VINOD KATARA Versus STATE OF UTTAR PRADESH

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 121 OF 2022

VINOD KATARA .…PETITIONER(S)

Versus

STATE OF UTTAR PRADESH ….RESPONDENT(S)

J U D G M E N T

J.B. PARDIWALA, J.

1. Personal liberty of a person is one of the oldest concepts to be

purported by national courts. As long ago as in 1215, the English

Magna Carta provided that:

"No free man shall be taken or imprisoned.... but..... by law

of the land."

2. Today, the concept of personal liberty has received a far more

expansive interpretation. The notion that is accepted today is that

liberty encompasses these rights and privileges which have long

been recognized as being essential to the orderly pursuit of

happiness by a free man and not merely freedom from bodily

restraint. There can be no cavil in saying that lodging juveniles in

adult prisons amounts to deprivation of their personal liberty on

multiple aspects.

3. This Writ Application under Article 32 of the Constitution is at

the instance of a convict accused undergoing life imprisonment for

the offence of murder seeking appropriate directions to the

respondent State of Uttar Pradesh to verify the exact age of the

convict on the date of the commission of the offence as it is the case

of the convict that on the date of the commission of the offence i.e.

10.09.1982 he was a juvenile aged around 15 years.

4. The facts giving rise to this litigation may be summarized as

under:

(a) The writ applicant along with other coaccused persons was

put to trial for the offence punishable under Section 302 r/w 34 of

the IPC;

(b) The 5th Additional Sessions Judge, Agra in the sessions trial

No. 535 of 1983 arising from the case crime no. 126 of 1982

registered with the Fatehpur Sikri District, Agra held the writ

applicant herein and the coaccused persons guilty of the offence of

murder and sentenced them to life imprisonment;

appeal before the Allahabad High Court by filing the Cr. Appeal No.

133 of 1986 questioning the legality and validity of the judgment &

order of conviction passed by the trial court dated 06.01.1986;

(d) The appeal was heard by the High Court and vide judgment

and order dated 04.03.2016 came to be dismissed thereby affirming

the judgment and order of conviction passed by the trial court;

(e) The writ applicant herein dissatisfied with the order passed by

the High Court dismissing his appeal, referred to above, came

before this Court by filing application for Special Leave to Appeal

(Crl.) No. 6048 of 2016. This Court vide order dated 16.08.2016

declined to grant leave as prayed for and dismissed the Special

Leave Petition.

5. It may not be out of the place to state at this stage that till this

Court dismissed the Special Leave Petition vide the order dated

16.08.2016, the writ applicant herein had not raised the question of

him being a juvenile on the date of the commission of the alleged

offence on 10.09.1982.

6. It appears that while the writ applicant was undergoing

sentence of life imprisonment, he was subjected to medical

examination by the Medical Board constituted by the respondent

State in pursuance of the judgment rendered by a Division Bench of

the Allahabad High Court in the Criminal Writ Public Interest

Litigation No. 855 of 2012, wherein the Division Bench of the

Allahabad High Court observed as under:

“Admittedly, as per the State's earlier affidavits, it was

claimed that there were 72 prisoners, who may have been

below 18 years in age and who are detained in the

various district or Central jails. Their break up was as

follows:

There were 23 such prisoners in Bareilly, 1 in

Lucknow, 4 in Allahabad, 2 in Etawah, 18 in Agra and

23 in Fatehgarh. One such prisoner Raju, who

belonged to Faizabad, whose age was determined to

be below 18 years by the Principal Magistrate, Juvenile

Justice Board was sent to Special Home after having

been detained for a long time in Faizabad jail.

Prima facie there appears to be some material for

suggesting that such prisoners, may have been below 18

years on the date of commission of the offences. After the

modification of the Juvenile Justice (Care and Protection of

Children) Act, 2000, (hereafter the Act) by Act No. 33 of

2006, under section 2 (l) a juvenile in conflict with law

means a juvenile who is alleged to have committed an

offence and has not completed eighteen years of age as on

the date of commission of such offence.

Under the proviso to section 7A (1) of the Act, it is

mentioned that a claim of juvenility may be raised before

any court and it shall be recognised at any stage, even

after the final disposal of the case, and such claim shall be

determined in terms of the provisions contained in this Act

and the Juvenile Justice (Care and Protection of Children)

Rules, 2007 (hereinafter the Rules).

We, therefore, direct the District Judges, who are

Chairpersons of their respective Legal Services Authorities

to directly oversee that efficient lawyers are appointed for

the purpose of providing legal aid to the prisoners, (who

are unable to engage private lawyers) who have been

mentioned in the list furnished by the State Government

and described to be below 18 years in age on the date of

commission of offence. The said legal aid lawyers should

get the ages of the prisoners ascertained by obtaining

documents and carrying out the other measures provided

under Rule 12 of the Juvenile Justice Act and Rules and

also on the lines suggested by the Delhi High Court in WP

Department of Women and Child Development and others)

in its order dated 11.5.2012. Obtaining information about

the probable date of birth of other siblings can also be

taken into account for ascertaining the true age of these

prisoners. The legal aid lawyers may also find out

whether there are other prisoners in jail, who may be

below 18 years of age on the date of commission of the

offence and who appear to be wrongly lodged in the

regular prisons for adults and the bases for their

conclusions.

Thereafter the matter may be placed before the Principal

Judge, Juvenile Justice Board for determining of the ages

as per the criteria set out above.

The prosecution and the complainant will also of course be

given an opportunity to examine their own witnesses and

to crossexamine the witnesses, who have been got

examined on behalf of the accused and for that purpose

notices of the proceedings before the JJ Board shall be

served on the complainant/ prosecution. As it is possible

that in some cases the prisoners mentioned in the State's

list may indeed be below 18 years in age on the date of

offence, but as the basis for arrival at the conclusion in the

State's list were usually some preliminary medical

examinations and no detailed steps for ascertaining ages

had been taken after hearing both parties, and it cannot

be ruled out that in certain cases extraneous measures

may have been used for reducing the ages, we think that

such an exercise as detailed above wherein the ages are

ascertained after hearing both parties was needed. The

said exercise is to be competed within a period of two

months and the reports submitted to this Court on its next

listing.

The District Judges/District Legal Services Authorities

shall take strict measures in future for ensuring that

prisoners below 18 years of age on the date of offence are

not lodged in adults prisons in violation of the Juvenile

Justice Act and Rules.

So far as district Allahabad is concerned, we direct the

District Judge, Allahabad to permit Sister Sheeba Jose,

Advocate and Shri Rohan Gupta, Advocate to visit and

interview the concerned prisoners for the purpose of

ascertaining their ages and for submitting the report to the

Court on the next date of listing.

It was further submitted by the learned counsel for the

petitioner that so far as the prisoner Raju is concerned,

whose age was determined to be below 18 years, he was

earlier lodged in Faizabad jail and was subsequently sent

to the Special Home. As he was convicted as far back as

in the year 2001 in a case under section 302 IPC. The

respondents should inform this Court about the total

period spent in jail by this prisoner and in case it exceeds

3 years (which was the maximum permissible sentence in

view of section 15 of the Act) the basis for his being

presently detained in the Special Home.”

Thus, vide the order dated 24.05.2012 referred to above

passed in a Public Interest Litigation being Criminal (PIL) Misc. W.P.

No. 855 of 2012, the Allahabad High Court directed the Juvenile

Justice Boards to hold an enquiry for determination of the age of

prisoners languishing in jails who claimed to have been juveniles in

conflict with the law.

7. The Medical Board subjected the writ applicant herein to

the Xrays of the skull and sternum. Upon medical examination of

the writ applicant herein, the Medical Board gave its report dated

10.12.2021 certifying that on 10.09.1982 i.e. the date of the

commission of the alleged offence, the writ applicant could have

been around 15 years of age as on the date of the medical

examination, the convict was around 56 years of age.

8. It appears that sometime later, the writ applicant was in a

position to obtain a document in the form of Family Register dated

02.03.2021 issued under the U.P. Panchayat Raj (Maintenance of

Family Registers) Rules, 1970. In the Family Register certificate, the

year of birth of the writ applicant herein is shown as 1968. If 1968

is the correct birth year of the writ applicant herein, then in 1982

he was about 14 years of age.

9. In such circumstances referred to above, the writ applicant is

here before this Court. He claims that as he was a juvenile on the

date of the commission of the alleged offence sometime in the year

1982, he could not have been put to trial along with other coaccused and should have been dealt with under the provisions of

the Juvenile Justice Act as prevailing at the relevant point of time.

It is the prayer of the writ applicant that the respondent State be

directed to get the claim of the writ applicant in regard to the

juvenility verified through the concerned Sessions Court or the

Juvenile Justice Board.

Submissions on behalf of the writ applicant convict:

10. Mr. Rishi Malhotra, the learned counsel appearing for the writ

applicant vehemently submitted that although till the dismissal of

the Special Leave Petition (Criminal) No. 6048 od 2016 by this

Court vide order dated 16.08.2016, the convict had not raised the

plea of juvenility, yet the law permits him to raise such a plea even

at this point of time having regard to the provisions of the Juvenile

Justice (Care and Protection of Children) Amendment Act, 2011. It

is submitted that there is clinching evidence on record as on date in

the form of certificate issued by the Medical Board as well as the

Family Register to indicate that in the year 1982 the writ applicant

could be around 15 years of age. The learned counsel would

vehemently submit that there is no good ground to discard the

certificate issued by the Medical Board as well as the extract of the

Family Register.

11. To fortify the aforesaid submissions, the learned counsel seeks

to rely upon a threeJudge Bench decision of this Court in the case

of Abuzar Hossain ALIAS Gulam Hossain v. State of West Bengal

reported in (2012) 10 SCC 489.

12. In such circumstances referred to above, the learned counsel

prays that there being merit in his writ petition, the same may be

allowed and appropriate directions may be issued to do complete

justice in the matter.

Submissions on behalf of the State

13. Mr. Ardhendhumauli Kr. Prasad, the learned Additional

Advocate General appearing for the State, on the other hand, has

vehemently opposed the present writ application. The learned

counsel would submit that the Family Register is not admissible in

evidence and the entries made therein are not decisive to determine

the age. It is argued that the writ applicant has not placed on

record any document of any educational institution. It is also

argued that no ossification test was undertaken or no modern

recognized method was adopted for the purpose of determination of

age.

14. The learned counsel appearing for the State invited the

attention of this Court towards the order passed by a Coordinate

Bench of this Court in the case of Ashok v. State of Madhya

Pradesh, Special Leave to Appeal (Criminal) No. 643 of 2020 dated

29.11.2021. The order passed by the Coordinate Bench referred to

above reads thus:

“By a judgment and order dated 29.07.1999, the

Additional Sessions Judge, Gohad, District Bhind, Madhya

Pradesh, convicted the petitioner inter alia for offence

under Section 302 of the Indian Penal Code and sentenced

him inter alia to life imprisonment in Sessions Trial No.

260 of 1997. In the cause title of the said judgment and

order, the petitioner has been described as Ashok, S/o

Balram Jatab age 16 yrs 9 months and 19 days, R/o

Village Anjani Pura, District Bhind.

The petitioner filed an appeal being Criminal Appeal No.

455 of 1999 challenging his conviction and sentence. The

said criminal appeal has been dismissed by the High

Court by an order dated 14.11.2017, which is impugned

in the Special Leave Petition (Crl.) No. 643 of 2020, filed by

the petitioner. The incident which led to the conviction of

the petitioner, took place on 26.07.1997.

The petitioner claims that the petitioner was born on

05.01.1981. The petitioner was, therefore, approximately

16 years and 7 months old on the date of the incident. In

this Court, the petitioner has for the first time contended

that he was a juvenile on the date of the incident. His

conviction and sentence are, therefore, liable to be setaside. The claim of juvenility was not raised in the High

Court. The learned Additional Advocate General,

appearing on behalf of the State argued that the claim of

juvenility has been raised for the first time in this special

leave petition. The Juvenile Justice Act, 1986, which was

in force on the date of commission of the offence as also

the date of the judgment and order of conviction and

sentence by the Sessions Court was repealed by the

Juvenile Justice (Care and Protection of Children) Act,

2000. The Act of 2000 received the assent of the President

of India on 30.12.2000 and came into force on

01.04.2001. The Act of 2000 defined juvenile in conflict

with the law to mean a juvenile, who was alleged to have

committed an offence and had not completed 18th year of

age as on the date of commission of such an offence.

Under the 1986 Act, the age of juvenility was up to the

16th year. Section 7A of the 2000 Act as inserted by Act

33 of 2006 with effect from 22.08.2006 provided as

follows:

“7A. Procedure to be followed when claim of juvenility

is raised before any Court.(1) Whenever a claim of

juvenility is raised before any court or a court is of the

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:

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 subsection(1), it shall forward the

juvenile to the Board for passing appropriate orders

and the sentence, if any, passed by a court shall be

deemed to have no effect.”

The claim of juvenility can thus be raised before any

Court, at any stage, even after final disposal of the case

and if the Court finds a person to be a juvenile on the date

of commission of the offence, it is to forward the juvenile to

the Board for passing appropriate orders, and the

sentence, if any, passed by a Court, shall be deemed to

have no effect. Even though the offence in this case may

have been committed before the enactment of the Act of

2000, the petitioner is entitled to the benefit of juvenility

under Section 7A of the Act of 2000, if on inquiry it is

found that he was less than 18 years of age on the date of

the alleged offence.

It is true as pointed out by the learned Additional

Advocate General appearing on behalf of the State that the

certificate of Akikrit Shash, High School School Endouri,

District Bhind, Madhya Pradesh relied upon by the

petitioner is stated to have been issued on 17.07.2021.

The said certificate does not specifically mention that the

date of birth 01.01.1982 had been entered at the time of

first admission of the petitioner at the primary school level.

Furthermore, there is a birth certificate issued by the Gram

Panchayat, Endouri, District Bhind, Madhya Pradesh

which indicates the date of birth of the petitioner as

05.01.1982 and not 01.01.1982 as recorded in the school

certificate referred to above.

The entry in the records of the Gram Panchayat, Endouri,

District Bhind, Madhya Pradesh, also do not appear to be

contemporaneous and the certificate has been issued in

the year 2017.

However, as pointed out by Mr. M.P. Parthiban, learned

counsel appearing on behalf of the petitioner that the

Sessions Court has recorded the age of the petitioner as

16 years, 9 months and 19 days. The petitioner has been

in actual custody for over three years.

The 2000 Act has been repealed and replaced by the

Juvenile Justice (Care and Protection of Children) Act,

2015. Section 21 of the 2015 Act provides as follows:

“21. Order that may not be passed against a child in

conflict with law. – No child in conflict with law shall be

sentenced to death or for life imprisonment without the

possibility of release, for any such offence, either under

the provisions of this Act or under the provisions of the

Indian Penal Code or any other law for the time being

in force.”

Considering that the Trial Court has recorded the age of

the petitioner as 16 years and odd, and has been in actual

custody in excess of three years, which is the maximum

for a juvenile, we deem it appropriate to grant the

petitioner interim bail on such terms and conditions as

may be imposed by the Sessions Court. We further direct

the Sessions Court to examine the claim of the petitioner to

juvenility in accordance with law, and submit a report to

this Court within one month from the date of

communication of this order.

The concerned Sessions Court shall be entitled to examine

the authenticity and genuineness of the documents sought

to be relied upon by the petitioner, considering that the

documents do not appear to be contemporaneous.

In the event the documents are found to be

questionable/unreliable, it will be open to the Sessions

Court to have the petitioner medically examined by taking

an ossification test or any other modern recognized

method of age determination.”

15. The aforesaid order passed by the Coordinate Bench has been

relied upon by the learned counsel appearing for the State to fortify

his submission that if at all the issue in regard to the juvenility of

the writ applicant requires consideration, the same should be by

the Sessions Court i.e. the Court which had originally tried the writ

applicant for the alleged offence.

16. In such circumstances referred to above, the learned counsel

appearing for the State prays that let the Sessions Court look into

the certificate issued by the Medical Board including the Family

Analysis:

17. Having heard the learned counsel appearing for the parties

and having gone through the materials on record, the only question

that falls for our consideration is that whether we should ask the

Sessions Court to examine the authenticity and genuineness of the

documents sought to be relied upon by the writ applicant in

support of his plea of being a juvenile on the date of the commission

of the alleged offence in the year 1982 and also subject the convict

to further ossification test?

18. The first and the foremost issue that arises for our

consideration in this writ petition is in regard to the applicability of

the provisions of the Juvenile Justice (Care and Protection of

Children) Act, 2000 (for short, “the 2000 Act”).

19. In the aforesaid context, we must first look into the relevant

dates as follows:

(a) The date of the incident is 10.09.1982. Thus, on the date

of incident even the Juvenile Justice Act, 1986 was not in

force. What was in force was the Children Act, 1960. The

Children Act, 1960 was a beneficial legislation enacted to

take care of the delinquent and neglected children. Under

the said Act, a child meant a person who had not attained

the age of 16 years in the case of a boy or 18 years in the

case of a girl.

(b) The petitioner herein came to be convicted by the trial

court vide judgment and order dated 06.01.1986. Even

on the date of conviction, the Juvenile Justice Act, 1986

was not in force. The Juvenile Justice Act, 1986 came in

force with effect from 01.12.1986. Thus, even on the date

of conviction, the Children Act, 1960 governed the field.

of Allahabad against the judgment and order of conviction

passed by the trial court came to be decided and was

ordered to be dismissed vide judgment and order dated

04.03.2016. It is relevant to note that on the date when

the appeal came to be dismissed by the High Court, the

2000 Act was in force.

(d) Special Leave to Appeal (Crl.) No. 6048 of 2016 filed by

the petitioner herein in this Court came to be dismissed

vide order dated 16.08.2016.

20. On and with effect from 15.01.2016, the Juvenile Justice (Care

and Protection of Children) Act, 2015 (for short, “the 2015 Act”)

came into force which repealed the 2000 Act. While the appeal of

the petitioner herein against his conviction and sentence was

pending in the High Court, the 2000 Act came into force which

repealed the Juvenile Justice Act, 1986. The 2000 Act inter alia

raised the age of juvenility from 16 to 18 years and in terms

of Section 20 of the 2000 Act, the determination of juvenility was

required to be done in all pending matters in accordance

with Section 2(1) of the 2000 Act.

21. The effect of Section 20 of the 2000 Act was considered

in Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551, and it

was stated as under:

“31. Section 20 of the Act as quoted above deals with the

special provision in respect of pending cases and begins

with a non obstante clause. The sentence

“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 came into

force” has great significance. The proceedings in respect

of a juvenile pending in any court referred to in Section

20 of the Act are relatable to proceedings initiated before

the 2000 Act came into force and which are pending

when the 2000 Act came into force. The term “any court”

would include even ordinary criminal courts. If the

person was a “juvenile” under the 1986 Act the

proceedings would not be pending in criminal courts.

They would be pending in criminal courts only if the boy

had crossed 16 years or the girl had crossed 18 years.

This shows that Section 20 refers to cases where a

person had ceased to be a juvenile under the 1986 Act

but had not yet crossed the age of 18 years then the

pending case shall continue in that court as if the 2000

Act has 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, shall forward the juvenile to the Board

which shall pass orders in respect of that juvenile.”

22. In Bijender Singh v. State of Haryana, (2005) 3 SCC 685,

the legal position as regards Section 20 was stated in following

words:

“8. One of the basic distinctions between the 1986 Act

and the 2000 Act relates to the age of males and females.

Under the 1986 Act, a juvenile means a male juvenile

who has not attained the age of 16 years, and a female

juvenile who has not attained the age of 18 years. In the

2000 Act, the distinction between male and female

juveniles on the basis of age has not been maintained.

The agelimit is 18 years for both males and females.

9. A person above 16 years in terms of the 1986 Act was

not a juvenile. In that view of the matter the question

whether a person above 16 years becomes “juvenile”

within the purview of the 2000 Act must be answered

having regard to the object and purport thereof.

10. In terms of the 1986 Act, a person who was not

juvenile could be tried in any court. Section 20 of the

2000 Act takes care of such a situation stating that

despite the same the trial shall continue in that court as

if that Act has not been passed and in the event, he is

found to be guilty of commission of an offence, a finding

to that effect shall be recorded in the judgment of

conviction, if any, but instead of passing any sentence in

relation to the juvenile, he would be forwarded to the

Juvenile Justice Board (in short “the Board”) which shall

pass orders in accordance with the provisions of the Act

as if it has been satisfied on inquiry that a juvenile has

committed the offence. A legal fiction has, thus, been

created in the said provision. A legal fiction as is well

known must be given its full effect although it has its

limitations. …………

11. ………….

12. Thus, by reason of legal fiction, a person, although

not a juvenile, has to be treated to be one by the Board

for the purpose of sentencing, which takes care of a

situation that the person although not a juvenile in terms

of the 1986 Act but still would be treated as such under

the 2000 Act for the said limited purpose.”

23. In Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344, the

determination of juvenility even after conviction was one of the

issues and it was stated:

“11. It is plain from the language of the Explanation

to Section 20 that in all pending cases, which would

include not only trials but even subsequent proceedings

by way of revision or appeal, etc., the determination of

juvenility of a juvenile has to be in terms of clause (l)

of Section 2, even if the juvenile ceases to be a juvenile on

or before 142001, when the Act of 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.

12. Clause (l) of Section 2 of the Act of 2000 provides that

“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. Section 20 also enables the

court to consider and determine the juvenility of a person

even after conviction by the regular court and also

empowers the court, while maintaining the conviction, to

set aside the sentence imposed and forward the case to

the Juvenile Justice Board concerned for passing

sentence in accordance with the provisions of the Act of

2000.”

24. Similarly, in Kalu v. State of Haryana , (2012) 8 SCC 34,

this Court summed up as under:

“21. Section 20 makes a special provision in respect of

pending cases. It states that notwithstanding anything

contained in the Juvenile Act, all proceedings in respect

of a juvenile pending in any court in any area on the date

on which the Juvenile Act comes into force in that area

shall be continued in that court as if the Juvenile 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 the Juvenile Act as if it had been

satisfied on inquiry under the Juvenile Act that the

juvenile has committed the offence. The Explanation

to Section 20 makes it 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 (l) of Section 2, even if the juvenile ceased to be

a juvenile on or before 142001, when the Juvenile Act

came into force, and the provisions of the Juvenile 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.”

25. It is thus well settled that in terms of Section 20 of the 2000

Act, in all cases where the accused was above 16 years but below

18 years of age on the date of occurrence, the proceedings pending

in the Court would continue and be taken to the logical end subject

to an exception that upon finding the juvenile to be guilty, the

Court would not pass an order of sentence against him but the

juvenile would be referred to the Board for appropriate orders under

the 2000 Act.

26. Thus, in view of the aforesaid discussion, we now proceed to

consider the matter further keeping in view the 2000 Act.

27. Section 7A of the 2000 Act reads as under:

“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:

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 subsection (1), it shall

forward the juvenile to the Board for passing appropriate

orders and the sentence, if any, passed by a court shall be

deemed to have no effect.”

28. From a reading of Section 7A what becomes very obvious is

that whenever a claim of juvenility is raised, an inquiry has to be

made and such inquiry would take place by receiving evidence

which would be necessary but not an affidavit so as to determine

the age of such person.

29. Reference is also required to be made to Chapter II of the

Juvenile Justice (Care and Protection of Children) Rules, 2007 (for

short “the 2007 Rules”), more particularly to Rule 3(1) and

Principles II, IV, XI, XII, XIII & XIV enumerated in Rule 3(2). The

said provisions and principles are extracted herein below

“3. Fundamental principles to be followed in

administration of these rules.—

(1) The State Government, the Juvenile Justice Board, the

Child Welfare Committee or other competent authorities or

agencies, as the case may be, while

(2) The following principles shall, inter alia, be

fundamental to the application, interpretation and

implementation of the Act and the rules made hereunder:

x x x x x

II. Principle of dignity and worth

(a) Treatment that is consistent with the Child's sense

of dignity and worth is a fundamental principle of

juvenile justice. This principle reflects the fundamental

human right enshrined in Article I of the Universal

Declaration of Human Rights that all human beings are

born free and equal in dignity and rights. Respect of

dignity includes not being humiliated, personal identity

boundaries and space being respected, not being

labeled and stigmatized, being offered information and

choices and not being blamed for their acts.

(b) The juvenile's or Child's right to dignity and worth

has to be respected and protected throughout the entire

process of dealing with the child from the first contact

with law enforcement agencies to the implementing of

all measures for dealing with the child.

III. Principle of Right to be heard

Every child's right to express his views freely in all matters

affecting his interest shall be fully respected through every

stage in the process of juvenile justice. Children's right to

be heard shall include creation of developmentally

appropriate tools and processes of interacting with the

child, promoting Children's active involvement in decisions

regarding their own lives and providing opportunities for

discussion and debate.

IV. Principle of Best Interest

(a) In all decisions taken within the context of

administration of juvenile justice, the principle of best

interest of the juvenile or the juvenile in conflict with law or

child shall be the primary consideration.

(b) The principle of best interest of the juvenile or juvenile

in conflict with law or child shall mean for instance that

the traditional objectives of criminal justice, retribution and

repression, must give way to rehabilitative and restorative

objectives of juvenile justice.

intellectual, social and moral development of a juvenile in

conflict with law or child so as to ensure the safety,

well being and permanence for each child and thus enable

each child to survive and reach his or her full potential.

x x x x x

XI. Principle of right to privacy and confidentiality

The juvenile's or Child's right to privacy and confidentiality

shall be protected by all means and through all the stages

of the proceedings ad care and protection processes.

XII. Principle of last resort

Institutionalization of a child or juvenile in conflict with law

shall be a step of the last resort after reasonable inquiry

and that too for the minimum possible duration.

XIII. Principle of repatriation and restoration

(a) Every juvenile or child in conflict with law has the right

to be reunited with his family and restored back to the

same socioeconomic cultural status that such juvenile or

child enjoyed before coming within the purview of the Act

or becoming vulnerable to any form of neglect, abuse or

exploitation.

(b) Any juvenile or child, who has lost contact with his

family, shall be eligible for protection under the Act and

shall be repatriated and restored, at the earliest, to his

family, unless such repatriation and restoration is likely to

be against the best interest of the juvenile or the child.

XIV. Principle of Fresh Start

(a) The principle of fresh start promotes new beginning for

the child or juvenile in conflict with law by ensuring

erasure of his part records.

(b) The State shall seek to promote measures for dealing

with children alleged or recognized as having impinged the

penal law, without resorting to juridical proceedings.”

b. It is submitted that Section 51 of the Act provides that

the report of a probation officer or a social worker shall be

confidential. It is further submitted that Rule 18 provides

for a procedure to be followed in respect of violation of

Section 21.”

30. Besides the International Convention and the provisions of the

2000 Act resply, it may be noted that the Constitutional guarantee

for the protection of the child is enshrined in Article 39 of the

Constitution. Article 39 reads as under:

“39. Certain principles of policy to be followed by the

State

(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.”

31. The procedure to be followed for the determination of age is

provided under Rule 12(3)(b) of the 2007 Rules, which reads as:

“12. Procedure to be followed in determination of

age.—(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;

(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.”

32. Subclause (3) of the aforesaid Rule clearly mandates that

while conducting an inquiry about the juvenility of an accused, the

Juvenile Justice Board would seek evidence by obtaining the

matriculation or equivalent certificates and in the absence whereof

the date of birth certificate from the school first attended and in

absence whereof the birth certificate given by a corporation or a

Municipal authority or a Panchayat. It is made clear by subclause

(b) that only in the absence of the aforesaid three documents,

medical information would be sought from a duly constituted

Medical Board which will declare the age of the juvenile or child.

Thus, it is only in the absence of the aforesaid documents that the

Juvenile Justice Board could have asked for medical

information/ossification test.

33. The 2000 Act stands repealed by the 2015 Act. The procedure

for determining the age is now part of Section 94 of the 2015 Act

which was earlier provided under the abovementioned Rule 12 of

the Rules.

Family Register

34. The Family Register Rules prescribes preparation of a Family

names and particulars of all persons ordinarily residing in the

village pertaining to the Gaon Sabha. Such Rules have been framed

under Section 110 of the U.P. Panchayat Raj Act, 1947. Such Rules

read as under:

“1. (1) These Rules may be called the U.P. Panchayat Raj

(Maintenance of Family Registers) Rules, 1970.

2. Form and preparation of family register.—A family

the names and particulars of all persons ordinarily

residing in the village pertaining to the Gaon Sabha.

Ordinarily one page shall be allotted to each family in the

for families belonging to the Scheduled Castes. The

3. General conditions for registration in the register.

—Every person who has been ordinarily resident within

the area of the Gaon Sabha shall be entitled to be

registered in the family register.

Explanation.—A person shall be deemed to be ordinarily

resident in a village if he has been ordinarily residing in

such village or is in possession of a dwelling house therein

ready for occupation.

4. Quarterly entries in the family register.—At the

beginning of each quarter commencing from April in each

year, the Secretary of a Gaon Sabha shall make necessary

changes in the family register consequent upon births and

deaths, if any occurring in the previous quarter in each

family. Such changes shall be laid before the next meeting

of the Gaon Panchayat for information.

5. Correction of any existing entry.—The Assistant

Development Officer (Panchayat) may on an application

made to him in this behalf order the correction of any

existing entry in the family register and the Secretary of

the Gaon Sabha shall then correct the Register

accordingly.

6. Inclusion of names in the Register.—(1) Any person

whose name is not included in the family register may

apply to the Assistant Development Officer (Panchayat) for

the inclusion of his name therein.

(2) The Assistant Development Officer (Panchayat) shall, if

satisfied, after such enquiry as he thinks fit that the

applicant is entitled to be registered in the Register, direct

that the name of the applicant be included therein and the

Secretary of the Gaon Sabha shall include the name

accordingly.

6A. Any person aggrieved by an order made under Rule 5

or Rule 6 may, within 30 days from the date of such order

prefer and appeal to the SubDivisional Officer whose

decision shall be final.

7. Custody and preservation of the register.—(1) The

Secretary of the Gaon Sabha shall be responsible for the

safe custody of the family register.

(2) Every person shall have a right to inspect the Register

and to get attested copy of any entry or extract therefrom

in such manner and on payment of such fees, if any, as

may be specified in Rule 73 of the U.P. Panchayat Raj

Rules.

FORM A

(See Rule 2)

***

Note.—In the remarks column the number and date of the

order, if any, by which any name is added or struck off

should be given along with the signature of the person

making the entry.”

35. A perusal of the above Rules indicate that one page is allotted

to each family and that any change in the family consequent upon

the births and deaths is required to be incorporated on such page.

The changes are also required to be laid before the next meeting of

the Gram Panchayat. Thus, it is evident that such Rules are

statutorily framed in pursuance of an Act. The entries in the

Panchayat as part of their official duty.

36. This Court in the case of Manoj v. State of Haryana,

reported in (2022) 6 SCC 187, observed in regard to the Family

“39. We are unable to approve the broad view taken by

the High Court in some of the cases that family register is

not relevant to determine age of the family members. It is a

question of fact as to how much evidentiary value is to be

attached to the family register, but to say that it is entirely

not relevant would not be the correct enunciation of law.

The register is being maintained in accordance with the

rules framed under a statute. The entries made in the

regular course of the affairs of the Panchayat would thus

be relevant but the extent of such reliance would be in

view of the peculiar facts and circumstances of each case.”

(Emphasis supplied)

37. In Abuzar Hossain (supra), this Court held as under:

“30. As a matter of fact, prior to the decisions of this Court

in Hari Ram [(2009) 13 SCC 211 : (2010) 1 SCC (Cri) 987]

and Akbar Sheikh [(2009) 7 SCC 415 : (2009) 3 SCC (Cri)

431] , a threeJudge Bench of this Court speaking through

one of us (R.M. Lodha, J.) in Pawan [(2009) 15 SCC 259 :

(2010) 2 SCC (Cri) 522] had considered the question

relating to admissibility of claim of juvenility for the first

time in this Court with reference to Section 7A. The

contention of juvenility was raised for the first time before

this Court on behalf of the two appellants, namely, A1

and A2. The argument on their behalf before this Court

was that they were “juvenile” within the meaning of the

2000 Act on the date of incident and the trial held against

them under the Code was illegal. With regard to A1, his

school leaving certificate was relied on while as regards A2, reliance was placed on his statement recorded under

Section 313 and the school leaving certificate. Dealing with

the contention of juvenility, this Court stated that the claim

of juvenility could be raised at any stage, even after final

disposal of the case. The Court then framed the question

in para 41 of the Report as to whether an inquiry should

be made or report be called for from the trial court

invariably where juvenility is claimed for the first time

before this Court.

31. It was held in Pawan, (2009) 15 SCC 259 that where

the materials placed before this Court by the accused,

prima facie, suggested that he was a “juvenile” as defined

in the 2000 Act on the date of incident, it was necessary to

call for the report or an inquiry to be made for

determination of the age on the date of incident. However,

where a plea of juvenility is found unscrupulous or the

materials lack credibility or do not inspire confidence and

even prima facie satisfaction of the court is not made out,

further exercise in this regard may not be required. It was

also stated that if the plea of juvenility was not raised

before the trial court or the High Court and is raised for the

first time before this Court, the judicial conscience of the

court must be satisfied by placing adequate material that

the accused had not attained the age of 18 years on the

date of commission of the offence. In the absence of

adequate material, any further inquiry into juvenility

would not be required.

32. Having regard to the general guidelines highlighted in

para 41 of Pawan case [(2009) 15 SCC 259 : (2010) 2 SCC

(Cri) 522] with regard to the approach of this Court where

juvenility is claimed for the first time, the Court then

considered the documents relied upon by A1 and A2 in

support of the claim of juvenility on the date of incident. In

respect of the two documents relied upon by A2, namely,

statement under Section 313 of the Code and the school

leaving certificate, this Court observed that the statement

recorded under Section 313 was a tentative observation

based on physical appearance which was hardly

determinative of age and insofar as school leaving

certificate was concerned, it did not inspire any confidence

as it was issued after A2 had already been convicted and

the primary evidence like entry from the birth register had

not been produced. As regards school leaving certificate

relied upon by A1, this Court found that the same had

been procured after his conviction and no entry from the

birth register had been produced. The Court was, thus, not

prima facie impressed or satisfied by the material placed

on behalf of A1 and A2. Those documents were not found

satisfactory and adequate to call for any report from the

Board or the trial court about the age of A1 and A2.”

In Para 39, the Court summarizes the legal position as under:

“39.1. A claim of juvenility may be raised at any stage

even after the final disposal of the case. It may be raised

for the first time before this Court as well after the final

disposal of the case. The delay in raising the claim of

juvenility cannot be a ground for rejection of such claim.

The claim of juvenility can be raised in appeal even if not

pressed before the trial court and can be raised for the

first time before this Court though not pressed before the

trial court and in the appeal court.

39.2. For making a claim with regard to juvenility after

conviction, the claimant must produce some material

which may prima facie satisfy the court that an inquiry

into the claim of juvenility is necessary. Initial burden has

to be discharged by the person who claims juvenility.

39.3. As to what materials would prima facie satisfy the

court and/or are sufficient for discharging the initial

burden cannot be catalogued nor can it be laid down as to

what weight should be given to a specific piece of evidence

which may be sufficient to raise presumption of juvenility

but the documents referred to in Rules 12(3)(a)(i) to (iii)

shall definitely be sufficient for prima facie satisfaction of

the court about the age of the delinquent necessitating

further enquiry under Rule 12. The statement recorded

under Section 313 of the Code is too tentative and may not

by itself be sufficient ordinarily to justify or reject the claim

of juvenility. The credibility and/or acceptability of the

documents like the school leaving certificate or the voters'

list, etc. obtained after conviction would depend on the

facts and circumstances of each case and no hardandfast rule can be prescribed that they must be prima facie

accepted or rejected. In Akbar Sheikh [(2009) 7 SCC 415 :

(2009) 3 SCC (Cri) 431] and Pawan [(2009) 15 SCC 259 :

(2010) 2 SCC (Cri) 522] these documents were not found

prima facie credible while in Jitendra Singh [(2010) 13

SCC 523 : (2011) 1 SCC (Cri) 857] the documents viz.

school leaving certificate, marksheet and the medical

report were treated sufficient for directing an inquiry and

verification of the appellant's age. If such documents prima

facie inspire confidence of the court, the court may act

upon such documents for the purposes of Section 7A and

order an enquiry for determination of the age of the

delinquent.

39.4. An affidavit of the claimant or any of the parents or

a sibling or a relative in support of the claim of juvenility

raised for the first time in appeal or revision or before this

Court during the pendency of the matter or after disposal

of the case shall not be sufficient justifying an enquiry to

determine the age of such person unless the circumstances

of the case are so glaring that satisfy the judicial

conscience of the court to order an enquiry into

determination of the age of the delinquent.

39.5. The court where the plea of juvenility is raised for

the first time should always be guided by the objectives of

the 2000 Act and be alive to the position that the

beneficent and salutary provisions contained in the 2000

Act are not defeated by the hypertechnical approach and

the persons who are entitled to get benefits of the 2000

Act get such benefits. The courts should not be

unnecessarily influenced by any general impression that

in schools the parents/guardians understate the age of

their wards by one or two years for future benefits or that

age determination by medical examination is not very

precise. The matter should be considered prima facie on

the touchstone of preponderance of probability.

39.6. Claim of juvenility lacking in credibility or frivolous

claim of juvenility or patently absurd or inherently

improbable claim of juvenility must be rejected by the court

at the threshold whenever raised.”

38. Justice T.S. Thakur (as His Lordship then was), by his

separate but concurring judgment, observed as under:

“43.2. The second factor which must ever remain present

in the mind of the Court is that the claim of juvenility may

at times be made even in cases where the accused does

not have any evidence showing his date of birth by

reference to any public document like the Register of Births

and Deaths maintained by the municipal authorities,

panchayats or hospitals nor any certificate from any

school, as the accused was never admitted to any school.

Even if admitted to a school no record regarding such

admission may at times be available for production in the

court. Again, there may be cases in which the accused

may not be in a position to provide a birth certificate from

the corporation, the municipality or the panchayat, for we

know that the registration of births and deaths may not be

maintained and if maintained may not be regular and

accurate, and at times truthful.

44. Rule 12(3) of the Rules makes only three certificates

relevant. These are enumerated in subrules 3(a)(i) to (iii) of

the Rule which reads as under:

“(3)(a)(i) the matriculation or equivalent certificates,

if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other

than a play school) first attended; and in the

absence whereof;

(iii) the birth certificate given by a corporation or a

municipal authority or a panchayat;

Nonproduction of the above certificates or any one of them

is not, however, fatal to the claim of juvenility, for subrule

(3)(b) to Rule 12 makes a provision for determination of the

question on the basis of the medical examination of the

accused in the “absence” of the certificates.

45. Rule 12(3)(b) runs as under:

“12.(3)(b) and only in the absence of either (i), (ii) or (iii) of

clause (a) above, the medical opinion will be sought from

a duly constituted Medical Board, which will declare the

age of the juvenile or child. In case exact assessment of

the age 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,”

The expression “absence” appearing in the above provision

is not defined under the Act or the Rules. The word shall,

therefore, be given its literal dictionary meaning which is

provided by Concise Oxford Dictionary as under:

“Absence.—Being away from a place or person; time

of being away; nonexistence or lack of; inattention

due to thought of other things.”

Black's Law Dictionary also explains the meaning of

“absence” as under:

“Absence.—(1) The state of being away from one's usual

place of residence. (2) A failure to appear, or to be

available and reachable, when expected. (3) Louisiana

law. The state of being an absent person.— Also termed

(in sense 3) absentia.”

46. It is axiomatic that the use of the expression and the

context in which the same has been used strongly

suggests that “absence” of the documents mentioned in

Rule 12(3)(a)(i) to (iii) may be either because the same do

not exist or the same cannot be produced by the person

relying upon them. Mere nonproduction may not,

therefore, disentitle the accused of the benefit of the Act

nor can it tantamount to deliberate nonproduction, giving

rise to an adverse inference unless the court is in the

peculiar facts and circumstances of a case of the opinion

that the nonproduction is deliberate or intended to either

mislead the court or suppress the truth. It is in this class of

cases that the court may have to exercise its powers and

discretion with a certain amount of insight into the realities

of life.

47. One of such realities is that illiteracy and crime have a

close nexus though one may not be directly proportional to

the other. Juvenile delinquency in this country as

elsewhere in the world, springs from poverty and

unemployment, more than it does out of other causes. A

large number of those engaged in criminal activities, may

never have had the opportunity to go to school. Studies

conducted by the National Crime Records Bureau (NCRB),

Ministry of Home Affairs, reveal that poor education and

poor economic set up are generally the main attributes of

juvenile delinquents. Result of the 2011 study further

show that out of 33,887 juveniles arrested in 2011, 55.8%

were either illiterate (6122) or educated only till the

primary level (12,803). Further, 56.7% of the total juveniles

arrested fell into the lowest income category. A similar

study is conducted and published by B.N. Mishra in his

book Juvenile Delinquency and Justice System, in which

the author states as follows:

“One of the prominent features of a delinquent is

poor educational attainment. More than 63 per cent

of delinquents are illiterate. Poverty is the main

cause of their illiteracy. Due to poor economic

condition they were compelled to enter into the

labour market to supplement their family income. It

is also felt that poor educational attainment is not

due to the lack of intelligence but may be due to lack

of opportunity. Although free education is provided

to Scheduled Castes and Scheduled Tribes, even

then, the delinquents had a very low level of

expectations and aspirations regarding their future

which in turn is due to lack of encouragement and

unawareness of their parents that they play truant.”

(emphasis supplied)

What should then be the approach in such cases, is the

question. Can the advantage of a beneficial legislation be

denied to such unfortunate and wayward delinquents?

Can the misfortune of the accused never going to a school

be followed or compounded by denial of the benefit that

the legislation provides in such emphatic terms, as to

permit an enquiry even after the last Court has disposed

of the appeal and upheld his conviction? The answer has

to be in the negative.

48. If one were to adopt a wooden approach, one could

say nothing short of a certificate, whether from the school

or a municipal authority would satisfy the court's

conscience, before directing an enquiry. But, then directing

an enquiry is not the same thing as declaring the accused

to be a juvenile. The standard of proof required is different

for both. In the former, the court simply records a prima

facie conclusion. In the latter, the court makes a

declaration on evidence, that it scrutinises and accepts

only if it is worthy of such acceptance. The approach at the

stage of directing the enquiry has of necessity to be more

liberal, lest, there is avoidable miscarriage of justice.

Suffice it to say that while affidavits may not be generally

accepted as a good enough basis for directing an enquiry,

that they are not so accepted is not a rule of law but a rule

of prudence. The Court would, therefore, in each case

weigh the relevant factors, insist upon filing of better

affidavits if the need so arises, and even direct, any

additional information considered relevant including the

information regarding the age of the parents, the age of

siblings and the like, to be furnished before it decides on a

case to case basis whether or not an enquiry under

Section 7A ought to be conducted. It will eventually

depend on how the court evaluates such material for a

prima facie conclusion that the court may or may not direct

an enquiry.” (Emphasis

supplied)

39. Thus, Section 7A(1) of the 2000 Act and the proviso thereto

provided that a claim of juvenility might be raised before any court

and it shall be recognized at any stage, even after the final disposal

of the case, and such claim shall be determined in terms of the

provisions contained in the 2000 Act and the Rules made

thereunder, even if the juvenile has ceased to be so, on or before the

date of commencement of the 2000 Act.

40. Subsection (2) of Section 7A mandates that if the Court finds

a person to be a juvenile on the date of the commission of offence

under subsection (1), it shall forward the juvenile to the Juvenile

Justice Board for passing an appropriate order, and the sentence, if

any, passed by a Court shall be deemed to have no effect.

41. Section 16 of the 2000 Act provides as hereunder:

“16. Order that may not be passed against juvenile.

—

(1) Notwithstanding anything to the contrary contained in

any other law for the time being in force, no juvenile in

conflict with law shall be sentenced to death or

imprisonment for any term which may extend to

imprisonment for life, or committed to prison in default of

payment of fine or in default of furnishing security:

Provided that where a juvenile who has attained the age

of sixteen years has committed an offence and the Board

is satisfied that the offence committed is of so serious in

nature or that his conduct and behaviour have been such

that it would not be in his interest or in the interest of other

juvenile in a special home to send him to such special

home and that none of the other measures provided under

this Act is suitable or sufficient, the Board may order the

juvenile in conflict with law to be kept in such place of

safety and in such manner as it thinks fit and shall report

the case for the order of the State Government.

(2) On receipt of a report from a Board under subsection

(1), the State Government may make such arrangement in

respect of the juvenile as it deems proper and may order

such juvenile to be kept under protective custody at such

place and on such conditions as it thinks fit:

Provided that the period of detention so ordered shall

not exceed in any case the maximum period provided

under Section 15 of this Act.”

42. The maximum period of detention in respect of a juvenile is

three years as provided in Section 15(1)(g). The said Section

provides that where the Juvenile Justice Board is, on inquiry,

satisfied that the juvenile has committed an offence, then

notwithstanding anything to the contrary contained in any other

law for the time being in force, the Juvenile Justice Board may, if it

thinks fit, make an order directing the juvenile to be sent to a

special home for a period of three years.

43. In view of Section 7A of the 2000 Act referred to hereinabove,

applicable to the writ applicant herein, the plea of juvenility could

be raised in any court, at any stage even after the final disposal of

the Special Leave Petition under Article 136 of the Constitution. In

the case of the writ applicant herein, his Special Leave Petition had

also been dismissed by this Court. However, this Court is still

obliged to consider the plea of juvenility taken by the writ applicant

and grant him appropriate relief. The fact that the 2000 Act has

later been replaced by the 2015 Act would make no difference.

44. In regard to the nature of the inquiry to be conducted by the

court in determining the age under Section 7A of the 2000 Act and

Rule 12, this Court in Ashwani Kumar Saxena v. State of

Mahya Pradesh, AIR 2013 SC 553, has held as follows:

“25. Section 7A, obliges the court only to make an inquiry,

not an investigation or a trial, an inquiry not under the

Code of Criminal Procedure, but under the JJ Act. The

criminal courts, Juvenile Justice Board, committees, etc.

we have noticed, proceed as if they are conducting a trial,

inquiry, enquiry or investigation as per the Code. The

statute requires the court or the Board only to make an

“inquiry” and in what manner that inquiry has to be

conducted is provided in the JJ Rules. Few of the

expressions used in Section 7A and Rule 12 are of

considerable importance and a reference to them is

necessary to understand the true scope and content of

those provisions. Section 7A has used the expressions

“court shall make an inquiry”, “take such evidence as may

be necessary” and “but not an affidavit”. The Court or the

Board can accept as evidence something more than an

affidavit i.e. the Court or the Board can accept documents,

certificates, etc. as evidence, need not be oral evidence.

26. Rule 12 which has to be read along with Section 7A

has also used certain expressions which are also to be

borne in mind. Rule 12(2) uses the expression “prima

facie” and “on the basis of physical appearance” or

“documents, if available”. Rule 12(3) uses the expression

“by seeking evidence by obtaining”. These expressions in

our view reemphasise the fact that what is contemplated

in Section 7A and Rule 12 is only an inquiry. Further,

the age determination inquiry has to be completed and age

be determined within thirty days from the date of making

the application; which is also an indication of the manner

in which the inquiry has to be conducted and completed.

The word “inquiry” has not been defined under the JJ Act,

but Section 2(y) of the JJ Act says that all words and

expressions used and not defined in the JJ Act but defined

in the Code of Criminal Procedure, 1973 (2 of 1974), shall

have the meanings respectively assigned to them in that

Code.

27. Let us now examine the meaning of the words

“inquiry”, “enquiry”, “investigation” and “trial” as we see

in the Code of Criminal Procedure and their several

meanings attributed to those expressions. “Inquiry” as

defined in Section 2(g) CrPC reads as follows:

2. (g) ‘inquiry’ means every inquiry, other than a

trial, conducted under this Code by a Magistrate or

court;”

The word “enquiry” is not defined under the Code of

Criminal Procedure which is an act of asking for

information and also consideration of some

evidence, may be documentary.

“Investigation” as defined in Section 2(h) CrPC reads

as follows:

2. (h) ‘investigation’ includes all the proceedings

under this Code for the collection of evidence

conducted by a police officer or by any person (other

than a Magistrate) who is authorised by a

Magistrate in this behalf;”

The expression “trial” has not been defined in the

Code of Criminal Procedure but must be understood

in the light of the expressions “inquiry” or

“investigation” as contained in Sections 2(g) and 2(h)

of the Code of Criminal Procedure.

28. The expression “trial” has been generally understood

as the examination by court of issues of fact and law in a

case for the purpose of rendering the judgment relating to

some offences committed. We find in very many cases that

the court/the Juvenile Justice Board while determining the

claim of juvenility forget that what they are expected to do

is not to conduct an inquiry under Section 2(g) of the Code

of Criminal Procedure, but an inquiry under the JJ Act,

following the procedure laid down under Rule 12 and not

following the procedure laid down under the Code.

29. The Code lays down the procedure to be followed in

every investigation, inquiry or trial for every offence,

whether under the Indian Penal Code or under other Penal

laws. The Code makes provisions for not only

investigation, inquiry into or trial for offences but also

inquiries into certain specific matters. The procedure laid

down for inquiring into the specific matters under the Code

naturally cannot be applied in inquiring into other matters

like the claim of juvenility under Section 7A read with

Rule 12 of the 2007 Rules. In other words, the law

regarding the procedure to be followed in such inquiry

must be found in the enactment conferring jurisdiction to

hold inquiry.

30. Consequently, the procedure to be followed under the

J.J. Act in conducting an inquiry is the procedure laid

down in that statute itself i.e. Rule 12 of the 2007 Rules.

We cannot import other procedures laid down in the Code

of Criminal Procedure or any other enactment while

making an inquiry with regard to the juvenility of a

person, when the claim of juvenility is raised before the

court exercising powers under Section 7A of the Act. Many

of the cases, we have come across, it is seen that the

Criminal Courts are still having the hangover of the

procedure of trial or inquiry under the Code as if they are

trying an offence under the Penal laws forgetting the fact

that the specific procedure has been laid down in Section

7A read with Rule 12.

31. We also remind all Courts/J.J. Board and the

Committees functioning under the Act that a duty is cast

on them to seek evidence by obtaining the certificate etc.

mentioned in Rule 12 (3) (a) (i) to (iii). The courts in such

situations act as a parens patriae because they have a

kind of guardianship over minors who from their legal

disability stand in need of protection.

32. “Age determination inquiry" contemplated under

Section 7A of the Act r/w Rule 12 of the 2007 Rules

enables the court to seek evidence and, in that process,

the court can obtain the matriculation or equivalent

certificates, if available. Only in the absence of any

matriculation or equivalent certificates, the court need

obtain the date of birth certificate from the school first

attended other than a play school. Only in the absence of

matriculation or equivalent certificate or the date of birth

certificate from the school first attended, the court need

obtain the birth certificate given by a corporation or a

municipal authority or a panchayat (not an affidavit but

certificates or documents). The question of obtaining

medical opinion from a duly constituted Medical Board

arises only if the above mentioned documents are

unavailable. In case exact assessment of the age cannot

be done, then the court, for reasons to be recorded, may, if

considered necessary, give the benefit to the child or

juvenile by considering his or her age on lower side within

the margin of one year.

33. Once the court, following the above mentioned

procedures, passes an order; that order shall be the

conclusive proof of the age as regards such child or

juvenile in conflict with law. It has been made clear in subsection (5) or Rule 12 that no further inquiry shall be

conducted by the court or the Board after examining and

obtaining the certificate or any other documentary proof

after referring to subrule (3) of the Rule 12. Further,

Section 49 of the J.J. Act also draws a presumption of the

age of the juvenility on its determination.

34. Age determination inquiry contemplated under the JJ

Act and Rules has nothing to do with an enquiry under

other legislations, like entry in service, retirement,

promotion etc. There may be situations where the entry

made in the matriculation or equivalent certificates, date of

birth certificate from the school first attended and even the

birth certificate given by a Corporation or a Municipal

Authority or a Panchayat may not be correct. But Court,

J.J. Board or a Committee functioning under the J.J. Act is

not expected to conduct such a roving enquiry and to go

behind those certificates to examine the correctness of

those documents, kept during the normal course of

business. Only in cases where those documents or

certificates are found to be fabricated or manipulated, the

Court, the J.J. Board or the Committee need to go for

medical report for age determination”.

45. What is discernible from the dictum laid down in Ashwani

Kumar Saxena (supra) is that, in deciding whether an accused is

juvenile or not, a hyper technical approach should not be adopted.

While appreciating the evidence adduced on behalf of the accused

in support of the plea that he is a juvenile, if two views are possible

on the same evidence, the Court should lean in favour of holding

the accused to be juvenile in borderline cases. The inquiry

contemplated is not a roving inquiry. The Court can accept as

evidence something more than an affidavit i.e. documents,

certificates etc. as evidence in proof of age. A mere opinion by a

person as to the accused looking one or two years older than the

age claimed by him (as the opinion of the head master in the

present case) or the fact that the accused told his age to be more

than what he alleges in the case while being arrested by the police

officer would not hold much water. It is the documentary evidence

placed on record that plays a major role in determining the age of a

juvenile in conflict of law. And, it is only in the cases where the

documents or certificates placed on record by the accused in

support of his claim of juvenility are found to be fabricated or

manipulated, that the Court, the Juvenile Justice Board or the

Committee need to go for medical test for age determination.

46. Clause (a) of Rule 12(3) of the 2007 Rules contains a

hierarchical ordering, evident from the use of the language "in the

absence whereof". This indicates that where a matriculation or

equivalent certificate is available, the documents adverted to in (ii)

and (iii) cannot be relied upon. The matriculation certificate, in

other words, is given precedence. It is in the absence of a

matriculation certificate that the date of birth certificate of the

school first attended, can be relied upon. It is in the absence of both

the matriculation and the birth certificates of the first school

attended that a birth certificate issued by the corporation,

municipal authority or panchayat could be obtained.

47. In Shah Nawaz v. State of Uttar Pradesh, (2011) 13 SCC

751, this Court, while examining the scope of Rule 12 of the 2007

Rules, has reiterated that medical opinion from the Medical Board

should be sought only when the matriculation certificate or

equivalent certificate or the date of birth certificate from the school

first attended or any birth certificate issued by a corporation or a

municipal authority or a panchayat or municipality is not available.

This Court had held that the entry related to the date of birth

entered in the marksheet is a valid evidence for determining the age

of the accused person so also the school leaving certificate for

determining the age of the appellant.

48. In the instant case, the accused has not produced any

matriculation certificate or equivalent certificate to prove his age.

What is produced by him is only the Family Register issued under

the U.P. Panchayat Raj Act, 1947. The document cannot be

accepted as equivalent to matriculation certificate to prove the age

of the accused. However, the evidentiary value of the Family

we may order.

Determination of plea of juvenility at a belated stage

49. Ideally, there should not be any dispute as to the age of a

person if the birth is registered in accordance with law and date of

birth is entered in the school records on the basis of genuine record

of birth. However, in India, the factors like poverty, illiteracy,

ignorance, indifference and inadequacy of the system often lead to

there being no documentary proof of a person’s age. Therefore, in

those cases where the plea of juvenility is raised at a belated stage,

often certain medical tests are resorted to forage determination in

absence of the documents enumerated in Section 94 of the Act

2015. The rule allowing plea of juvenility to be raised at a

considerably belated stage has its rationale in the contemporary

child rights jurisprudence which requires the stakeholders to act in

the best interest of the child.

50. In Court On Its Own Motion v. Dept. of Women and Child

Development, reported in 2012 SCC OnLine Del 2774, the

petitioners therein highlighted that how several hundred children

were languishing in the Tihar Jail because the police mentioned

them as adults in the arrest memo.

51. The same is the story in the State of Uttar Pradesh which led

the High Court of Allahabad to pass the order in Writ Petition Public

Interest Litigation referred to above in para 6.

52. Awareness about the rights of the child and correlated duties

remain low among the functionaries of the juvenile justice system.

Once a child is caught in the web of adult criminal justice system, it

is difficult for the child to get out of it unscathed. The bitter truth is

that even the legal aid programmes are mired in systemic

bottlenecks and often it is only at a considerably belated stage of

the proceeding that the person becomes aware of the rights,

including the right to be differently treated on the ground of

juvenility.

53. What needs to be kept in mind is the main object and purpose

of the Juvenile Justice Act. The focus of this legislation is on the

juvenile’s reformation and rehabilitation so that he also may have

an opportunity to enjoy as other children. In Pratap Singh

(supra), this Court, elaborating on the objects and purpose of the

Juvenile Justice Act, made the following observations:

"...The said Act is not only a beneficent legislation, but also

a remedial one. The Act aims at grant of care, protection

and rehabilitation of a juvenile visàvis the adult

criminals. Having regard to Rule 4 of the United Nations

Standard Minimum Rules for the Administration of

Juvenile Justice, it must also be borne in mind that the

moral and psychological components of criminal

responsibility were also one of the factors in defining

a juvenile. The first objective, therefore, is the promotion of

the wellbeing of the juvenile and the second objective to

bring about the principle of proportionality whereby and

whereunder the proportionality of the reaction to the

circumstances of both the offender and the offence

including the victim should be safeguarded..."

What is bone ossification test?

54. The famous American philosopher Mark Twain once said, “Age

is an issue of Mind over matter. If you don’t mind, it doesn’t matter.”

But the above is not the case in criminal jurisprudence when it

comes to age. Here, age matters because law is mindful to it.

55. The bone ossification test (hereinafter “ossification test”) is a

test that determines age based on the “degree of fusion of bone” by

taking the xray of a few bones. In simple words, the ossification

test or osteogenesis is the process of the bone formation based on

the fusion of joints between the birth and age of twentyfive years in

an individual. Bone age is an indicator of the skeletal and biological

maturity of an individual which assists in the determination of

age. The most common method used for the calculation of the bone

age is radiography of the hand and wrist until the age of 18 years

beyond which the medial age of clavicle is used for bone age

calculation till the age of 22 years as the hand and wrist bone

radiographs cannot be computed beyond 18 years of age as the

elongation of the bone is complete after adolescence. However, it

must be noted that the ossification test varies slightly based on

individual characteristics, therefore the ossification test though is

relevant however it cannot be called solely conclusive.

56. The 2015 Act under Section 94(2)(iii) read with Rule 12(3) of

the 2007 Rules provides the legislative sanction for the conduct of

ossification test or other medical age determination test available in

the absence of other documentary proof of age i.e. matriculation

certificate or birth certificate, which has to be given within 15 days

from the date of such order. The test is to be conducted by the

Child Welfare Committee (CWC). The provision mentioned herein is

the basis for determining the age of a child under the 2000 Act

which even includes a child who is a victim of crime in addition to a

child in conflict with the law.

57. In Vishnu v. State of Maharashtra, (2006) 1 SCC 283, this

Court clarified that the ossification test by the medical officer is to

assist the court which falls under the ambit of medical expert

opinion i.e., advisory in nature and not binding. However, such an

opinion cannot override ocular or documentary evidence, which has

been proved to be true and admissible as they constitute “statement

of facts”. This Court in Vishnu (supra) placed reliance on Madan

Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204, to hold that a

medical witness is not a witness of fact therefore the opinion

rendered by such a medical expert is merely advisory until accepted

by the Court, however, once accepted, they become the opinion of

the Court.

Margin of error principle

58. The bone ossification test is not an exact science that can

provide us with the exact age of the person. As discussed above, the

individual characteristics such as the growth rate of bones and

skeletal structures can affect the accuracy of this method. This

Court has observed in Ram Suresh Singh v. Prabhat Singh,

(2009) 6 SCC 681: (2010) 2 SCC (Cri) 1194, and Jyoti Prakash

Rai v. State of Bihar, (2008) 15 SCC 223: (2009) 3 SCC (Cri) 796,

that the ossification test is not conclusive for age determination

because it does not reveal the exact age of the person, but the

radiological examination leaves a margin of two years on either side

of the age range as prescribed by the test irrespective of whether the

ossification test of multiple joints is conducted. The courts in India

have accepted the fact that after the age of thirty years the

ossification test cannot be relied upon for age determination. It is

trite that the standard of proof for the determination of age is the

degree of probability and not proof beyond reasonable doubt.

59. In the aforesaid context, we may also refer to a decision of this

Court in the case of Mukarrab v. State of Uttar Pradesh, reported

in (2017) 2 SCC 210, wherein this Court has observed in para 27 as

under:

“… Following Babloo Pasi v. State of Jharkhand, (2008) 13

SCC 133 and State of M.P. v. Anoop Singh, (2015) 7 SCC

773, we hold that ossification test cannot be regarded as

conclusive when it comes to ascertaining the age of a

person. More so, the appellants herein have certainly

crossed the age of thirty years which is an important

factor to be taken into account as age cannot be

determined with precision. …”

60. In Arnit Das v. State of Bihar, (2000) 5 SCC 488, it was

observed that the Court should not take a hypertechnical approach

while appreciating evidence for determination of age of the accused.

If two views are possible, the Court should lean in favour of holding

the accused to be a juvenile in border line cases. This approach was

further reiterated by this Court in Rajendra Chandra v. State of

Chhattisgarh, (2002) 2 SCC 287, in which it laid down that the

standard of proof of age determination is the degree of probability

and not proof beyond reasonable doubt.

61. In Rishipal Singh Solanki v. State of Uttar Pradesh,

(2021) SCC OnLine SC 1079, this Court observed explicitly that

Section 94 of the 2015 Act does not give precedence to the

matriculation and other certificates, to determine the age of person,

since the said section only deals with the matter of procedure. This

Court held that lex non cogit ad impossibilia (law does not demand

the impossible) and when the ossification test cannot yield

trustworthy and reliable results, such test cannot be made a basis

to determine the age of the person and other available certificates

may be taken into consideration.

62. Similarly, in the case of Ram Vijay Singh v. State of U.P.,

(2021) SCC Online SC 142, this Court, while negativing the

contention canvassed on behalf of the appellant convict therein that

the procedure as contained in Rule 12(3)(b) of the 2007 Rules now

being part of Section 94 of the 2015 Act and once the statute has

provided the ossification test as the basis for determining juvenility,

the findings of such ossification test cannot be ignored, held in

paras 15 and 16 resply as under:

“15. We find that the procedure prescribed in Rule 12 is not

materially different than the provisions of Section 94 of the

Act to determine the age of the person. There are minor

variations as the Rule 12(3)(a)(i) and (ii) have been clubbed

together with slight change in the language. Section 94 of the

Act does not contain the provisions regarding benefit of

margin of age to be given to the child or juvenile as was

provided in Rule 12(3)(b) of the Rules. The importance of

ossification test has not undergone change with the

enactment of Section 94 of the Act. The reliability of the

ossification test remains vulnerable as was under Rule 12 of

the Rules.

16. As per the Scheme of the Act, when it is obvious to the

Committee or the Board, based on the appearance of the

person, that the said person is a child, the Board or

Committee shall record observations stating the age of the

Child as nearly as may be without waiting for further

confirmation of the age. Therefore, the first attempt to

determine the age is by assessing the physical appearance

of the person when brought before the Board or the

Committee. It is only in case of doubt, the process of age

determination by seeking evidence becomes necessary. At

that stage, when a person is around 18 years of age, the

ossification test can be said to be relevant for determining

the approximate age of a person in conflict with law.

However, when the person is around 4055 years of age, the

structure of bones cannot be helpful in determining the age.

This Court in Arjun Panditrao Khotkar v. Kailash Kushanrao

Gorantyal and Ors. held, in the context of certificate

required under Section 65B of the Evidence Act, 1872, that

as per the Latin maxim, lex non cogit ad impossibilia, law

does not demand the impossible. Thus, when the ossification

test cannot yield trustworthy and reliable results, such test

cannot be made a basis to determine the age of the person

concerned on the date of incident. Therefore, in the absence

of any reliable trustworthy medical evidence to find out age

of the appellant, the ossification test conducted in year 2020

when the appellant was 55 years of age cannot be

conclusive to declare him as a juvenile on the date of the

incident.”

63. We are conscious of the fact that in the case on hand the

convict was subjected to medical examination after being referred to

the Medical Board. However, the report on record does not inspire

much confidence. Over and above the same, the decision in the

case of Ram Vijay Singh (supra) makes it very clear that in the

absence of a reliable and trustworthy medical evidence to find out

the age of the appellant herein, the ossification test conducted in

the year 2021 when the appellant was above 50 years of age cannot

be conclusive to declare him as a juvenile on the date of the

incident. This Court observed that when a person is around 18

years of age, the ossification test can be said to be relevant for

determining the approximate age of a person in conflict with law.

However, when the person is around 4055 years of age, the

structure of bones cannot be helpful in determining the age. In

such circumstances, it will be a matter of debate as to what extent

the new ossification test report that may come on record can be

relied upon and to what extent the same would be helpful to the

appellant herein.

64. Despite all the odds against the writ applicant, we would still

like to look into the matter in the larger interest of justice. It will be

in fitness of things if the writ applicant convict is once again

subjected to the ossification test at the Civil Hospital, Allahabad or

any other latest medical age determination test and such test shall

be carried out by a team of three doctors, one of whom should be

the head of the Department of Radiology.

65. In view of the aforesaid, we issue the following directions:

(i) We direct the Sessions Court, Agra to examine the claim of the

writ applicant to juvenility in regard with law within one

month from the date of communication of this order;

(ii) The concerned Sessions Court shall also examine the

authenticity and genuineness of the Family Register sought to

be relied upon by writ applicant convict considering that the

document does not appear to be contemporaneous. This

document assumes importance, more particularly in the light

of the fact that the ossification test report may not be

absolutely helpful in determining the exact age of the writ

applicant on the date of incident. If the Family Register on

record is ultimately found to be authentic and genuine, then

we may not have to fall upon the ossification test report. In

such circumstances, the Presiding Officer concerned shall pay

adequate attention towards this document and try to ascertain

the authenticity and genuineness of the same. If need be, the

statements of the persons concerned i.e. from the concerned

government department may also be recorded;

(iii) The Sessions Court shall ensure that the writ applicant

convict is medically examined by taking an ossification test or

any other modern recognized method of age determination;

(iv) The Sessions Court concerned shall submit its report as

regards the aforesaid to this Court within one month from the

date of communication of this order;

(v) The Registry is directed to forward one copy of this order to

Sessions Court, Agra;

(vi) We request the learned counsel appearing for the State to take

appropriate steps to facilitate the Sessions Court to complete

the enquiry.

66. Notify this matter after a period of four weeks along with the

report that may be received from the Sessions Court, Agra. The

final order shall be passed after perusal of the report upon receipt

from the Sessions Court, Agra.

………………………………………..J.

(DINESH MAHESHWARI)

………………………………………..J.

(J.B. PARDIWALA)

NEW DELHI;

SEPTEMBER 12, 2022

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