. Sakshi Jain, Ms. Pooja B Mehta, Sreekar Aechuri,
Aniket Chauhaan, Arjun Nayyar, Advs. for the Appellant.
K M Nataraj, A.S.G., Shailesh Madiyal, Sr. Adv., Digvijay Dam,
Raghav Sharma, Ms. Mrinal Elker Mazumdar, Vinayak Sharma,
Arvind Kumar Sharma, Ms. Vanshaja Shukla, Ms. Ankeeta Appanna,
Ms. Rachna Gandhi, Siddhant Yadav, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
M. M. Sundresh, J.
1. Heard the Learned Senior Counsel Dr. S. Muralidhar for the Appellant,
and Learned Additional Solicitor General Mr. K.M. Nataraj and Learned
Counsel Ms. Vanshaja Shukla for the Respondents. We have also
carefully perused the written arguments along with the documents,
filed by both the sides in respect of their respective contentions.
2. We are dealing with a case where grave injustice has been
perpetrated, on account of the consistent failure on part of the judicial
machinery to recognise and act upon the constitutional mandate vis-
a-vis the plea of juvenility. Lord Atkin’s words of wisdom in United
Australia Limited v. Barclay’s Bank Ltd., [1941] A.C. 1 at p.29
become relevant in the aforementioned context:
“…When these ghosts of the past stand in the
path of justice clanking their medieval chains the
proper course for the judge is to pass through them
undeterred.”
(emphasis supplied)
370 [2025] 1 S.C.R.
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3. We are further reminded of the words of V.R. Krishna Iyer J., on the
laudable ideals of truth and justice in Jasraj Inder Singh v. Hemraj
Multanchand (1977) 2 SCC 155:-
“8. ...Truth, like song, is whole and half-truth can be
noise; Justice is truth, is beauty and the strategy of
healing injustice is discovery of the whole truth and
harmonising human relations. Law’s finest hour is
not in meditating on abstractions but in being the
delivery agent of full fairness. This divagation is
justified by the need to remind ourselves that the
grammar of justice according to law is not little
litigative solution….”
(emphasis supplied)
TRUTH AND THE COURT
4. Justice is nothing but a manifestation of the truth. It is truth which
transcends every other action. The primary duty of a Court is to make
a single-minded endeavour to unearth the truth hidden beneath the
facts. Thus, the Court is a search engine of truth, with procedural
and substantive laws as its tools.
5. When procedural law stands in the way of the truth, the Court must
find a way to circumvent it. Similarly, when substantive law, as it
appears, does not facilitate the emergence of the truth, it is the
paramount duty of the Court to interpret the law in light of its teleos.
Such an exercise is warranted in a higher degree, particularly while
considering a social welfare legislation.
6. In its journey, the Court must discern the truth, primarily from the
material available on record in the form of pleadings, and arguments
duly supported by documents. It must be kept in mind that the entire
judicial system is meant for the discovery of the truth, it being the
soul of a decision. For doing so, a Presiding Officer is expected to
play an active role, rather than a passive one.
7. We shall now place on record the views expressed and judgments
rendered on the concept of truth. Justice V.R. Krishna Iyer, at the 18th
Annual Conference of the American Judges Association at Seattle,
Washington State. (1979) 1 SCC J-7, stated thus-
[2025] 1 S.C.R. 371
Om Prakash @ Israel @ Raju @ Raju Das v.
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“Our profession is totally committed to Justice—
individual, social and spiritual. Truth, holistic truth,
is the basis of Justice and thus the great question
of history, What is Justice, is also the perennial
interrogation, What is Truth? Once we awaken to this
profound core, our attitude to pathological crime and
therapeutic punishment, to inner harmony and societal
peace, will be transformed into a high pursuit of truth
beyond “the madding crowd’s ignoble strife.”…
xxx xxx xxx
…The progressive manifestation of the divinity in man
is the recognition of the dignity and worth of the human
person and this curative process is the healing hope of
decriminalization—not stone walls nor iron bars nor other
subtle barbarities. This know-how of humanization alone
can dissolve the dilemma.”
(emphasis supplied)
Mohan Singh v. State of M.P. (1999) 2 SCC 428
“11. …Efforts should be made to find the truth, this is
the very object for which courts are created. To search
it out, the courts have been removing the chaff from
the grain. It has to disperse the suspicious cloud and
dust out the smear of dust as all these things clog the
very truth. So long as chaff, cloud and dust remain,
the criminals are clothed with this protective layer to
receive the benefit of doubt. So it is a solemn duty of
the courts, not to merely conclude and leave the case
the moment suspicions are created. It is the onerous
duty of the court, within permissible limit, to find out
the truth.…”
(emphasis supplied)
Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya
Nandhavana Paripalanai Sangam (2012) 6 SCC 430
“Entire journey of a Judge is to discern the truth
24. The entire journey of a Judge is to discern the
truth from the pleadings, documents and arguments
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of the parties. Truth is the basis of the justice delivery
system….”
(emphasis supplied)
Maria Margarida Sequeria Fernandes v. Erasmo Jack De
Sequeira (2012) 5 SCC 370
“33. The truth should be the guiding star in the entire
judicial process. Truth alone has to be the foundation
of justice. The entire judicial system has been created
only to discern and find out the real truth. Judges at
all levels have to seriously engage themselves in the
journey of discovering the truth. That is their mandate,
obligation and bounden duty. Justice system will
acquire credibility only when people will be convinced
that justice is based on the foundation of the truth.
xxx xxx xxx
44. Malimath Committee on Judicial Reforms heavily
relied on the fact that in discovering truth, the Judges
of all courts need to play an active role. The Committee
observed thus:
‘2.2. … In the adversarial system truth is supposed
to emerge from the respective versions of the facts
presented by the prosecution and the defence before
a neutral Judge. The Judge acts like an umpire to see
whether the prosecution has been able to prove the
case beyond reasonable doubt….
xxx xxx xxx
…The Judge in his anxiety to maintain his position of
neutrality never takes any initiative to discover truth.
He does not correct the aberrations in the investigation
or in the matter of production of evidence before court.
xxx xxx xxx
2.15. The adversarial system lacks dynamism because it
has no lofty ideal to inspire. It has not been entrusted with a
positive duty to discover truth as in the inquisitorial system.
When the investigation is perfunctory or ineffective,
[2025] 1 S.C.R. 373
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Judges seldom take any initiative to remedy the
situation. During the trial, the Judge does not bother if
relevant evidence is not produced and plays a passive
role as if he has no duty to search for truth….
xxx xxx xxx
2.16.9. Truth being the cherished ideal and ethos of
India, pursuit of truth should be the guiding star of the
criminal justice system. For justice to be done truth
must prevail. It is truth that must protect the innocent
and it is truth that must be the basis to punish the
guilty. Truth is the very soul of justice. Therefore,
truth should become the ideal to inspire the courts to
pursue. This can be achieved by statutorily mandating
the courts to become active seekers of truth. It is of
seminal importance to inject vitality into our system
if we have to regain the lost confidence of the people.
Concern for and duty to seek truth should not become
the limited concern of the courts. It should become
the paramount duty of everyone to assist the court
in its quest for truth.”
(emphasis supplied)
Sugandhi v. P. Rajkumar (2020) 10 SCC 706
“9. It is often said that procedure is the handmaid of
justice. Procedural and technical hurdles shall not be
allowed to come in the way of the court while doing
substantial justice. If the procedural violation does
not seriously cause prejudice to the adversary party,
courts must lean towards doing substantial justice
rather than relying upon procedural and technical
violation. We should not forget the fact that litigation
is nothing but a journey towards truth which is the
foundation of justice and the court is required to take
appropriate steps to thrash out the underlying truth in
every dispute. Therefore, the court should take a lenient
view when an application is made for production of the
documents under sub-rule (3).”
(emphasis supplied)
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Munna Pandey v. State of Bihar, 2023 SCC OnLine SC 1103
“68. The role of a judge in dispensation of justice after
ascertaining the true facts no doubt is very difficult one.
In the pious process of unravelling the truth so as
to achieve the ultimate goal of dispensing justice
between the parties the judge cannot keep himself
unconcerned and oblivious to the various happenings
taking place during the progress of trial of any case.
No doubt he has to remain very vigilant, cautious,
fair and impartial, and not to give even a slightest of
impression that he is biased or prejudiced either due
to his own personal convictions or views in favour of
one or the other party. This, however, would not mean
that the Judge will simply shut his own eyes and be
a mute spectator, acting like a robot or a recording
machine to just deliver what stands feeded by the
parties.
xxx xxx xxx
70. This Court has condemned the passive role played
by the Judges and emphasized the importance and
legal duty of a Judge to take an active role in the
proceedings in order to find the truth to administer
justice and to prevent the truth from becoming a
casualty….”
(emphasis supplied)
JUVENILE JUSTICE
8. A child is a product of the present, in need of being moulded, to
thrive in the future. Therefore, deviant behaviour of a child in conflict
with law should be a concern of the society as a whole. One must
not lose sight of the fact that the child is not responsible for an act
of crime, but is rather victimized by it. Such a child is nothing but
an inheritor of crime, a legacy which it does not wish to imbibe. The
behaviour of a child can be attributed, possibly to two counts, namely,
the environment that the child grows in, and genetics. On the second
count, there is abundant research and literature available. However,
we do not wish to venture much into this, particularly in light of the
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innumerable permutations and combinations that could arise out of
the interaction between these two counts.
9. On the first count, various factors such as socio-economic, political
and cultural background, and life experience, amongst others, become
relevant. Thus, remedial measures may be employed for the benefit
of the child. Since the child does not choose the environment in
which it grows, deviant behaviour which is a result of exposure to
a given environment is evidence of rampant inequality. Therefore,
a child who lives in such a discriminatory environment, requires
equitable treatment on the touchstone of Article 14 of the Constitution
of India, 1950 (hereinafter referred to as “the Constitution”).
Article 15(3) read with Article 39 (e) and (f), Article 45 and Article 47
of the Constitution, in the form of the Fundamental Rights and the
Directive Principles of State Policy, emphasise on the need for special
care for children. The relevant provisions in the Constitution which
form the foundation of juvenile justice are as under:
Article 15 of the Constitution
“15. Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth.—
xxx xxx xxx
(3) Nothing in this article shall prevent the State from
making any special provision for women and children.”
(emphasis supplied)
Article 39 of the Constitution
“39. Certain principles of policy to be followed by
the State.—The State shall, in particular, direct its policy
towards securing—
(a) that the citizens, men and women equally, have the
right to an adequate means to livelihood;
(b) that the ownership and control of the material resources
of the community are so distributed as best to subserve
the common good;
(c) that the operation of the economic system does
not result in the concentration of wealth and means of
production to the common detriment;
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(d) that there is equal pay for equal work for both men
and women;
(e) that the health and strength of workers, men and
women, and the tender age of children are not abused
and that citizens are not forced by economic necessity
to enter avocations unsuited to their age or strength;
(f) 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.”
(emphasis supplied)
Article 45 of the Constitution
“45. Provision for early childhood care and education
to children below the age of six years.—The State
shall endeavour to provide early childhood care and
education for all children until they complete the age
of six years.”
(emphasis supplied)
10. In view of the said constitutional mandate, the Court is expected to
play the role of parens patriae by treating a child not as a delinquent,
but as a victim, viewed through the lens of reformation, rehabilitation
and reintegration into the society.
11. Thus, a Juvenile Court is a species of a parent. A delinquent, who
appears before the Court, is to be protected and re-educated, rather
than be judged and punished. It is for this purpose, that the Court will
have to press into service the benevolent provisions for rehabilitation
introduced by the Legislature. A Juvenile Court assumes the role of
an institution rendering psychological services. It must forget that it
is acting as a Court, and must don the robes of a correction home
for a deviant child. In Aruna Ramachandra Shanbaug v. Union of
India (2011) 4 SCC 454, this Court recognised the need for Courts
to assume the role of parens patriae and stated thus:
“86. …As stated by Balcombe, J. in J. (A Minor ) (Wardship:
Medical Treatment), In re [(1990) 3 All ER 930 (CA)],
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the Court as representative of the Sovereign as
parens patriae will adopt the same standard which
a reasonable and responsible parent would do. The
parens patriae (father of the country) jurisdiction was
the jurisdiction of the Crown, which, as stated in Airedale
[1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821
(CA and HL)], could be traced to the 13th century. This
principle laid down that as the Sovereign it was the
duty of the King to protect the person and property
of those who were unable to protect themselves.
The Court, as a wing of the State, has inherited the
parens patriae jurisdiction which formerly belonged
to the King.
xxx xxx xxx
Doctrine of parens patriae
126. The doctrine of parens patriae (father of the country)
had originated in British law as early as in the 13th century.
It implies that the King is the father of the country and is
under obligation to look after the interest of those who are
unable to look after themselves. The idea behind parens
patriae is that if a citizen is in need of someone who
can act as a parent who can make decisions and
take some other action, sometimes the State is best
qualified to take on this role.
127. In the Constitution Bench decision of this Court in
Charan Lal Sahu v. Union of India [(1990) 1 SCC 613]
the doctrine has been explained in some detail as follows:
(SCC p. 648, para 35)
“35. … In the ‘Words and Phrases’ Permanent
Edn., Vol. 33 at p. 99, it is stated that parens
patriae is the inherent power and authority of a
legislature to provide protection to the person
and property of persons non sui juris, such as
minor, insane, and incompetent persons, but
the words parens patriae meaning thereby ‘the
father of the country’, were applied originally
to the King and are used to designate the State
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referring to its sovereign power of guardianship
over persons under disability. Parens patriae
jurisdiction, it has been explained, is the right
of the sovereign and imposes a duty on [the]
sovereign, in public interest, to protect persons
under disability who have no rightful protector.
The connotation of the term parens patriae differs
from country to country, for instance, in England
it is the King, in America it is the people, etc. The
Government is within its duty to protect and to
control persons under disability.”
(emphasis in original)
The duty of the King in feudal times to act as parens
patriae (father of the country) has been taken over in
modern times by the State.
128. In Heller v. DOE [125 L Ed 2d 257 : 509 US 312
(1992)] Mr Kennedy, J. speaking for the US Supreme
Court observed: (US p. 332)
“ ‘… the State has a legitimate interest under its
parens patriae powers in providing care to its
citizens who are unable … to care for themselves’
[Ed.: As observed in Addington v. Texas, 441 US
418 at p. 426.]”.
129. In State of Kerala v. N.M. Thomas [(1976) 2 SCC
310 : 1976 SCC (L&S) 227 : (1976) 1 SCR 906], SCR at
p. 951 Mr Mathew, J. observed: (SCC p. 343, para 64)
“64. … the Court also is ‘State’ within the meaning
of Article 12 (of the Constitution)….”
130. In our opinion, in the case of an incompetent
person who is unable to take a decision whether to
withdraw life support or not, it is the Court alone,
as parens patriae, which ultimately must take this
decision, though, no doubt, the views of the near
relatives, next friend and doctors must be given due
weight.”
(emphasis supplied)
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JUVENILE JUSTICE LEGISLATIONS IN INDIA:
THE JUVENILE JUSTICE ACT, 1986 (Act No. 53 of 1986)
12. We now touch upon the first Central enactment introduced way back
in the year 1986, in the form of the Juvenile Justice Act, 1986 (Act
No. 53 of 1986) (hereinafter referred to as the “1986 Act”). This was
the maiden attempt by the Central Legislature for a comprehensive
and uniform set of national rules for juveniles, recognising the need
to treat them separately from adults. The term ‘Juvenile’ has been
defined under Section 2(h) of the 1986 Act as under:
Section 2(h)
“2. Definitions.—In this Act, unless the context otherwise
requires-
xxx xxx xxx
(h) “juvenile” means a boy who has not attained the age
of sixteen years or a girl who has not attained the age of
eighteen years”
13. Though the 1986 Act did not specifically take into consideration the
mandate of the Constitution, the Legislature’s concern for juveniles
is evident from its provisions, including Section 32 of the 1986 Act,
which made it obligatory on the part of the Competent Authority to
make due inquiry as to the age of the person brought before it.
Section 32
“32. Presumption and determination of age.—(1) Where
it appears to a competent authority that a person brought
before it under any of the provisions of this Act (otherwise
than for the purpose of giving evidence) is a juvenile, the
competent authority shall make due inquiry as to the
age of that person and for that purpose shall take
such evidence as may be necessary and shall record a
finding whether the person is a juvenile or not, stating
his age as nearly as may be.
(2) No order of a competent authority shall be deemed
to have become invalid merely by any subsequent proof
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that the person in respect of whom the order has been
made is not a juvenile, and the age recorded by the
competent authority to be the age of the person so
brought before it shall, for the purposes of this Act,
be deemed to be the true age of that person.”
(emphasis supplied)
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)
ACT, 2000 (Act No. 56 of 2000)
14. A much more comprehensive and modern exercise undertaken by
the Central Legislature, taking due note of Article 15(3), clauses (e)
and (f) of Article 39, Article 45 and Article 47 of the Constitution,
mandating stakeholders to ensure that all the needs of children
are fulfilled by elevating them to the status of basic human rights,
is the enactment of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (Act No. 56 of 2000) (hereinafter referred to as
the “2000 Act”). While doing so, certain ideas were borrowed from
international conventions and covenants including the United Nations
Standard Minimum Rules for the Administration of Juvenile
Justice, 1985 (hereinafter referred to as “the Beijing Rules”), and
the United Nations Rules for the Protection of Juveniles Deprived
of their Liberty, 1990, amongst other instruments. Section 2(k) and
2(l) of the 2000 Act as amended by Act No. 33 of 2006 defines a
juvenile as under:
Section 2 (k) and (l)
“2. Definitions- In this Act, unless the context otherwise
requires-
xxx xxx xxx
(k) “juvenile” or “child” means a person who has not
completed eighteenth year of age;
(l) “juvenile in conflict with law” means a juvenile who
is alleged to have committed an offence and has not
completed eighteenth year of age as on the date of
commission of such offence.”
(emphasis supplied)
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The differential age qualification for boys and girls, in order to be
treated as juveniles, as was prevalent under the 1986 Act, was rightly
done away with in the 2000 Act.
15. The 2000 Act consciously made itself applicable to all pending
cases, both procedurally and substantively, which has in turn given
it an element of retrospectivity. One clear omission in the 2000 Act
is the absence of a specific duty upon the Investigating Agency
qua a juvenile during investigation, which was highlighted under
the Beijing Rules.
Rule 6 of the Beijing Rules
“6 – Scope of discretion
6.1 In view of the varying special needs of juveniles as well
as the variety of measures available, appropriate scope
for discretion shall be allowed at all stages of proceedings
and at the different levels of juvenile justice administration,
including investigation, prosecution, adjudication and the
follow-up of dispositions.”
16. Section 7A, along with the Explanation to Section 20 of the 2000
Act, were introduced into the statute by an amendment vide Act
No. 33 of 2006, to overcome the ratio of the judgment rendered by
the Constitution Bench of this Court in Pratap Singh vs. State of
Jharkhand (2005) 3 SCC 551, wherein it was declared that the benefit
of juvenility cannot be extended to a person who had completed 18
years of age as on 01.04.2001 – i.e. the date of enforcement of the
2000 Act.
Section 7A
“7A. Procedure to be followed when claim of juvenility
is raised before any Court.-
(1) Whenever a claim of juvenility is raised before any court
or a court is of the opinion that an accused person was
a juvenile on the date of commission of the offence, the
Court shall make an inquiry, take such evidence as may
be necessary (but not an affidavit) so as to determine the
age of such person, and shall record a finding whether
the person is a juvenile or a child or not, stating his age
as nearly as may be:
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Provided that a claim of juvenility may be raised before
any court and it shall be recognised at any stage, even
after final disposal of the case, and such claim shall
be determined in terms of the provisions contained
in this Act and the rules made thereunder, even if the
juvenile has ceased to be so on or before the date of
commencement of this Act.
(2) If the Court finds a person to be a juvenile on the date
of commission of the offence under sub-section (1), it shall
forward the juvenile to the Board for passing appropriate
order, and the sentence, if any, passed by a court shall
be deemed to have no effect.”
(emphasis supplied)
Section 20
“20. Special provision in respect of pending cases-
Notwithstanding anything contained in this Act, all
proceedings in respect of a juvenile pending in any Court
in any area on the date on which this Act comes into force
in that area, shall be continued in that Court as if this Act
had not been passed and if the Court finds that the juvenile
has committed an offence, it shall record such finding and
instead of passing any sentence in respect of the juvenile,
forward the juvenile to the Board which shall pass orders
in respect of that juvenile in accordance with the provisions
of this Act as if it had been satisfied on inquiry under this
Act that a juvenile has committed the offence:
Provided that the Board may, for any adequate and special
reason to be mentioned in the order, review the case and
pass appropriate order in the interest of such juvenile.
Explanation. In all pending cases including trial,
revision, appeal or any other criminal proceedings
in respect of a juvenile in conflict with law, in any
court, the determination of juvenility of such a juvenile
shall be in terms of clause (l) of section 2, even if
the juvenile ceases to be so on or before the date of
commencement of this Act and the provisions of this
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Act shall apply as if the said provisions had been in
force, for all purposes and at all material times when
the alleged offence was committed.”
(emphasis supplied)
17. While Section 7A of the 2000 Act deals with the procedure to be
followed when a claim of juvenility is raised before any Court,
Section 20 of the 2000 Act is a special provision in respect of pending
cases. Under both these provisions, it has been made abundantly clear
that the 2000 Act and the relevant rules would also be applicable to
a juvenile who ceased to be so on or before the commencement of
the 2000 Act. Thus, a retrospective application has been facilitated
under the 2000 Act.
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)
ACT, 2015 (Act No. 2 of 2016)
18. The Juvenile Justice (Care and Protection of Children) Act, 2015
(Act No. 2 of 2016) (hereinafter referred to as the “2015 Act”) is an
improved version of the earlier legislations. The Hague Convention
on Protection of Children and Cooperation in respect of Inter-
country Adoption, 1993, has also been factored into. The 2015
Act undertook the exercise of classifying offences into different
categories. It defines the word ‘Court’ under Section 2(23), as one
having original jurisdiction. This definition is only illustrative in nature,
in tune with the importance of the enactment.
Section 2
“2. Definitions- In this Act, unless the context otherwise
requires:
xxx xxx xxx
(23) “court” means a civil court, which has jurisdiction in
matters of adoption and guardianship and may include
the District Court, Family Court and City Civil Courts;”
19. Thus, any Court which is competent to decide the issue of juvenility
would come within the purview of the definition clause, which
includes both the appellate and the revisional forums as well as the
Constitutional Courts. In other words, every Court of competence
shall assume the role of a Juvenile Court. We say so as, giving
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effect to the provisions of the 2015 Act is imperative in view of the
constitutional mandate.
Section 5
“5. Placement of person, who cease to be a child
during process of inquiry-Where an inquiry has been
initiated in respect of any child under this Act, and during
the course of such inquiry, the child completes the age of
eighteen years, then, notwithstanding anything contained
in this Act or in any other law for the time being in force,
the inquiry may be continued by the Board and orders may
be passed in respect of such person as if such person
had continued to be a child.”
Section 6
“6. Placement of persons, who committed an offence,
when person was below the age of eighteen years-
(1) Any person, who has completed eighteen years of age,
and is apprehended for committing an offence when he
was below the age of eighteen years, then, such person
shall, subject to the provisions of this section, be treated
as a child during the process of inquiry.
(2) The person referred to in sub-section (1), if not released
on bail by the Board shall be placed in a place of safety
during the process of inquiry.
(3) The person referred to in sub-section (1) shall be
treated as per the procedure specified under the provisions
of this Act.”
Sections 5 and 6 of the 2015 Act reiterate the principle
that even a juvenile who has attained majority during the
course of inquiry should be treated as a juvenile.
20. Section 9 of the 2015 Act is the very substance of the entire enactment
and sub section (2) is pari materia to Section 7A of the 2000 Act.
Section 9
“9. Procedure to be followed by a Magistrate who has
not been empowered under this Act-
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(1). When a Magistrate, not empowered to exercise the
powers of the Board under this Act is of the opinion that
the person alleged to have committed the offence and
brought before him is a child, he shall, without any delay,
record such opinion and forward the child immediately
along with the record of such proceedings to the Board
having jurisdiction.
(2) In case a person alleged to have committed an
offence claims before a court other than a Board, that
the person is a child or was a child on the date of
commission of the offence, or if the court itself is of
the opinion that the person was a child on the date of
commission of the offence, the said court shall make an
inquiry, take such evidence as may be necessary (but
not an affidavit) to determine the age of such person,
and shall record a finding on the matter, stating the
age of the person as nearly as may be:
Provided that such a claim may be raised before any
court and it shall be recognised at any stage, even
after final disposal of the case, and such a claim shall
be determined in accordance with the provisions
contained in this Act and the rules made thereunder
even if the person has ceased to be a child on or
before the date of commencement of this Act.
(3) If the court finds that a person has committed an
offence and was a child on the date of commission of such
offence, it shall forward the child to the Board for passing
appropriate orders and the sentence, if any, passed by
the court shall be deemed to have no effect.
(4) In case a person under this section is required to be
kept in protective custody, while the person’s claim of being
a child is being inquired into, such person may be placed,
in the intervening period in a place of safety.”
(emphasis supplied)
Under sub-section (2), it is the fundamental duty of the Court to
make an inquiry, and take such evidence as may be necessary
for the purpose of determining the age of the person brought
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before it. The proviso to sub-section (2) is a rather interesting
one. In fact, this proviso throws some light on the main provision,
giving an extended leverage to the plea of juvenility. Thus,
the plea of juvenility can be raised before any Court, meaning
thereby that there is no question of finality in this regard until
and unless an application filed, invoking this provision, is
determined in accordance with the 2015 Act and the relevant
rules. When such a plea is raised, it shall be recognised and
cannot be brushed aside in a casual or whimsical manner. A
due determination must be made by judiciously considering the
material available on record. The Court is expected to travel
an extra mile to satisfy its conscience as to whether the case
on hand would attract the provisions of the 2015 Act and, for
the aforesaid purpose, the process enumerated thereunder will
have to be necessarily followed. The proviso further clarifies
that the 2015 Act and the relevant rules are applicable even
if a person who has been accused of an offence, has ceased
to be a child on or before the date of the commencement of
the 2015 Act.
PLEA OF JUVENILITY VIS-A-VIS ‘FINAL DISPOSAL’
21. We place emphasis on the words “even after the final disposal of
the case” in Section 9(2) of the 2015 Act. As stated, this provision
being the heart and soul of the entire Act, must be given its fullest
meaning and interpretation. If the offence is committed by a child, it
cannot be treated otherwise than as provided under the 2015 Act.
After finding out the truth, necessary consequences must follow.
In a country like ours, where society is fragmented due to various
reasons including, but not limited to illiteracy and poverty, the role
which is assigned to the Court assumes great significance. Sufficient
opportunities must be given to the child in conflict with law to get
the benefit of the 2015 Act.
22. Merely because a casual adjudication has taken place, it does not
mean that a plea of juvenility cannot be raised subsequently. This
is for the simple reason that the plea of juvenility has not attained
finality. So long as the right of a party subsists, one can never say
that finality has been attained. In a case where a plea has been
raised, but not adjudicated upon, the decision rendered thereunder
would not amount to attaining finality. Likewise, when such a plea is
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not treated as one under Section 9(2) of the 2015 Act in compliance
with the procedural mandate specified thereunder, an order rejecting
such a plea would not be termed as a final one. To put it differently,
even assuming a plea of juvenility was raised but not considered
appropriately at the time of disposal of a Special Leave Petition/
Statutory Criminal Appeal, a Review Petition, or a Curative Petition
thereafter, it would not bar a competent Court from deciding the
said issue by following due procedure. We make it clear that if an
adjudication is based on due determination, then there may not be
any room for another round of litigation. But, in a case where the
plea was not treated as an application under Section 9(2) of the 2015
Act and, the procedure mandated thereunder was not followed, the
principle as aforesaid would certainly apply as the right of raising the
plea of juvenility has not ceased and, therefore, subsists.
23. Since the need for taking care of a juvenile in conflict with law is
mandated by the Constitution, the role of the constitutional Courts
is significant. Even after the dismissal of a Special Leave Petition/
Statutory Criminal Appeal followed by incidental proceedings
before this Court, where the plea of juvenility was not consciously
considered, there would be no bar on the constitutional Courts to
consciously take a deeper look. Doing so is not an exercise of the
powers conferred under Articles 32, 136 or 226 of the Constitution,
but an act in fulfilment of a mandated duty enjoined upon the Courts,
to give effect to the laudable objective of a social welfare legislation.
We shall now place on record the views expressed and judgments
rendered on the aspect of finality, and why a different view can be
taken by this Court, notwithstanding its earlier decision, in exercise
of the powers conferred under the Constitution:
Jethanand and Sons v. State of Uttar Pradesh, 1961 SCC
OnLine SC 193 : (1961) 3 SCR 754 : AIR 1961 SC 794
“7. In our view, the order remanding the cases under
Section 151 of the Civil Procedure Code is not a judgment,
decree or final order within the meaning of Article 133 of
the Constitution. By its order, the High Court did not decide
any question relating to the rights of the parties to the
dispute. The High Court merely remanded the cases for
retrial holding that there was no proper trial of the petitions
filed by the appellants for setting aside the awards. Such
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an order remanding the cases for retrial is not a final order
within the meaning of Article 133(1)(c). An order is final
if it amounts to a final decision relating to the rights
of the parties in dispute in the civil proceeding. If after
the order, the civil proceeding still remains to be tried
and the rights in dispute between the parties have to
be determined, the order is not a final order within the
meaning of Article 133….”
(emphasis supplied)
Mohan Lal Magan Lal Thacker v. State of Gujarat, 1967
SCC OnLine SC 137 : (1968) 2 SCR 685 : AIR 1968 SC 733
“4. The question as to whether a judgment or an order
is final or not has been the subject-matter of a number
of decisions; yet no single general test for finality
has so far been laid down. The reason probably is that
a judgment or order may be final for one purpose and
interlocutory for another or final as to part and interlocutory
as to part. The meaning of the two words “final” and
“interlocutory” has, therefore, to be considered separately
in relation to the particular purpose for which it is required.
However, generally speaking, a judgment or order
which determines the principal matter in question is
termed final. It may be final although it directs enquiries
or is made on an interlocutory application or reserves
liberty to apply [Halsbury’s Laws of England (3rd Edn.)
Vol. 22, 742-43]. In some of the English decisions where
this question arose, one or the other of the following
four tests was applied.
1. Was the order made upon an application such that
a decision in favour of either party would determine
the main dispute?
2. Was it made upon an application upon which the
main dispute could have been decided?
3. Does the order as made determine the dispute?
4. If the order in question is reversed, would the action
have to go on?”
(emphasis supplied)
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Lily Thomas v. Union of India (2000) 6 SCC 224
“56. It follows, therefore, that the power of review can be
exercised for correction of a mistake but not to substitute
a view. Such powers can be exercised within the limits of
the statute dealing with the exercise of power. The review
cannot be treated like an appeal in disguise. The mere
possibility of two views on the subject is not a ground for
review. Once a review petition is dismissed no further
petition of review can be entertained. The rule of law of
following the practice of the binding nature of the larger
Benches and not taking different views by the Benches
of coordinated jurisdiction of equal strength has to be
followed and practised. However, this Court in exercise
of its powers under Article 136 or Article 32 of the
Constitution and upon satisfaction that the earlier
judgments have resulted in deprivation of fundamental
rights of a citizen or rights created under any other
statute, can take a different view notwithstanding the
earlier judgment.”
(emphasis supplied)
HIERARCHY OF DOCUMENTS
24. Rule 12 of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 (hereinafter referred to as the “2007 Rules”) must be
understood and appreciated in tune with the principal Act.
Rule 12 of the 2007 Rules
“12. Procedure to be followed in determination of age.
xxx xxx xxx
(3) In every case concerning a child or juvenile in conflict
with law, the age determination inquiry shall be conducted
by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining-
(a)(i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
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(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(b)and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or
the Board or, as the case may be, the Committee,
for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or
juvenile by considering his/her age on lower side
within the margin of one year.
and, while passing orders in such case shall, after taking
into consideration such evidence as may be available,
or the medical opinion, as the case may be, record a
finding in respect of his age and either of the evidence
specified in any of the clauses (a)(i), (ii), (iii) or in the
absence whereof, clause (b) shall be the conclusive
proof of the age as regards such child or the juvenile in
conflict with law.”
While there is no difficulty in the application of the principal Act
inclusive of the procedural part, even for a juvenile in conflict
with law who has attained majority on or after 01.04.2001, Rule
12 of the 2007 Rules must be applied retrospectively even to
those cases, especially where no exercise was undertaken
under any of the State Rules or the erstwhile Acts, on earlier
occasions.
25. Sub-rule (3) of Rule 12 is nothing but a rule of evidence. It merely
provides a hierarchy of documents in the order of priority, to be
taken note of and considered while determining the age of a juvenile
in conflict with law, in an ongoing inquiry. Sub-rule (3), apart from
making a reference to specified documents, debars resorting to the
subsequently mentioned document, except in a case where the earlier
document(s) is/are not available. Therefore, where a matriculation
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certificate is very much available, a date of birth certificate from the
school or a birth certificate given by a local authority shall never be
looked into. Only if none of the aforementioned three documents
is available, can one go for a medical opinion. While interpreting
this Rule, we make it clear that it should not be misunderstood that
even in those cases where due inquiry was undertaken under the
erstwhile enactments and the relevant rules, one can seek a fresh
inquiry under Rule 12 of the 2007 Rules.
26. Section 94(2) of the 2015 Act is a reiteration of Rule 12 of the 2007
Rules, and both should be read in consonance with each other.
Section 94 of the 2015 Act
“94. Presumption and Determination of age
xxx xxx xxx
(2) In case, the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought
before it is a child or not, the Committee or the Board,
as the case may be, shall undertake the process of age
determination, by seeking evidence by obtaining —
(i) the date of birth certificate from the school, or
the matriculation or equivalent certificate from the
concerned examination Board, if available; and in
the absence thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age
shall be determined by an ossification test or any other
latest medical age determination test conducted on
the orders of the Committee or the Board:
Provided such age determination test conducted on the
order of the Committee or the Board shall be completed
within fifteen days from the date of such order.”
JUVENILITY AS AN ADMITTED FACT
27. Admission is a rule of evidence. It is a relevant fact. It becomes
relevant qua a fact in issue. When an admission is clear, unambiguous,
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continuous and unequivocal, it becomes the best form of evidence,
and transforms itself into a fact in issue. When a party makes an
admission, either by way of an oral statement or by acknowledging
a document authored by them, the Court must proceed on that
basis. The resultant relief, which is axiomatic, cannot be denied on
the anvil of procedural law. Any contra view would result in grave
injustice. On an issue where there is no dispute, denying a rightful
relief would be an affront to fair play and justice. Here, we may add
a word of caution. The Court cannot construe a statement as an
admission and proceed on that basis. There is a subtle difference
between an unequivocal admission as against a statement which
could be construed to be so. It must be seen contextually. While
the former can be the basis for a relief, the latter is one meant for
adjudication vis-a-vis the facts of the case.
ACTUS CURIAE NEMINEM GRAVABIT
28. No one shall be prejudiced by an act of the Court. A mistake
committed by the Court cannot stand in the way of one’s rightful
benefit. It is not the party which commits a mistake, but rather the
Court itself. Hence, such a mistake cannot act as a barrier for the
party to get its due relief. However, we make it clear that the mistake
must be so apparent that it does not brook any adjudication on the
foundational facts.
A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602
“82. Lord Cairns in Rodger v. Comptoir D’escompte De
Paris [(1869-71) LR 3 PC 465, 475 : 17 ER 120] observed
thus:
“Now, Their Lordships are of opinion, that one
of the first and highest duties of all courts is to
take care that the act of the court does no injury
to any of the suitors, and when the expression
‘the act of the court’ is used, it does not mean
merely the act of the primary court, or of any
intermediate court of appeal, but the act of the
court as a whole, from the lowest court which
entertains jurisdiction over the matter up to the
highest court which finally disposes of the case.
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It is the duty of the aggregate of those Tribunals,
if I may use the expression, to take care that no
act of the court in the course of the whole of the
proceedings does an injury to the suitors in the
court.”
83. This passage was quoted in the Gujarat High Court
by D.A. Desai, J., speaking for the Gujarat High Court in
Soni Vrajlal v. Soni Jadavji [AIR 1972 Guj 148 : (1972)
13 Guj LR 555] as mentioned before. It appears that in
giving directions on February 16, 1984, this Court acted
per incuriam inasmuch it did not bear in mind consciously
the consequences and the provisions of Sections 6 and 7
of the 1952 Act and the binding nature of the larger Bench
decision in Anwar Ali Sarkar case [1952 SCR 284 : AIR
1952 SC 75 : 1952 Cri LJ 510] which was not adverted to by
this Court. The basic fundamentals of the administration
of justice are simple. No man should suffer because
of the mistake of the court. No man should suffer a
wrong by technical procedure of irregularities. Rules
or procedures are the handmaids of justice and not the
mistress of the justice. Ex debito justitiac, we must do
justice to him. If a man has been wronged so long as
it lies within the human machinery of administration
of justice that wrong must be remedied. This is a
peculiar fact of this case which requires emphasis.”
(emphasis supplied)
JUDICIAL REVIEW OF THE PRESIDENTIAL ORDER
29. The power of pardon, as conferred under Article 72 and 161 of the
Constitution, is sovereign. It is a power of compassion and empathy.
It is meant to remove or reduce all pains, penalties and punishment
suffered by a convict. The exercise of the aforementioned sovereign
power by the highest constitutional authority, either of the State or the
Centre, is a final grace given under the Constitution for the convict
to reintegrate into the society.
30. Power under Article 72 and 161 of the Constitution is not appellate or
revisional in nature. It is an executive power travelling on a different
channel, which cannot be termed as a power of appeal or review.
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31. A challenge to the exercise of power under Article 72 and 161 of the
Constitution would involve limited judicial review on grounds such
as inadequate application of mind, amongst others.
Kehar Singh v. Union of India (1989) 1 SCC 204
“10. We are of the view that it is open to the President in
the exercise of the power vested in him by Article 72 of
the Constitution to scrutinise the evidence on the record
of the criminal case and come to a different conclusion
from that recorded by the court in regard to the guilt of,
and sentence imposed on, the accused. In doing so, the
President does not amend or modify or supersede the
judicial record. The judicial record remains intact, and
undisturbed. The President acts in a wholly different
plane from that in which the Court acted. He acts
under a constitutional power, the nature of which is
entirely different from the judicial power and cannot
be regarded as an extension of it….”
(emphasis supplied)
State of Haryana v. Jagdish (2010) 4 SCC 216
“28. Nevertheless, we may point out that the power of
the sovereign to grant remission is within its exclusive
domain and it is for this reason that our Constitution
makers went on to incorporate the provisions of Article
72 and Article 161 of the Constitution of India. This
responsibility was cast upon the executive through
a constitutional mandate to ensure that some public
purpose may require fulfilment by grant of remission in
appropriate cases. This power was never intended to be
used or utilised by the executive as an unbridled power
of reprieve. Power of clemency is to be exercised
cautiously and in appropriate cases, which in effect,
mitigates the sentence of punishment awarded and
which does not, in any way, wipe out the conviction.
It is a power which the sovereign exercises against
its own judicial mandate. The act of remission of the
State does not undo what has been done judicially.
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The punishment awarded through a judgment is not
overruled but the convict gets benefit of a liberalised
policy of State pardon….”
(emphasis supplied)
Shatrughan Chauhan v. Union of India (2014) 3 SCC 1
“242. In the aforesaid batch of cases, we are called upon
to decide on an evolving jurisprudence, which India has to
its credit for being at the forefront of the global legal arena.
Mercy jurisprudence is a part of evolving standard of
decency, which is the hallmark of the society.
xxx xxx xxx
244. It is well established that exercising of power under
Articles 72/161 by the President or the Governor is a
constitutional obligation and not a mere prerogative.
Considering the high status of office, the Constitution
Framers did not stipulate any outer time-limit for
disposing of the mercy petitions under the said Articles,
which means it should be decided within reasonable
time. However, when the delay caused in disposing
of the mercy petitions is seen to be unreasonable,
unexplained and exorbitant, it is the duty of this Court
to step in and consider this aspect. Right to seek for
mercy under Articles 72/161 of the Constitution is a
constitutional right and not at the discretion or whims
of the executive. Every constitutional duty must be
fulfilled with due care and diligence, otherwise judicial
interference is the command of the Constitution for
upholding its values.
245. Remember, retribution has no constitutional
value in our largest democratic country. In India,
even an accused has a de facto protection under
the Constitution and it is the Court’s duty to shield
and protect the same. Therefore, we make it clear
that when the judiciary interferes in such matters,
it does not really interfere with the power exercised
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under Articles 72/161 but only to uphold the de facto
protection provided by the Constitution to every
convict including death convicts.”
(emphasis supplied)
32. Suffice it is to state that Courts will have to exercise adequate
caution and circumspection while dealing with an executive order
passed in exercise of the power conferred under Article 72 or 161
of the Constitution. We make it clear that when a challenge is made
to an executive order, with an independent prayer for exercising the
power under Section 9(2) of the 2015 Act, they being distinct and
independent, refusal of judicial review of the former will not obliterate
the mandatory duty pertaining to the latter.
FACTUAL MATRIX
33. The Appellant stood charged for the offence of culpable homicide
amounting to murder. The incident occurred way back on 15.11.1994.
A statement under Section 313 of the Code of Criminal Procedure,
1973 (hereinafter referred to as “CrPC, 1973”) was recorded by the
trial Court. Under the format of the statement, the Appellant gave
his name, his father’s name, his age and other particulars. He had
given his age as 20 years, as on 07.03.2001. In reply to Question
No. 26, he stated that it was correct that he had opened a bank
account and that a cheque book had been issued. This statement
is irrelevant in the context of juvenility.
34. After his conviction, he raised the plea of juvenility during the
hearing on sentence by stating that he was about 17 years of age
at the time of occurrence. It is not in dispute that he was illiterate.
The trial Court, while relying upon his statement regarding the
bank account, presumed that he was a major and sentenced him
to death, overwhelmed by the nature of the crime. On an appeal
to the High Court, the Appellant was represented by an Amicus
Curiae. An attempt was again made to raise the plea of juvenility,
by stating that the Appellant was required to be tried by a Juvenile
Court and be given the benefit of being a juvenile. Once again, the
bank account and the cheque book were relied upon. In tune with
the thinking of the trial Court, the High Court was also persuaded
by the offence committed.
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35. The matter reached this Court. This time, the Appellant placed reliance
upon the birth certificate issued by the Dariya Para Bodinath Board
School dated 28.04.2001. This Court, having found that the reasoning
of the High Court cannot be faulted with, dismissed the appeal.
Thus, the views expressed by the trial Court and confirmed by the
High Court were duly concurred with. Undeterred and undaunted,
the Appellant filed a Review Petition, reiterating the fact that he
was a minor at the time of the offence. It was also pointed out that
it was his deceased employer who filled the details to open the
bank account. The Review Petition was dismissed. After the said
dismissal, a Mercy Petition filed before the Governor of the State of
Uttarakhand, was also rejected.
36. Thereafter, a Writ Petition was filed before this Court, by the
Appellant’s parents along with a social worker, enclosing a copy of
the school certificate dated 19.06.2003 from the headmaster and a
transfer certificate dated 28.04.2001. This Writ Petition filed invoking
Article 32 of the Constitution, was dismissed on 16.02.2005 with
liberty to invoke the curative jurisdiction of this Court. Accordingly, a
Curative Petition was filed. It is interesting to note that by way of a
counter affidavit to the Curative Petition, Respondent No. 2 herein,
after verifying the school certificate, produced another certificate
dated 07.01.2006 issued by the Dariya Para Bodinath Board School,
which reiterated the fact that the Appellant was 14 years of age on
the date of the occurrence. Unfortunately, this Curative Petition was
also dismissed by an order of this Court dated 06.02.2006.
37. After the amendment incorporating Section 7A into the 2000 Act, the
Appellant’s mother filed a Mercy Petition before Hon’ble the President
of India. During the pendency of the said Mercy Petition, the 2007
Rules, came into effect. Incidentally, an ossification test was also
done by a Medical Board constituted by the Meerut Jail, on a request
made by the Appellant by way of an application. The Medical Age
Certificate issued therein also indicated that the Appellant was aged
around 14 years at the time of the occurrence.
38. By the Presidential Order dated 08.05.2012, the death sentence
of the Appellant was commuted to life imprisonment, with a caveat
that he shall not be released until the attainment of 60 years of age.
An application under the Right to Information Act, 2005 was filed
thereafter by the Appellant, through which information was obtained
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from the bank that any minor above 10 years of age can have an
independent bank account, provided he knew how to read and write,
and also that no cheque book was issued for the bank account
opened in the name of the Appellant.
39. A subsequent Curative Petition filed by him was rejected by the
Registry as not maintainable. In the year 2019, the Appellant filed
a Writ Petition before the High Court invoking Article 226 of the
Constitution, laying a challenge to the Presidential Order while seeking
yet another relief on the basis of Section 9(2) of the 2015 Act. By
a comprehensive judgment, the Writ Petition was dismissed by the
High Court inter alia holding that the power of judicial review over an
executive order passed in exercise of Article 72 of the Constitution
is limited, and the proceedings against the Appellant had attained
finality. Suffice it is to state that merits were not gone into in view of
the clear stand of the State on the age of the Appellant. Aggrieved,
the Appellant is before us.
SUBMISSIONS
40. Dr. S. Muralidhar, learned Senior Counsel appearing for the Appellant
submitted that the High Court committed an error in not considering
the independent prayer sought for by the Appellant. It is not in
dispute that the age of the Appellant was 14 years at the time of
commission of the offence. There is no judicial finality attained and
the phrase “any stage” used in Section 9(2) of the 2015 Act must
be given an extended meaning. There is no contrary finding given
against the Appellant vis-à-vis the plea of juvenility, which he has
raised at every stage. It is a case where grave injustice has been
meted out, as can be demonstrated by the lack of adjudication
and, therefore, the Appellant is entitled for immediate release. As
the Appellant has been unfairly kept under incarceration including
the earlier solitary confinement, which is obviously untenable and
illegal, while granting the relief of releasing the Appellant forthwith,
he should be adequately compensated for the loss of formative years
suffered by him in the prison.
41. To buttress his submissions, the Learned Senior Counsel has placed
reliance upon the following decisions:
(i). Section 9(2) of the Juvenile Justice Act, 2015 can be invoked
even after the final disposal of the case
[2025] 1 S.C.R. 399
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• Ram Narain v. State of Uttar Pradesh (2015) 17 SCC 699.
• Hari Dutt Sharma v. The State of Uttar Pradesh, Order
of the Supreme Court dated 07.02.2022 in Writ Petition
(Crl.) 367 of 2021.
(ii). Beneficial and retrospective applicability of change in law
post the dismissal of the Curative Petition on 06.02.2006
• Hari Ram v. State of Rajasthan (2009) 13 SCC 211.
• Abdul Razzaq v. State of Uttar Pradesh (2015) 15 SCC 637.
• T Barai v. Henry Ah Hoe and another (1983) 1 SCC 177.
(iii). Claim of juvenility can be raised and considered even
after the President has exercised powers under Article 72,
Constitution of India
• Kehar Singh v. Union of India (1989) 1 SCC 204.
• Ram Deo Chauhan v. Bani Kanta Das (2010) 14 SCC 209.
42. Per contra, Mr. K.M. Nataraj, learned Additional Solicitor General, and
learned Counsel Ms. Vanshaja Shukla appearing for the Respondents
submitted that this is an attempt to reopen and re-hear an issue which
has attained finality. There was indeed an adjudication by this Court
on the earlier occasion. The Mercy Petition was considered under
the constitutional mandate and, therefore, it does not require any
interference. The Special Leave Petition, as filed, is not maintainable.
The bone ossification test cannot be the sole basis for declaring the
appellant as the minor. While summing up, the Learned Additional
Solicitor General submitted that without prejudice to the other
contentions, if this Court comes to the aid of the Appellant, it should
be clarified that it shall not stand as a precedent. In any case, there
is due compliance of Rule 12(3) of the 2007 Rules, which is not in
dispute, as can be seen even from the present affidavit filed by the
Respondent No.2.
43. To buttress her submissions, the Learned Counsel for Respondent
No. 2 has placed reliance upon the following decisions:
• Vinay Sharma v. Union of India (2020) 4 SCC 391.
• Pawan Kumar Gupta v. State (NCT of Delhi) (2021) 13 SCC 249.
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DISCUSSION
44. During the course of the hearing, we directed Respondent No.2
to obtain fresh instructions on the admission made in the counter
affidavit filed by it in the Curative Petition filed earlier by the Appellant.
This was pertaining to the certificate produced by the Appellant
and the validity of the ossification test. An affidavit has been filed
by Respondent No. 2 reiterating its earlier stand as regards the
certificate. Therefore, on facts, there is no dispute that the Appellant
was only 14 years old at the time of the commission of the offence.
45. The facts as narrated above, speak for themselves. At every stage,
injustice has been inflicted by the Courts, either by ignoring the
documents or by casting a furtive glance. The Appellant despite
being illiterate, raised this plea one way or another, right from the trial
Court up to the conclusion of the Curative Petition before this Court.
46. The approach of the Courts in the earlier round of litigation cannot
be sustained in the eye of law. There can be no reliance on the
statement recorded under Section 313 of CrPC, 1973 particularly
when the Appellant was asked to give his particulars for the purpose
of recording his statement. Even the said statement shows that he
was 20 years of age at the time of making his deposition, which
could only mean that he was 14 years of age at the time of the
commission of the offence. The bank account has no relevance
under the Acts and the relevant rules, and in any case, it is to be
proved, though not contemplated under Rule 12 of the 2007 Rules.
The statement given by the Appellant at the time of the hearing on
his sentence, would also pale into insignificance, as even then he
would have been a minor at the time of commission of the offence,
under both the 2000 and the 2015 Acts.
47. Though the 2000 Act was already enacted before the Appellant’s
conviction, even assuming that only the 1986 Act was in vogue, the
procedural mandate contemplated thereunder was also not followed
by the trial Court and the High Court. Before this Court, the Appellant
had relied upon the school certificate in the Criminal Appeal. It was
once again relied upon in the Review Petition. Thereafter, additional
documents were relied upon by the Appellant in the Writ Petition and
also in the Curative Petition which was subsequently filed. In the
Curative Petition, a counter affidavit was filed by the State certifying
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the documents furnished by the Appellant to be true. Nonetheless,
the said petition was dismissed without according any reason.
48. We are taking note of these facts only for the purpose of dealing with
the case as these discussions are not even relevant in view of the
clear statement in writing made on two occasions by the Respondent
No. 2. We may further add that even the then existing State Rules
were not duly followed, and if followed, the same would have enured
to the benefit of the Appellant.
49. We would only say that when the plea of juvenility was raised, it
should have been dealt with under the existing laws at the relevant
point of time, especially when there exists a tacit and clear admission
as to the age of the Appellant. In fact, there is no need for such
an inquiry in view of the aforesaid position. In our considered view,
this Court could have dealt with the Writ Petition filed under Article
32 of the Constitution, as it raised an independent prayer for the
enforcement of a right conferred under a social welfare legislation.
50. In the subsequent Writ Petition filed before the High Court, two
different prayers had been made, namely, the determination of the
Appellant’s plea of juvenility and consequent release, or alternatively,
judicial review of the decision of the President or the Governor and
consequent release. As the Executive cannot be construed to have
undertaken an adjudication on the determination of the age of the
accused, and with the first prayer being a distinct one invoking Section
9(2) of the 2015 Act, we feel that the High Court has committed an
error in its reasoning. We would only state that this is a case where
the Appellant has been suffering due to the error committed by the
Courts. We have been informed that his conduct in the prison is
normal, with no adverse report. He lost an opportunity to reintegrate
into the society. The time which he has lost, for no fault of his, can
never be restored.
51. As we find that the Appeal deserves to be allowed in view of the
conclusion arrived at, we are inclined to set aside the sentence
imposed in excess of the upper limit prescribed under the relevant
Act, while maintaining the conviction rendered. It cannot be construed
that the Presidential Order is interfered with, as the issue that we
are concerned with, is the failure of the Court in not applying the
mandatory provisions of the 2015 Act with specific reference to the
plea of juvenility. Therefore, it is not a review of the Presidential
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Order, but a case of giving the benefit of the provisions of the 2015
Act to a deserving person.
52. From the custody certificate filed on record, it appears that the
Appellant has undergone imprisonment for almost 25 years, during
which time, the society has undergone significant transformation which
the Appellant might be unaware of and find difficult to adjust with.
53. In view of the same, we direct the Uttarakhand State Legal Services
Authority (for short “the State Authority”) to play a proactive role
in identifying any welfare scheme of the State/Central Government,
facilitating the Appellant’s rehabilitation and smooth reintegration into
the society upon his release, with particular emphasis on his right
to livelihood, shelter and sustenance guaranteed under Article 21 of
the Constitution. We further direct the State Authority to assist him
in availing any such scheme under which he is found eligible and
wishes to avail, and such assistance may be effected through the
concerned District Legal Services Authority, if the State Authority
finds the same expedient and necessary. The Registry is directed
to forthwith communicate this order to the State Authority.
54. The Appeal is allowed. The impugned judgment stands set aside.
The sentence imposed against the Appellant in excess of the upper
limit prescribed under the relevant Act, shall stand set aside, while
making it clear that the conviction shall continue. The Appellant shall
be released forthwith, if not required in any other case.
55. Pending application(s), if any, shall stand disposed of.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Nidhi Jain
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