VIMAL CHADHAversusVIKAS CHOUDHARY AND ANOTHER

                       [2008] 9 S.C.R. 911


                       VIMAL CHADHA                                 A
                               v
           VIKAS CHOUDHARY AND ANOTHER
             (Criminal Appeal No. 966 qf 2008)
                        MAY 27, 2008
                                                                    B
  [S.S. SINHA AND LOKESHWAR · SINGH PANTA, JJ.)

      Juvenile Justice (Care and Protection of Children) Act,
2000 - Determination of age of Juvenile in delinquency -
For the offence of murder coupled with abduction - Ransom           c
calls made even after killing of deceased - Held: Such of-
fence is a continuous offence - Hence the matter is required
to be determined in the light of s. 472 Cr P. C. - Code of Crimi-
nal Procedure, 1973 - s. 472.
     Respondent No. 1-accused was charged for the of- D
fence of abduction coupled with murder. Initially he did
not claim himself to be a juvenile. After the prosecution
adduced its evidence, accused filed an application for
transfer of the case to Juvenile Board. In support of age,
School Leaving Certificate was produced. Trial Court di- E
rected the Investigating Officer to submit a report. Trial
court since was not satisfied with the Report, directed
medical examination of the accused for determination of
his age. In view of the medial report, the trial court opined
that his age on the day of incident i.e. on 18.1.2003 was F
19 years and 5 months and held him to a major on that
date. The court denied to give weightage to the School
Leaving Certificate. High Court in Revision, setting aside
the order of trial court, remanded the matter back to trial
court for fresh consideration. Trial Court again held him G
to be a major on the basis of medical report. High Court in
Revision again set aside the order of the trial court. Hence
the present appeal.

                               911                                  H
    912       SUPREME COURT REPORTS                [2008] 9 S.C.R.


A         Allowing the appeal, the Court
         HELD: 1 Determination of age of a 'juvenile in delin-
  quency' must be determined as and when an application
  is filed. It is no longer res integra that the relevant date for
  determination of the age of the accused would be the date
B on which the occurrence took place. What would be the
  date on which offence has been committed in a given case
  has to be decided having regard to the fact situation ob-
  taining therein. [Paras 11 and 12] [918-E,F,G]

c         Pratap Singh v. state of Jarkhand and Anr. 2005 (3) SCC
    551 - relied on.
          2. Criminal Laws in India contemplate a continuing
    offence. If an offence has been a continuing offence, then
    the age of the juvenile in delinquency should be deter-
D   mined with reference to the date on which the offence is
    said to have been committed by the accused. It may be
    true that the prosecution proceeded on the basis that the
                                                                     •
    entire offence had taken place on 18th January, 2003.
    From a perusal of the charge-sheet, it appears that the
E   appellant had been getting calls for payment of ransom
    despite the fact that the deceased had, in the meanwhile,
    been killed. It is one thing to say that a missing report has
    been filed on a particular date but it is another thing to
    say that in a case of this nature when the actual offence(s)
F   had taken place would remain uncertain. Giving calls for
    payment of ransom is an offence. In case of murder
    coupled with abduction in a given case may be consid-
    ered to be a continuous offence. In view the facts of the
    case, the matter may be considered afresh in the light of
    the provisions of Section 472 Cr.P.C. by the trial court.
G
    [Paras 12 and 17] [918-G, 918-B-E, 922-C,D]
       Ravinder Singh Gorkhi v. State of UP. 2006 (5) SCC
  584; Jitendra Ram alias Jitu v. Stateof Jharkhand, 2006 (9)
  SCC 428; Jyoti Prakash Rai@ Jyoti Prakash v. State of Bihar,
H JT 2008 (3) SC 397; Batu @ Bakthvatcha/u vs. State of
              VIMAL CHADHA v. VIKAS CHOUDHARY AND                  913
                     ANOTHER [S.B. SINHA, J.]

     Tamilnadu, JT 2008 (2) SC 321; Jameel v. State of Maharashtra         A
     2007 (2) SCALE 32 - referred to.

          CRIMINAL APPELLATE JURISDICTION : Criminal Ap-
     peal No. 966 of 2008

           From the final Judgment and Order dated 11.09.2007 of           B
     the High Court of Delhi at New Delhi in Criminal Revision Peti-
     tion No. 156 of 2007.

          Kiran Suri for the Appellant.

          Subhash Kaushik, Rashmi Malhotra, D.S. Mahra, G.K.               c
     Kaushik, Anil Kumar Sharma, Vivek Sharma and K.S. Rana for
     the Respondents.

          Sunil Dutta Mishra for the lmpleading party.

          The Judgment of the Court was delivered by
                                                                           D
..        S.B. SINHA, J. 1. Leave granted .
           2. How to determine the age of a juvenile in delinquency
     within the meaning of the Juvenile Justice (Care and Protection
     of Children) Act, 2000 (for short 'the Act') is in question in this   E
     appeal which arises out of a judgment and order dated 11th Sep-
     tember, 2001 passed by a learned Single Judge of the Delhi
     High Court in Criminal Revision No. 156 of 2007 whereby and
     whereunder an order dated 201h January, 2007 passed by a
     learned Additional Session Judge, Delhi, was set aside.
                                                                           F
          3. Appellant before us is the first informant, the father of a
     boy, Parkash Chadha @ Sunny who was kidnapped for ran-
     som and later on murdered. He was aged about 20 years. He
     was found missing after he had gone out with his friends on 18th
     January, 2003. A missing report was lodged on the said date. G
     On or about 19th January, 2003, Respondent No.1 was sus-
     pected of involvement in the said crime by the police. He, on
     the basis of the investigation carried out for the said purpose
     charge-sheeted for commission of offence under Sections 302/
     364/34 of the Indian Penal Court by the Court. Although the first H
    914        SUPREME COURT REPORTS                    [2008] 9 S.C.R.


A information report was lodged on 19th January, 2003, the re-
  spondent No.1 was arrested on 4th May, 2003. A charge sheet
  was filed on 22nd July, 2003 wherein it was recorded that calls
  for payment of ransom were being made from time to time and
  last of such c_all for payment of ransom was received on 11th
B March, 2003. In regard to the finding out of the dead body of
  Parakh Chadha DD No. 40 under Section 302/201 of the In-
  dian Penal Code was separately registered.
         4. Upon his production, the respondent No.1 did not claim
  himself to be a juvenile. Charges were framed. The prosecu-
C tion started adduction of evidence on or about 3rd February,
  2005. Only on 31 •1 May, 2005 respondent No.1 herein filed an
  application for transfer of the case to the Juvenile Board on the
  plea that he was a 'juvenile' on the date of occurrence. A school
  leaving certificate was also produced. The Learned Additional
D Sessions Judge, trying the case, directed the Investigating Of-
  ficer to submit a report. The report pursuant thereto reads as           ·j
  under:-
          "Inquiry conducted into the matter revelas that Vikas
          Choudhary was admitted to Class-I in Lawrence School
E         of Ashok Vihar Phase-I, Delhi vide Admission N0.412.
          The date of birth showed in the register 20.01.1985. There
          is no birth certificate or other document available in support
          of date of birth. The date of admission is 17.04.1989".
F       5. The learned Sessions Judge was not satisfied there-
  with. The Investigating Officer was directed to get the respon-
  dent No.1 medically examined for getting his age determined.
  Pursuant thereto or in furtherance thereof, the respondent was
  examined medically. A report was submitted on 9th August, 2005.
G It reads as under:-
                            "HRH Medical Report
          Advise X-Ray as per dorsal spine, medial ends of clavicles,
          V-C Scapulae in bony feature upper ending element, lower
          ends of radius iliac crusts have fixed. Interior angle of
H
              VIMAL CHADHA v. VIKAS CHOUDHARYAND                   915
                     ANOTHER [S.B. SINHA, J.]

          .scapula, acromina processes, iliac crests, medial ends A
           of clavicles are ischail lubordsiles show fusion of their
           epiphysis. Upper end lower surfaces of vertera show no
           fusion of their end plates. Radiological ages in between
           22-25 yrs."
           The learned Judge on the said report, opined :-           B
...        "The report of Dr. P.K. Jain, Senior Radiologist about the
           bone age X-Ray determination of accused Vikas
           Choudhary received today. As per the report, the age of
           accused/applicant Vikas Choudhary on the date of his c
           examination was between 22-25 years. On calculation,
           the age of accused Vikas Choudhary on the date of
           incident, i.e. 18.01.2003 come to be 19 years and 5
           months. So far as the matriculation certificate of accused/
           applicant Vikas Choudhary is concerned, it is a common
                                                                          D
           practice that parents mention the age of their children on
  •        the lesser side in the school in order to avail the benefit in
           the services later on. Hence, no weightage can be given
           to the matriculation certificate in the presence of medical
           evidence, which shows that the applicant/accused Vikas
           Choudhary was more than 19 years of age on the date of E
           incidents.
           Considering the totality of the circumstances, I prima
           facisely hold that the present applicant/accused Vikas
           Choudhary was major at the time of occurrence. The             F
           application for sending him to the Juvenile Court stands
           dismissed."
           6. On a revision application filed thereagainst before the
      High Court, it by an order dated 31 •1 August, 2006 set aside the
      said order and directed :-                                        G
           "Anyhow, these are the matters which require a more
           detailed examination particularly in view of the fact that
           there exists a School Certificate wherein the date of birth
           of the petitioner has been given. The veracity of the School
                                                                          H
    916        SUPREME COURT REPORTS                    [2008] 9 S.C.R.


A         Certificate and Transfer Certificate submitted by the
          petitioner is not doubted. In these circumstances, the
          impugned order is set aside and the learned Additional
          Sessions Judge is directed to consider the matter afresh
          and if it appears to the learned Additional Sessions Judge
B         that the petitioner is a Juvenile on the basis of the material
          on records, he is required to be sent to the Juvenile Justice
          Board for further proceedings."



c         7. Again by reason of an order dated 20th January, 2007
    the learned Judge held:-

          "As per School Leaving Certificate, the date of birth of the
          accused is 20.01.1985. The only question before the
          Court is whether the School Leaving Certificate of the
D         accused has to be relied upon or Bone Age X-Ray record
          is to be relied upon. School Leaving Certificate of the           •
          accused was verified during the proceedings and report
          was filed by 10 wherein it has been mentioned that no birth
          certificate or other certificate is available in support of the
E         date of the accused in the School record."

         Relying on the decision of this Court in Pratap Singh v.
    State of Jharkhand and another, [ (2005) 3       sec
                                                      551 ] it was
    held:-

F         "From the judgments cited by the learned APP, it is clear
          that to ascertain the age of accused persons only School
          Leaving Certificate cannot be relied upon alone and the
          court has to see all the other facts and circumstances
          along with the other material placed on record. If assuming
          that the age of the accused was 22 years on the date of
G
          his examination as per Bone Age X-ray Examination
          report, after giving margin of two years from the age
          reported upto 25 years, even then n the date of alleged
          offence, he was more than 18 years of age. According to
          the conviction slip dated 04.05.2003, of the accused, which
H
              VIMAL CHADHA v. VIKAS CHOUDHARY AND             917
                     ANOTHER [S.B. SINHA, J.]

         was filled on the basis of the information given by the    A
         accused, the age of the accused has been mentioned as
         19 years and even after calculation, he was more than 18
         years of age on the date of alleged offence."
         8. Respondent moved the High Court again in revision.
                                                                    B
          By reason of the impugned judgment dated 11th Septem-
    ber, 2007, the High Court held :-

         "As far as the ossification test and the medical evidence
         is concerned there too the approach of the learned
         Additional Sessions Judge is in my opinion, erroneous. C
         According to the expert the petitioner was 22-25 years on
         the date of his examination i.e. 9.8.2005. The Learned
         Additional Sessions Judge acknowledged that such
         determination is a rough estimate and the individual would
         have to be given benefit by deducing some years but D
•        proceeded to do so from the outer age indicated. This is
         an incorrect approach as the juvenile is entitled to
         beneficial interpretation in such case. Therefore, the two
         years deduction made would have be (sic) from the lower
         age indicated namely, 22 years. That would mean that as E
         in August, 2005 the Petitioner was probably 20 years; as
         on the date of incident, (20.01.2003) in all probability he
         was less than 18 years. This interpretation is also in
         consonance with the claims based on the Board Certificate
         relied upon by the Petitioner.:                             F
        9. Mr. Sushi! Kumar, learned senior counsel appearing on
    behalf of the appellant would submit:-
         1)   That the High Court committed a serious error in
              passing the impugned judgment in so far as it failed G
              to take into consideration that from the conduct of
              the respondent No.1 it is evident that he did not claim
              to be a juvenile at the first instance and only when the
              trial started, he filed a purported school leaving
              certificate, which is suspect.
                                                                    H
    918        SUPREME COURT REPORTS                  [2008] 9 S.C.R.


A         2)   The approach of the High Court in analysing the
               medical report is not correct as the starting point
               should not have been taken to be 22 but should have
               been taken at 25.
          3)   In any event, having regard to the provisions
B              contained in Section 472 of the Code of Criminal
               Procedure the offence must be held to have been a
               continuous one and as ransom calls were being made
               till 11th May, 2003, the said date should be
               considered to be the cut off date for the purpose of
c              determination of the age.
          10. Mr. G.K. Kaushik, learned counsel appearing on be-
    half of respondent No.1 on the other hand would submit:


D
          1.   That at all stages 18th January, 2003 has been taken
               to be the date of occurrence, and even the charges
               have been framed on the premise that the occurrence
               had taken place on the said date.
                                                                         -
                                                                         ......


          2    The conclusion of the High Court that the appellant
               is, on 17th January, 2003, would be 17 years 5 months
E              corroborates with the medical report that if on the
               date of examination his examination, respondent
               No.1 is taken to be 22 years of age.
         11. Determination of age of a 'juvenile in delinquency' must
F be determined as and when an application is filed. In view of
  the decision of the Constitution Bench in Pratap Singh (supra)
  it is no longer res integra that that the relevant date for determi-
  nation is the age of the accused would be the date on which the
  occurrence took place.
G         12. What would be the date on which offence has been
    committed in a given case has to be decided having regard to
    the fact situation obtaining therein.
         Indisputably our Criminal Laws contemplate a continuing
    offence. Section 472 of the Code of Criminal Procedure reads
H
             VIMAL CHADHA v. VIKAS CHOUDHARY AND                  919
                    ANOTHER [S.B. SINHA, J.]

    as under:-                                                           A
         "472. Continuing offence.
         In the case of a continuing offence, a fresh period of
         limitation shall begin to run at every moment of the time
         during which the offence continues."                      B
           If an offence has been a continuing offence, then the age
    of the juvenile in delinquency should be determined with refer-
    ence to the date on which the offence is said to have been com-
    mitted by the accused. It may be true that the prosecution pro-
    ceeded on the basis that the entire offence had taken place on C
    18th January, 2003. We have, however, been taken through the
    charge-sheet, from a perusal whereof it appears that the appel-
    lant had been getting calls for payment of ransom despite the
    fact that the deceased had, in the meanwhile, been killed.
                                                                          D
          It is one thing to say that a missing report has been filed
    on a particular date but it is another thing to say that in a case of
    this nature when the actual offence(s) had taken place would
    remain uncertain.
         Giving calls for payment of ransom is an offence. In case       E
    of murder coupled with abduction in a given case may be con-
    sidered to be a continuous offence.
           13. This Court in a catena of decisions have laid down the
    criteria for determining the age. We would notice some of them.
~                                                                        F
         In Ravinder Singh Gorkhi v. State of UP, [(2006) 5
    SCC 584] this Court opined :-
         "38. The age of a person as recorded in the school register
         or otherwise may be used for various purposes, namely,
         for obtaining admission; for obtaining an appointment; for G
         contesting election; registration of marriage; obtaining a
         separate unit under the ceiling laws; and even for the
         purpose of litigating before a civil forum e.g. necessity of
         being represented in a court of law by a guardian or where
         a suit is filed on the ground that the plaintiff being a minor H
    920       SUPREME COURT REPORTS                    [2008] 9 S.C.R.


A         he was not appropriately represented therein or any
          transaction made on his behalf was void as he was a
          minor. A court of law for the purpose of determining the
          age of a party to the lis, having regard to the provisions of
          Section 35 of the Evidence Act will have to apply the same
B         standard. No different standard can be applied in case of
          an accused as in a case of abduction or rape, or similar
          offence where the victim or the prosecutrix although might
          have consented with the accused, if on the basis of the
          entries made in the register maintained by the school, a
c         judgment of conviction is recorded, the accused would be
          deprived of his constitutional right under Article 21 of the
          Constitution, as in that case the accused may unjustly be
          convicted.
          39. We are, therefore, of the opinion that until the age of
D         a person is required to be determined in a manner laid
          down under a statute, different standard of proof should
          not be adopted. It is no doubt true that the court must
          strike a balance. In case of a dispute, the court may
          appreciate the evidence having regard to the facts and
E         circumstances of the case. It would be a duty of the court
          of law to accord the benefit to a juvenile, provided he is
          one. To give the same benefit to a person who in fact is
          not a juvenile may cause injustice to the victim.
                                                [Emphasis supplied]
F                                                                         ...
          14. This aspect of the matter has also been considered in
    Jitendra Ram alias Jitu v. Stateof Jharkhand, [ (2006) 9 SCC
    428] wherein it was held :-
          "20. We are, however, not oblivious of the decision of this
G         Court in Bhola Bhagat v. State of Bihar wherein an
          obligation has been cast on the court that where such a
          plea is raised having regard to the beneficial nature of the
          socially oriented legislation, the same should be examined
          with great care. We are, however, of the opinion that the
H         same would not mean that a person who is not entitled
         VIMAL CHADHA v. VIKAS CHOUDHARY AND                  921
                ANOTHER [S.B. SINHA, J.]

     to the benefit of the said Act would be dealt with leniently A
     only because such a plea is raised. Each plea must be
     judged on its own merit. Each case has to be considered
     on the basis of the materials brought on records."
                                           (emphasis supplied)
                                                                     , B
     15. This Court in Jyoti Prakash Rai @ Jyoti Prakash v.
State of Bihar, [ JT 2008 (3) SC 397] held :-
     "It is in the aforementioned situation, we are of the opinion
     that the test which may be applied herein would be to take
     the average of the age as opined by both the medical             C
     boards. Even applying that test, the age of the appellant
     as on 01.04.2001 would be above 18 years.

     We, however, hasten to add that we have taken recourse
     to the said method only for the purpose of this case and         D
     we do not intend to lay down any general proposition of
     law in this behalf As indicated hereinbefore, in so doing,
     we have also taken into consideration the fact that the
     appellant had filed documents in support of his claim that
     he was a juvenile but the same were found to be forged
     and fabricated which is itself a factor to show that he was      E
     making attempts to obtain a benefit to which he might not
     have been entitled to."

      [ See also Balu@ Bakthvatchalu vs. State of Tamilnadu,
[ JT 2008 (2) SC 321 ].                                               F
     16. The question came up for consideration recently again
in Jameel v. State of Maharashtra, [2007 (2) SCALE 32]
wherein it has been held:-
     "9. It was furthermore submitted that although the age of G
     the appellant on the date of the occurrence was more than
     sixteen years but below eighteen years, having regard to
     the provision of the Juvenile Justice (Care and Protection
     of Children) Act, 2000, (for short, 'the 2000') it was
     imperative on the part of the court to follow the procedures H
    922       SUPREME COURT REPORTS                   [2008] 9 S.C.R.


A         laid down therein.                                             ..
          13. So far as the submission of the learned counsel in
          regard to the applicability of the 2000 Act, is concerned,
          it is not in dispute that the appellant on the date of
          occurrence had completed sixteen years of age. The
B         offence having been committed on 16.12.1989, the 2000
          Act has no application. In terms of Juvenile Justice Act,       ..
          1986, 'juvenile' was defined to mean "a body who had not
          attained the age of sixteen years or a girl who had attained
          the age of eighteen years:.
c
         17. We have, however, been informed that the effect of
  Model Rules having come into force and, if so, the applicability
  thereof may have to be considered in a given case but keeping
  in view the facts of the case, we are of the opinion that the mat-
D ter may be considered afresh in the light of the provisions of
  Section 472 of the Code of Criminal Procedure by the learned
  trial court.
         The judgment of the trial court is set aside accordingly.
    The appeal is allowed.
E        Applications for impleadment, modification/clarification of
    order dated 2.11.2007 and bail have become infructuous and
    are dismissed as such.
    K.K.T.                                          Appeal allowed.