VIJAY SINGHversusSTATE OF DELHI

                                                           ,.

                         [2012] 7 S.C.R. 434


A                           VIJAY SINGH
                                   v.
                          STATE OF DELHI
                 (Criminal Appeal No.1322 of 2012)

                         AUGUST 29, 2012
B
       [T.S. THAKUR AND FAKKIR MOHAMED IBRAHIM
                     KALIFULLA, JJ.]

       Juvenile Justice (Care & Protection of Children) Act, 2000
C [as amended] - ss. 2(k), 2(1), 7A, 20 and 49 - Juvenile Justice
  (Care and Protection of Children) Rules, 2007 - rr.12 and 98
  - Appellant allegedly gave knife blows on the person of PW-
  4 - Trial court convicted appellant u/s.307 /PC and sentenced
  him to rigorous imprisonment for five years - Conviction and
o sentence confirmed by High Court - Before Supreme Court,
  for the first time the appellant took the plea of juvenility -
  Placing reliance upon his school leaving certificate, the
  appellant pleaded that that he was a juvenile on the date of
  the occurrence - Held: On facts, order of conviction imposed
E on the appellant not liable to be interfered with - However, as
  per the school leaving certificate, the date of birth of appellant
  recorded in the school admission register was 1-12-1981 -
  Principal/Head Master of the School verified the admission
  register - Report submitted by the District Judge also
F disclosed that the certificate was genuine, and that the date
  of birth recorded therein was correct - Thus, on the date of
  offence i.e. 11-3-1998, the appellant was 16 years 3 months
  and 10 days old - Since appellant was below 18 years of age
  on the date of commission of the offence, the provisions of
G the Juvenile Justice Act would apply in full force in his case -
  However, since the offence was alleged to have been
  committed more than 10 years ago and the appellant would
  have now crossed the age of 30 years, no point in remitting
  the matter back to the Juvenile Justice Court and instead,

H                                434
          VIJAY SINGH v. STATE OF DELHI                 435


appropriate orders can be passed by the Supreme Court itself   A
- Consequently, conviction of appellant sustained, but the
sentence imposed on him set aside - Penal Code, 1860 -
s.307.

    .The offence alleged against the appellant was that on     8
11-3-1998, he gave knife blows on the person of PW-4
who demanded repayment of the money (Rs.3,0001-) lent
to the appellant. The trial court convicted the appellant
under Section 307 IPC and sentenced him to rigorous
imprisonment for five years. The conviction and sentence       C
was confirmed by the High Court.

     In the instant appeal before this Court, for the first
time the appellant took the plea of juvenility. Placing
reliance upon the date of birth recorded in his School
Leaving Certificate (wherein the date of birth of the          0
appellant was recorded as 1-12-1981 ), the appellant
contended that he was less than 18 years of age on the
date of the incident i.e. 11-3-1998. This Court directed an
enquiry by the District Judge as to whether the appellant
was a juvenile on 11-3-1998 and to submit a detailed           E
report. The District Judge returned a finding that on the
date of the incident, namely, 11-3-1998, the age of the
appellant was less than 18 years of age, and therefore he
was a juvenile on that date.
                                                               F
    Partly allowing the appeal, the Court

    HELD: 1. Having regard to the overwhelming
evidence led before the trial Court and on being
convinced of the proof of guilt against the appellant, the     G
appellant was convicted for the offence under Section
307, IPC alongwith a sentence of five years' rigorous
imprisonment. The High Court, on a detailed analysis of
the evidence available on record and the injuries
sustained by the vicitim-PW-4, which was supported by          H
    436     SUPREME COURT REPORTS                [2012] 7 S.C.R.


A medical evidence, dismissed the appeal. In the
  circumstances, this Court does not find any scope to
  interfere with the order of conviction imposed on the
  appellant. [Para 7) [442-C-D]

8        2. The plea of juvenility taken by the appellant is to
    be considered in the light of the provisions of the
    Juvenile Justice Act, 1986 (the Act) as repealed by the
    Juvenile Justice (Care & Protection of Children) Act, 2000,
    as well as, the subsequent amendment of 2006 read
c   along with the Juvenile Justice (Care and Protection of
    Children) Rules, 2007.The relevant provision which is
    required to be noted is Section 7A of the Act in the
    present form which came to be inserted by the
    amendment Act of 33/2006 w.e.f. 22.08.2006. The other
0   provisions are Section 2 (I) the definition of 'juvenile in
    conflict with law', Section 20 of the Act and Rule 12 of the
    Juvenile Justice (Care and Protection of Children) Rules,
    2007 which prescribe the procedure to be followed in the
    matter of determination of age. The application of the
E   above provisions in the light of the subsequent
    amendment to the Act introduced in the year 2006 and
    the Rules introduced in the year 2007 came to be
    considered in detail by this Court in Hari Ram's case
    wherein it was held that all persons who were below the
F   age of 18 years on the date of commission of the offence
    even prior to 1.4.2001, would be treated as juveniles, even
    if the claim of juvenility was raised after they had attained
    the age of 18 years on or before the date of
    commencement of the Act and were undergoing
G   sentence upon being convicted. [Paras 8, 9, 10 and 12)
    [442-E-H; 443-A-B; 444-G-H; 445-A]

        3.1. Going by Rule 12 of the Juvenile Justice (Care
    and Protection of Children) Rules, 2007, in particular, sub-
    Rule (3), the age determination inquiry should be
H
          VIJAY SINGH v. STATE OF DELHI                    437

conducted by the Court or by the Board or the Committee            A
by seeking evidence by obtaining (a) (i) the matriculation
or equivalent certificate, if it is available; and in the
absence whereof; ii) the date of birth certificate from the
School (other than a play school) first attended; and in
the absence whereof; iii) the birth certificate given by a         B
corporation or municipal authority or a panchayat; b) and
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         C
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. [Para 14] [445-B-E]                 D

     3.2. Going by sub-rule 3(a)(ii) of aforesaid Rule 12, the
date of birth certificate from the school (other than a play
school) first attended, comes at the second stage in the
order of priority for consideration to ascertain the age of        E
accused claiming to be a juvenile. In the case on hand,
the appellant does not claim to be a matriculate.
Therefore, the question of matriculation or equivalent
certificate and its availability does not arise. The present
claim as a juvenile is based on the School Leaving                 F
Certificate issued by the school in which the appellant
stated to have studied up to 5th class. As per the said
certificate, the date· of birth recorded in the school
admission register and the corresponding entry in the
School Leaving Certificate was 01.12.1981. The appellant           G
stated to have joined the school on 01.08.1989 and left
the school after subsequently completing his 5th
standard on 01.07 .1992. The correctness of the said
certificate as examined by the District Judge (as directed
by this Court ) has to be seen from the report dated               H
    438      SUPREME COURT REPORTS              [2012) 7 S.C.R.


A 26.03.2012. The Principal/Head Master of the School also
  verified the admission register. The counterfoil of the said
  School Leaving Certificate is placed before this Court. A
  perusal of the report also discloses that the certificate
  was genuine, that the date of birth record therein has
B been found to be correct and once the said position
  could be ascertained based on the above report, applying
  Rule 12 (3) as well as sub-rules (4) and (5) the said Rule
  read along with Section 7A of the Act the appellant on
  11.03.1998 was 16 years 3 months and 10 days old. The
C appellant, therefore, is covered by the decision of this
  Court in Hari Ram case. Since the appellant was below
  18 years of age on the date of commission of the offence,
  the provisions of the Act would apply in full force in his
  case. [Para 15) [445-F-H; 446-A-D]
D
       Hari Ram v. State of Rajasthan and'Anr. 2009 (13) SCC
  211: 2009 (7) SCR 623 - relied on.

       4. Having regard to the above conclusion, in the
  normal course this Court would have remitted the matter
E to the Juvenile Justice Court for disposal in accordance
  with law. However, since the offence was alleged to have
  been committed more than 10 years ago and the
  appellant would have now crossed the age of 30 years,
  there is no point in remitting the matter back to the
F Juvenile Justice Court. Instead, appropriate orders can
  be passed by this Court itself. It is clear that the appellant
  was below 18 years of age on the date of commission of
  offence and the Juvenile Justice Act would apply in full
  force in his case. While upholding the conviction imposed
G on the appellant, the sentence imposed on him is set
  aside and it is directed that he be released forthwith, if
  not required in any other case. [Paras 16, 23) [446-D-E;
  G-H; 447-A; 454-A-B]

H         Jayendra & Anr. v. State of Uttar Pradesh 1981 (4) SCC
          VIJAY SINGH v. STATE OF DELHI                  439


 149; Bhoop Ram v. State of UP. 1989 (3) SCC 1; Bhola          A
 Bhagat v. State of Bihar 1997 (8) SCC 720: 1997 (4) Suppl.
 SCR 711; Pradeep Kumar v. State of U. P. 1995 Suppl.(4)
 SCC 419; Upendra Kumar v. State of Bihar 2005 (3) SCC
 592 and Vaneet Kumar Gupta alias Dharminder v. State of
.Punjab 2009 (17) SCC 587 - relied on.                         B
                    Case Law Reference:
   2009 (7) SCR 623          relied on     Para 10, 15
   1981 (4) sec 149         relied on      Paras 16,17,        c
                                              18, 19
   1989 (3) sec 1            relied on     Paras 16, 18,
                                              19, 21
  1997 (4) Suppl. SCR 711 relied on        Paras 16,19,        D
                                              20, 21
  1995 Suppl.(4) SCC 419 relied on         Paras 16, 19
  2005 (3) sec 592          relied on      Paras 16, 21
  2009 (17) sec 587         relied on      Paras 16, 22        E

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1322 of 2012.

    From the Judgment & Order dated 07.01.2011 of the High     F
Court of Delhi at New Delhi in Crl. Appeal No. 669/99.

    V.K. Shukla, A.K. Tripathi, N.K. Neeraj, Varinder Kumar
Sharma for the Appellant.

     B. Chahar, Anjani Aiyagari, Priyanka Mathur, B.V.         G
Balramdas,. Anil Katiyar for the Respondent.

    The Judgment of the Court was delivered by


                                                               H
    440        SUPREME COURT REPORTS                [2012] 7 S.C.R.


A         FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Leave
    granted.

          The sole accused is the appellant herein. The challenge
    is to the judgment of the High Court of Delhi in Crl.A.669/1999
    dated 07.01.2011 by which the conviction and sentence of
8
    rigorous imprisonment for a period of five years imposed on
    the appellant for an offence punishable under Section 307, IPC
    and a fine of Rs.200/- with a default sentence of further rigorous
    imprisonment for 15 days came to be confirmed.

C      2. At the time of filing of the Special Leave Petition in this
  matter, the point raised was that the petitioner (appellant) was
  a juvenile on the date of commission of the offence and reliance
  was placed upon the School Leaving Certificate issued by the
  Principal/Head Master of Primary School, Chitayan, Distt.
D Mainpuri, Uttar Pradesh. The date of birth of the petitioner was
  noted as 01.12.1981. The alleged offence was stated to have
  been committed on 11.03.1998 and if the date of birth noted
  in the certificate is found to be true, the petitioner would have
  been 16 years 3 months and 10 days on the date of incident,
E namely, 11.03.1998.

       3. On hearing the learned counsel for the appellant, by an
  order dated 01.08.2011, while taking the said certificate on
  record, since for the first time such a claim was raised, the
  District and Sessions Judge, ltawa, Uttar Pradesh was directed
F to summon the Principal along with the original admission/
  School Leaving Registers and was directed to submit a report.
  Thereafter a report was received from the District and Sessions
  Judge, ltawa stating that prima facie the date of birth of the
  appellant appeared to be 01.12.1981. However, after
G examining the original records forwarded by the learned District
  Judge, ltawa, it was noticed that the report was not a full-fledged
  one.

      4. The learned District Judge was, therefore, directed to
H examine the issue as to whether the appellant was a juvenile
          VIJAY SINGH v. STATE OF DELHI                      441
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
on 11. 03.1998, by summoning the parties before it and also          A
examine any other document, to adduce and submit a report
within a period of six weeks to the Court. The said order was
passed on 30.01.2012. Pursuant to the said directions, the
learned District Judge has now filed a detailed report dated
26.03.2012. A perusal of the report discloses that the Principal/    B
Head Master of Primary School, Chitayan, Distt. Mainpuri, Uttar
Pradesh was examined as CW-1 on 05.03.2012, who is stated
to have produced the counter foil of the School Leaving
Certificate relating to the appellant marked as Exhibit CW-1/A
according to which the date of birth of the appellant was            C
01.12.1981. The document also disclosed that the appellant
was admitted to the school on 01.08.1989 and relieved from
the school on 01.07.1992 after passing 5th standard. According
to him, the Admission Register also disclosed that the date of
birth of the appellant was noted as 01.12.1981.
                                                                     D
     5. The learned District Judge, apart from ascertaining the
said facts from the records, stated to have referred the appellant
for examination by the Medical Board consisting of Dr. Sunil
Kakkar (CW-2), Dr. Akansha (CW-3), Dr. Sameer Dhari (CW-
4) and Dr. Kumar Narender Mohan (CW-5). Dr. Sunil Kakkar             E
(CW-2), HOD Radiology, Chairman, Standing Committee Age
Determination Record stated before the learned District Judge
that the appellant was examined by the Board on 01.03.2012
by the members of the Board consisting of a Physician, Dentist
and another radiologist. On such examination, as per the bone        F
age report (Exhibit CW2/A), the Board opined that the age of
the appellant was above 22 years and below 25 years as on
the date of his examination, namely, on 01.03.2012. The other
members of the Medical Board also confirmed the said view
of the Medical Board.                                                G

     6. Based on the above factors, the District Judge has
returned a finding that as on the date of the incident, namely,
11.03.1998, the age of the appellant was less than 18 years
and, therefore, he was a 'juvenile' on that date. The offence
                                                                     H
    442     SUPREME COURT REPORTS                 [2012] 7 S.C.R.


A   alleged against the appellant was that on 11.03.1998, he gave
    knife blows on the person of Shiv Shankar (PW-4) who
    demanded repayment of the money (Rs.3,000/-) lent to the
    appellant; that immediately after the occurrence since the
    injured was not fit for giving any statement, based on the
8   statement of Subhash (PW-2), the FIR was registered and after
    the completion of investigation, the charge sheet was filed.

       7. Having regard to the overwhelming evidence led before
  the trial CoJrt and on being convinced of the proof of guilt
  against the appellant, the appellant was convicted for the
C offence under Section 307, IPC imposing a sentence of five
  years' rigorous imprisonment with a fine of Rs.200/- with a
  default sentence of 15 days' rigorous imprisonment. The High
  Court, on a detailed analysis of the evidence available on
  record and the injuries sustained by the vicitir:n-PW-4, which was
D supported by medical evidence, dismissed the appeal. In such
  circumstances, we do not find any scope to interfere with the
  order of conviction imposed on the appellant.

       8. In fact, as stated earlier this Special Leave Petition was
E entertained on 30.09.2011 since it was for the first time argued
  before this Court that the appellant was a juvenile on the date
  of occurrence as per the date of birth recorded in the School
  Leaving Certificate. When we consider the said submission in
  the light of the provisions of the Juvenile Justice Act, 1986
F (hereinafter called the Act) as repealed by the Juvenile Justice
  (Care & Protection of Children) Act, 2000, as well as, the
  subsequent amendment of 2006 read along with the Juvenile
  Justice (Care and Protection of Children) Rules, 2007, it has
  now become incumbent upon this Court to consider the said
  contention raised on behalf of the appellant in order to find out
G the correctness of the benefit claimed as a 'juvenile'.

       9. The relevant provision which is required to be noted is
  Section 7A of the Act in the present form which came to be
  inserted by the amendment Act of 33/2006 w.e.f. 22.08.2006.
H The other provisions are Section 2 (I) the definition of 'juvenile
         VIJAY SINGH v. STATE OF DELHI                        443
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
in conflict with law', Section 20 of the Act and Rule 12 of the       A
Juvenile Justice (Care and Protection of Children) Rules, 2007
which prescribe the procedure to be followed in the matter of
determination of age.

     10. The application of the above provisions in the light of      8
the subsequent amendment to the Act introduced in the year
2006 and the Rules introduced in the year 2007 came to be
considered in detail by this Court in the reported decision in
Hari Ram v. State of Rajasthan and Anr.- 2009 (13) SCC 211.
While dealing with Section 7-A, this Court has held as under          C
in paragraph 23:

           "23. 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          D
    juvenility is raised. It provides for an inquiry, taking of
    evidence as may be necessary (but not affidavit) so as to
    determine the age of a person and to record a finding
    whether the person in question is a juvenile or not."
                                                                      E
      11. By making a reference to Rule 12 vis-a-vis Section 7-
A of the Act, Sub-rules(4) and (5) of Rule 12 were examined
and the position has been set out as under in paragraph 27 of
the judgment:

           "27.Sub-rules (4) and (5) of Rule 12 are of special        F
    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 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                 G
    under Chapter IV of the Act, has to pass a written order
    stating the age of the juvenile or stating the status qf the
    juvenile, and no further inquiry is to be conducted by the
    Court or Board after examining and obtaining any other
    documentary proof referred to in sub-rule (3) of Rule 12.         H
    444       SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A         Rule 12, therefore, indicates the procedure to be followed
          to give effect to the provisions of Section 7-A when a
          claim of juvenility is raised."

          12. Again in paragraph 39 by making reference to the
    explanation to Section 20 which was introduced by Amendment
8
    Act 33/2006, the applicability of the benefit of amended
    definition of Section 2 (I) was considered and the position was
    clarified as under in the said paragraph:

                 "39. The Explanation which was added in 2006,
C         make!s 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, even
          if the juvenile ceased to be a juvenile on or before 1-4-
D         2001, when the Juvenile Justice Act, 2000, came 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 committed.
          In fact, Section 20 enables the court to consider and
E         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 Juvenile Justice
          Board concerned for passing sentence in accordance with
F         the provisions of the Juvenile Justice Act, 2000."

         Ultimately in para 59, the position was set at rest to the
    following effect.

                "59. The law as now crystallized on a conjoint
G         reading of Section 2(k), 2(1), 7-A, 20 and 49 read with
          Rules 12 and 98, places beyond all doubt that all persons
          who were below the age of 18 years on the date of
          commission of the offence even prior to 1.4.2001, would
          be treated as juveniles, even if the claim of juvenility was
H         raised after they had attained the age of 18 years on or
         VIJAY SINGH v. STATE OF DELHI                            445
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
     before the date of commencement of the Act and were                  A
     undergoing sentence upon being convicted."

     13. In the light of the said legal position, the claim of the
appellant had to be necessarily considered and ascertain
whether he had been a 'juvenile', as claimed by him, on the date          B
of occurrence, namely, 11.03.1998.

      14. Going by Rule 12 of the Rules, in particular, sub-Rule
(3), the age determination inquiry should be conducted by the
Court or by the Board or the Committee by seeking evidence
by obtaining (a) (i) the matriculation or equivalent certificate, if      C
it is available; and in the absence whereof; ii) the date of birth
certificate from the School (other than a play school) first
attended; and in the absence whereof; iii) the birth certificate
given by a corporation or municipal authority or a panchayat;
b) and in the absence of either (i), (ii) or (iii) of clause (a) above,   D
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                    E
necessary, give benefit to the child or juvenile by considering
his/her age on lower side within the margin of one year.

      15. Going by sub-rule 3(a)(ii) of aforesaid Rule 12, the date
of birth certificate from the school (other than a play school) first
attended, comes at the second stage in the order of priority for          F
consideration to ascertain the age of accused claiming to be
a juvenile. In the case on hand, the appellant does not claim to
be a matriculate. Therefore, the question of matriculation or
equivalent certificate and its availability does not arise. The
present claim as a juvenile is based on the School Leaving                G
Certificate issued by the school in which the appellant stated
to have studied up to 5th class, namely, Primary School,
Chitayan, Distt. Mainpuri, Uttar Pradesh. As per the said
certificate, the date of birth recorded in the school admission
register and the corresponding entry in the School Leaving                H
    446     SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A Certificate was 01.12.1981. The appellant stated to have joined
  the school on 01.08.1989 and left the school after subsequently
  completing his 5th standard on 01.07 .1992. The correctness
  of the said certificate was examined by the learned District
  Judge, ltawa as directed by this Court as to be seen from the
8 report dated 26.03.2012. The Principal/Head Master of the
  School also verified the admission register. The counterfoil of
  the said School Leaving Certificate is placed before this Court.
  A perusal of the report also discloses that the certificate was
  genuine, that the date of birth record therein has been found to
C be correct and once the said position could be ascertained
  based on the above report, applying Rule 12 (3) as well as sub-
  rules (4) and (5) the said Rule read along with Section 7A of
  the Act the appellant on 11. 03.1998 was 16 years 3 months
  and 10 days old. The appellant, therefore, is covered by the
  decision of this Court in Hari Ram (supra). Since the appellant
D was below 18 years of age on the date of commission of the
  offence, the provisions of the Act would apply in full force in his
  case.

       16. Having regard to the above conclusion, in the normal
E course we would have remitted the matter to the Juvenile
  Justice Court, ltawa for disposal in accordance with law.
  However, since the offence was alleged to have been
  committed more than 10 years ago and having regard to the
  course adopted by this Court in certain other cases reported
F in Jayendra & Anr. v. State of Uttar Pradesh - 1981 (4) SCC
  149, Bhoop Ram v. State of U.P. - 1989 (3) SCC 1 which were
  subsequently followed in Bhola Bhagat v. State of Bihar- 1997
  (8) SCC 720, Pradeep Kumar v. State of U.P.- 1995 Suppl.(4)
  SCC 419, Upendra Kumar v. State of Bihar - 2005 (3) SCC
G 592 and Vaneet Kumar Gupta alias Dharminder v. State of
  Punjab - 2009 (17) sec 587, we are of the view that at this
  stage when the appellant would have now crossed the age of
  30 years, there is no point in remitting the matter back to the
  Juvenile Justice Court. Instead, following the above referred to
H
         VIJAY SINGH v. STATE OF DELHI                        44 7
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
decisions, appropriate orders can be passed by this Court             A
itself.

     17. In Jayendra (supra) the challenge arose under Uttar
Pradesh Children Act, 1951 which contained Section 27 which
mandated that no child shall be sentenced to any term of              8
imprisonment and if a child had been found to have committed
an offence punishable with imprisonment then he could be sent
to an approved school. However, it had been determined by
the Supreme Court through the reports of medical officers
taking into account the general appearance, physical                  C
examination and radiological findings of the appellant Jayendra,
that he had been a 'child' under the definition in the Act at the
time of commission of the offence. However, at the time of
hearing of the SLP by the Supreme Court, he had already
attained the age of 23. In .the light of that, the Court upheld the
conviction of the appellant Jayendra, but quashed the sentence        D
imposed on him and directed that he be released forthwith. The
Court observed as under:-

           "3. Section 2(4) of the Uttar Pradesh Children Act,
    1951 (U.P. Act 1of1952) defines a child to mean a person          E
    under the age of 16 years. Taking into account the various
    circumstances on the record of the case we are of the
    opinion that the appellant Jayendra was a child within the
    meaning of this provision on the date of the offence.
    Section 27 of the aforesaid Act says that notwithstanding         F
    anything to the contrary in any law, no court shall sentence
    a child to imprisonment for life or to any term of
    imprisonment. Section 2 provides, insofar as it is material,
    that if a child is found to have committed an offence
    punishable with imprisonment, the court may order him to          G
    be sent to an approved school for such period of stay as
    will not exceed the attainment by the child of the age of
    18 years. In the normal course, we would have directed that
    the appellant Jayendra should be sent to an approved
    school but in view of the fact that he is now nearly 23 years     H
    of age, we cannot do so.
    448      SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A               4. For these reasons, though the conviction of the
          appellant Jayendra has to be upheld, we quash the
          sentence imposed upon him and direct that he shall be
          released forthwith."

8        18. In Bhoop Ram (supra) also the case arose under the
    Uttar Pradesh Children Act, 1951. The controversy there was
    surrounding the question whether the appellant had actually
    been a juvenile/child under the definition of the Act at the time
    of commission of the offence. Although such a plea had been
C   taken before both the trial Court as also the Sessions Court,
    the trial Court had merely taken into account such a plea for
    the purpose of awarding a reduced sentence of life
    imprisonment instead of death penalty for the offences he had
    been charged with and convicted for. When the appeal reached
    the Supreme Court, this Court directed an enquiry by the
D   Sessions Judge to determine if the appellant had been actually
    been a child at the time of the incident. The Sessions Judge
    conducted an enquiry, taking into account the opinion of the
    Chief Medical Officer and the school certificate that had been
    produced by the appellant, and concluded that the appellant had
E   not been a 'child' at the concerned time. However, the Supreme
    Court rejected the finding of the Sessions Judge being based
    on surmises and essentially relying upon the school certificate
    produced by the appellant to conclude that he indeed had been
    a 'child' at the time when the offence had been committed. On
F   the question of sentencing, this Court followed the precedent
    in Jayendra (supra) and quashed the sentence, observi~g:-

          "8. Since the appellant is now aged more than 28 years
          of age, there is no question of the appellant now being sent
          to an approved school under the U.P. Children Act for
G
          being detained there. In a somewhat similar situation, this
          Court held in Jayendra v. State of U.P. that where an
          accused had been wrongly sentenced to imprisonment
          instead of being treated as a "child" under Section 2(4)
          of the U.P. Children Act and sent to an approved school
H
          VIJAY SINGH v. STATE OF DELHI                      449
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
     and the accused had crossed the maximum age of                  A
     detention in an approved school viz. 18 years, the course
     to be followed is to sustain the conviction but however
     quash the sentence imposed on the accused and direct
     his release forthwith. Accordingly, in this case also, we
     sustain the conviction of the appellant under all the charges   B
     framed against him but however quash the sentence
     awarded to him and direct his release forthwith. The
     appeal is therefore partly allowed insofar as the sentence
     imposed upon the appellant are quashed."

     19. In Bhola Bhagat (supra) this Court had discussed the        C
present issue at hand at quite some length. Three of the
appellants had taken the plea of juvenility in assailing the order
of the High Court sentencing them to imprisonment for life for
offences under Section 302/149, IPC. The Supreme Court
agreed with the findings of the lower Courts as regards the          D
involvement of the appellants in the commission of the offence
and held that the same had been established beyond
reasonable doubt. However, on the question of sentencing, the
Court looked into the plea of juvenility as had been claimed by
the appellants. The Court had noted the interplay of the two Acts    E
in question viz. The Bihar Children Act, 1982 and the Juvenile
Justice Act, 1986 and that the Bihar Act had already been in
force at the time of.the commission of the offence. It took note
of the decisions of this Court in Bhoop Ram (supra) and
Jayendra (supra) and emphasized that in these cases although         F
the conviction was sustained the sentence had been quashed
taking into account tt,e fact that the appellants had crossed the
age of juvenility and could not be sent to an 'approved school'
as had been contemplated under the relevant Children's Act.
The Court proceeded to discuss the three Judge Bench                 G
decision of this Court in Pradeep Kumar (supra) and quoted
the following from that case:-

           "12 ........... .

           "At the time of the occurrence Pradeep Kumar              H
    450      SUPREME COURT REPORTS                     (2012] 7 S.C.R.


A         appellant, aged about 15 years, was resident of Railway
          Colony, Naini, Krishan Kant and Jagdish appellants, aged
          about 15 years and 14 years, respectively, were residents
          of Village Chaka, P.S. Naini."

          At the time of granting special leave, two appellants therein
B
          produced school-leaving certificate and horoscope
          respectively showing their ages as 15 years and 13 years
          at the time of the commission of the offence and so far as
          the third appellant is concerned, this Court asked for his
          medical examination and on the basis thereof concluded
c         that he was also a child at the relevant time. The Court then
          held: (SCC p. 420, paras 3 and 4)

                "It is, thus, proved to the satisfaction of the Court that
          on the date of occurrence, the appellants had not
D         completed 16 years of age and as such they should have
          been dealt with under the U.P. Children Act instead of
          being sentenced to imprisonment on conviction under
          Sections 302/34 of the Act.

                Since the appellants are now aged more than 30
E
          years, there is no question of sending them to an approved
          school under the U.P. Children Act for detention.
          Accordingly, while sustaining the conviction of the
          appellants under all the charges framed against them, we
          quash the sentences awarded to them and direct their
F         release forthwith. The appeals are partly allowed in the
          above terms."

                                                  (Emphasis supplied)

G        20. The Court in its final conclusion in Bhola Bhagat
    (supra), adopted the same course as had been done in the
    aforementioned cases and observed:-

          "15. The correctness of the estimate of age as given by
          the trial court was neither doubted nor questioned by the
H         State either in the High Court or in this Court. The parties
         VIJAY SINGH v. STATE OF DELHI                      451
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
    have, therefore, accepted the correctness of the estimate      A
    of age of the three appellants as given by the trial court.
    Therefore, these three appellants should not be denied the
    benefit of the provisions of a socially progressive statute.
    In our considered opinion, since the plea had been raised
    in the High Court and because the correctness of the           B
    estimate of their age has not been assailed, it would be
    fair to assume that on the date of the offence, each one of
    the appellants squarely fell within the definition of the
    expression "child". We are under these circumstances
    reluctant to ignore and overlook the beneficial provisions     c
    of the Acts on the technical ground that there is no other
    supporting material to support the estimate of ages of the
    appellants as given by the trial court, though the
    correctness of that estimate has not been put in issue
    before any forum. Following the course adopted in              D
    Gopinath Ghosh, Shoop Ram and Pradeep Kumar cases
    while sustaining the conviction of the appellants under all
    the charges we quash the sentences awarded to them.

    16. The appellants Chandra Sen Prasad, Mansen Prasad
    and Bhola Bhagat, shall, therefore, be released from           E
    custody forthwith, if not required in any other case. Their
    appeals succeed to the extent indicated above and are
    partly allowed."

     21. In Upendra Kumar (supra), this Court reiterated the F
position that has been adopted in the aforementioned cases.
The appellant had been handed down a life imprisonment for
his conviction under Section 302 of the IPC. He had been a
juvenile, as under the Juvenile Justice (Care & Protection of .
Children) Act, 2000, on the day of the commission of the G
offence but, however, the protection of the Act had not been
afforded to him. Through the report of the Medical Board, it had
been fully established that the appellant was between the age
of 17 and 18 years on the date of the report which was dated
some three months after the day of incident in question. Even
                                                                   H
    452      SUPREME COURT REPORTS                 [2012] 7 S.C.R.


A the order of sentence recorded the age of the appellant as 17
  years. The Court thus concluded that the appellant was liable
  to be granted the protection of the Juvenile Justice Act, 2000.
  As regards the course to be adopted as a sequel to such
  conclusion, this Court referred to the earlier decisions such as
B in the case of Bhola Bhagat (supra), Bhoop Ram (supra) etc.
  The Court observed in this regard:-

          "4. Mr Sharan has cited various decisions but reference
          may be made only to the case of Bhola Bhagat v. State
          of Bihar since earlier decisions on the issue in question
c         have beEm noticed therein. In Bhola Bhagat case referring
          to the decisions in the case of Gopinath Ghosh v. State
          of WB., Bhoop Ram v. State of UP. and Pradeep Kumar
          v. State of UP. this Court came to the conclusion that the
          accused who were juvenile could not be denied the benefit
D         of the provisions of the Act then in force, namely, the
          Juvenile Justice Act, 1986.

          5. The course this Court adopted in Gopinath Ghosh case
          as also in Bhola Bhagat case was to sustain the conviction
E         but, at the same time, quash the sentence awarded to the
          convict. In the present case, at this distant time, the
          question of referring the appellant to the Juvenile Board
          does not arise. Following the aforesaid decisions, we
          would sustain the conviction of the appellant for the
F         offences for which he has been found guilty by the Court
          of Session, as affirmed by the High Court, at the same
          time, however, the sentence awarded to the appellant is
          quashed and the appeal is allowed to this extent.
          Resultantly, the appellant is directed to be released
          forthwith if not required in any other case."
G
        22. Similar course of action was taken in a recent decision
  of this Court in Vaneet Kumar Gupta alias Dharminder (supra).
  Challenge in that appeal was mainly on the award of sentence
  of life imprisonment to the appellant and to determine whether
H adequate material had been available on record to hold that
         VIJAY SINGH v. STATE OF DELHI                       453
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
the appellant had not attained the age of 18 years on the date       A
of commission of the offence. Upon an affidavit filed by the
Deputy Superintendent of Police pursuant to inquiries made by
him, it was reported that the age of the appellant as on the date
of occurrence had been about 15 years. The inquiry report
inspired confidence of the Court and the Court held that the         B
appellant cannot be denied the benefits of the Juvenile Justice
(Care & Protection of Children) Act, 2000. As regards the
question of sentence, this Court observed:-

           "12. The inquiry report, which inspires confidence,       C
    unquestionably establishes that as on the date of
    occurrence, the appellant was below the age of eighteen
    years; was thus, a "juvenile" in terms of the Juvenile Justice
    Act and cannot be denied the benefit of the provisions of
    the said Act. Therefore, having been found to have
    committed the aforementioned offence, for the purpose of         D
    sentencing, he has to be dealt with in accordance with the
    provisions contained in Section 15 thereof. As per clause
    (g) of sub-section (1) of Section 15 of the Juvenile Justice
    Act, the maximum period for which the appellant could be
    sent to a special home is a period of three years.               E

          13. Under the given circumstances, the question is
    what relief should be granted to the appellant at this
    juncture. Indisputably, the appellant has been in prison for
    the last many years and, therefore, at this distant time, it     F
    will neither be desirable nor proper to refer him to the
    Juvenile Justice Board. Accordingly, we follow the course
    adopted in Bhola Bhagat v. State of Bihar; sustain the
    conviction of the appellant for the offence for which he has
    been found guilty by the Sessions Court, as affirmed by          G
    the High Court and at the same time quash the sentence
    awarded to him.

          14. Resultantly, the appeal is partly allowed to the
    extent indicated above. We direct that the appellant shall
    be released forthwith, if not required in any other case."       H
    454     SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A      23. Having regard to such a course adopted by this Court
  in the above reported decisions, and in the case on hand
  based on the report of the District and Sessions Judge, we are
  also convinced that the appellant was below 18 years of age
  on the date of commission of offence and the Juvenile Justice
B Act would apply in full force in his case also. While upholding
  the conviction imposed on the appellant, we set aside the
  sentence imposed on him and direct that he be released
  forthwith, if not required in any other case. The appeal is partly
  allowed to the extent indicated above.
c B.B.B.                                   Appeal partly allowed.