MANU/SC/0845/2012

Equivalent Citation: AIR2013SC 1020, 2013(1)ALD(C ri)64, 2013(1)ALT(C ri)SC 43, (2013)1C ALLT60(SC ), 2013 (1) C G.L.R.W. 1,
2012(4)JC C 2725(SC ), JT2012(10)SC 453, 2012MLJ(C rl)334, 2012(4)RC R(C riminal)796, 2012(10)SC ALE101, (2012)10SC C 489, [2012]9SC R244

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 654 of 2002, 1397 of 2003 and 1193 of 2006, SLP (Crl.) Nos.
1451 of 2003, 8768 and 8855 of 2011 and 616 of 2012 and R.P. (Criminal) No. 390
of 2010 in SLP (Crl.) No. 2542 of 2010
Decided On: 10.10.2012
Appellants:Abuzar Hossain
Vs.
Respondent:State of West Bengal
Hon'ble Judges/Coram:
R.M. Lodha, Anil R. Dave and T.S. Thakur, JJ.
Counsels:
For Appearing Parties: Pradip Kr. Ghosh, S.R. Singh and Nagendra Rai, Sr. Advs.,
Rauf Rahim, Yadunandan Bansal, Chanchal Kumar Ganguli, Rajiv Mehta, V.
Sivasubramanian, Yogesh Swaroop, Antaryami Upadhyay, Kailash Chand, Sandhya
Goswami, Nikhar Berry, Smarhar Singh, Shantanu Sagar, Gopi Raman, Preeti Rashmi,
Amrita Rai, T. Mahipal, Kabir Shankar Bose, Abhijit Sengupta, B.P. Yadav, Tara
Chandra Sharma, Neelam Sharma, Kamal Mohan Gupta, Kavita Wadia, Vivek Vishnoi,
M.R. Shamshad, Manish Kumar, Chandan Kumar, Advs. for Gopal Singh, Adv., Kuldip
Singh and Mohit Mudgil, Advs.
Case Note:
Criminal - Recognisation of claim of juvenility - Section 7A of Juvenile
Justice (Care and Protection of Children) Act, 2000 - High Court held that
issue of juvenility was not pressed at any stage and no evidence
whatsoever was led by him to prove age and it was obligatory on Court to
go into question of juvenility and determine his age - Hence, this Reference
Petition - Whether, claim of juvenility be recognised and sent for
determination when it was raised for first time in Appeal or before this
Court or raised in trial and appeal but not pressed and then pressed for first
time before this Court or even raised for first time after final disposal of
case - Held, provision of Section 7A of 2000 Act cleared that claim of
juvenility may be raised at any stage even after final disposal of case and
delay in raising claim of juvenility cannot be ground for rejection of such
claim - Claim of juvenility would be raised in Appeal even if not pressed
before trial court and would be raised for first time before this Court though
not pressed before trial court and in Appeal Court - For making claim with
regard to juvenility after conviction, Claimant must produce some material
which would prima facie satisfied Court that inquiry into claim of juvenility
was necessary - Initial burden had to be discharged by person who claims
juvenility - If such documents prima facie inspire confidence of Court, Court
would act upon such documents for purposes of Section 7A and order
enquiry for determination of age of delinquent - Court where plea of
juvenility was raised for first time should always be guided by objectives of
Act and be alive to position that beneficent and salutary provisions

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contained in Act were not defeated by hyper-technical approach and
persons who were entitled to get benefits of Act - Reference Petition
disposed of.T.S. Thakur, J.Criminal - Recognisation of claim of juvenility -
Whether, misfortune of Accused never going to school be followed or
compounded by denial of benefit that legislation provided in such emphatic
terms, as to permit enquiry even after last Court had disposed of Appeal
and upheld his conviction - Held, if one were to adopt wooden approach,
one could say nothing short of certificate, whether from school or municipal
authority would satisfy court's conscience, before directing an enquiry, then
directing enquiry was not same thing as declaring Accused to be juvenile -
Standard of proof required was different for both - In former, Court simply
recorded prima facie conclusion - In latter Court made declaration on
evidence, that it scrutinised and accepted only if it was worthy of such
acceptance - Approach at stage of directing enquiry had of necessity to be
more liberal, lest, there was avoidable miscarriage of justice - Suffice it to
say that while affidavits would not be generally accepted as good enough
basis for directing enquiry, that they were not so accepted was not rule of
law but rule of prudence - Therefore Court would in each case weigh
relevant factors, insist upon filing of better affidavits if need so arises, and
even direct, any additional information considered relevant including
information regarding age of parents, age of siblings and like, to be
furnished before it decided on case to case basis - Reference Petition
disposed of.Ratio Decidendi "Claim of juvenility may be raised at any stage
even after final disposal of case and delay in raising claim of juvenility
cannot be ground for rejection of such claim."
JUDGMENT
R.M. Lodha, J.
1 . Delinquent juveniles need to be dealt with differently from adults. International
covenants and domestic laws in various countries have prescribed minimum
standards for delinquent juveniles and juveniles in conflict with law. These standards
provide what orders may be passed regarding delinquent juveniles and the orders
that may not be passed against them. This group of matters raises the question of
when should a claim of juvenility be recognised and sent for determination when it is
raised for the first time in appeal or before this Court or raised in trial and appeal but
not pressed and then pressed for the first time before this Court or even raised for
the first time after final disposal of the case.
2 . It so happened that when criminal appeal preferred by Abuzar Hossain @ Gulam
Hossain came up for consideration before a two-Judge Bench (Harjit Singh Bedi and
J.M. Panchal, JJ) on 10.11.2009, on behalf of the Appellant, a plea of juvenility on
the date of incident was raised. In support of the contention that the Appellant was
juvenile on the date of incident and as such he could not have been tried in a normal
criminal court, reliance was placed on a decision of this Court in Gopinath Ghosh v.
State of West Bengal MANU/SC/0101/1983 : 1984 (Supp) SCC 228. On the other
hand, on behalf of the Respondent, State of West Bengal, in opposition to that plea,
reliance was placed on a later decision of this Court in Akbar Sheikh and Ors. v. State
of West Bengal MANU/SC/0746/2009 : (2009) 7 SCC 415. The Bench found that there
was substantial discordance in the approach of the matter on the question of
juvenility in Gopinath Ghosh MANU/SC/0101/1983 : 1984 (Supp) SCC 228 on the
one hand and the two decisions of this Court in Akbar Sheikh MANU/SC/0746/2009 :

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(2009) 7 SCC 415 and Hari Ram v. State of Rajasthan and Anr. MANU/SC/0744/2009
: (2009) 13 SCC 211. The Bench was of the opinion that as the issue would arise in a
very large number of cases, it was required to be referred to a larger Bench as the
judgment in Akbar Sheikh MANU/SC/0746/2009 : (2009) 7 SCC 415 andGopinath
Ghosh MANU/SC/0101/1983 : 1984 (Supp) SCC 228 had been rendered by co-
ordinate Benches of this Court. This is how these matters have come up before us.
3 . The Parliament felt it necessary that uniform juvenile justice system should be
available throughout the country which should make adequate provision for dealing
with all aspects in the changing social, cultural and economic situation in the country
and there was also need for larger involvement of informal systems and community
based welfare agencies in the care, protection, treatment, development and
rehabilitation of such juveniles and with these objectives in mind, it enacted Juvenile
Justice Act, 1986 (for short, '1986 Act').
4 . 1986 Act was replaced by the Juvenile Justice (Care and Protection of Children)
Act, 2000 (for short, '2000 Act'). 2000 Act has been enacted to carry forward the
constitutional philosophy engrafted in Articles 15(3), 39(e) and (f), 45 and 47 of the
Constitution and also incorporate the standards prescribed in the Convention on the
Rights of the Child, United Nations Standard Minimum Rules for the Administration of
Juvenile Justice, 1985, the United Nations Rules for the Protection of Juveniles
Deprived of their Liberty (1990) and all other relevant international instruments.
Clause (k) of Section 2 defines "juvenile" or "child" to mean a person who has not
completed eighteenth year of age. Clause (l) of Section 2 defines "juvenile in conflict
with law" to mean a juvenile who is alleged to have committed an offence and has
not completed eighteenth year of age on the date of commission of such offence.
5 . Section 3 of 2000 Act provides for continuation of inquiry in respect of juvenile
who has ceased to be a juvenile. It reads as under:
Section 3. Continuation of inquiry in respect of juvenile who has ceased to
be a juvenile.--Where an inquiry has been initiated against a juvenile in
conflict with law or a child in need of care and protection and during the
course of such inquiry the juvenile or the child ceases to be such, then,
notwithstanding anything contained in this Act or in any other law for the
time being in force, the inquiry may be continued and orders may be made in
respect of such person as if such person had continued to be a juvenile or a
child.
6 . Chapter II of 2000 Act deals with juvenile in conflict with law. This Chapter
comprises of Sections 4 to 28. Section 4 provides for constitution of juvenile justice
board and its composition. Section 5 provides for procedure, etc. in relation to
juvenile justice board. Section 6 deals with the powers of juvenile justice board.
Section 6 reads as under:
Section 6. Powers of Juvenile Justice Board.-- (1) Where a Board has been
constituted for any district, such Board shall, notwithstanding anything
contained in any other law for the time being in force but save as otherwise
expressly provided in this Act, have power to deal exclusively with all
proceedings under this Act relating to juvenile in conflict with law.
(2) The powers conferred on the Board by or under this Act may also be
exercised by the High Court and the Court of Session, when the proceeding
comes before them in appeal, revision or otherwise.

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7. By Act 33 of 2006, the Parliament brought in significant changes in 2000 Act. Inter
alia, Section 7A came to be inserted. This Section is lynchpin around which the
debate has centered around in these matters. Section 7A provides for procedure to be
followed when claim of juvenility is raised before any court. It reads as follows:
Section 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 Sub-section (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.
8 . Section 49 of 2000 Act deals with presumption and determination of age. This
Section reads as under:
4 9 . Presumption and determination of age.--(1) Where it appears to a
competent authority that person brought before it under any of the
provisions of this Act (otherwise than for the purpose of giving evidence) is a
juvenile or the child, the competent authority shall make due inquiry so as to
the age of that person and for that purpose shall take such evidence as may
be necessary (but not an affidavit)and shall record a finding whether the
person is a juvenile or the child or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become
invalid merely by any subsequent proof that the person in respect of whom
the order has been made is not a juvenile or the child, and the age recorded
by the competent authority to be the age of person so brought before it, shall
for the purpose of this Act, be deemed to be the true age of that person.
9 . Sections 52 and 53 deal with appeals and revision. Section 54 provides for
procedure in inquiries, appeals and revision proceedings, which reads as follows:
Section 54. Procedure in inquiries, appeals and revision proceedings.--(1)
Save as otherwise expressly provided by this Act, a competent authority
while holding any inquiry under any of the provisions of this Act, shall follow
such procedure as may be prescribed and subject thereto, shall follow, as far
as may be, the procedure laid down in the Code of Criminal Procedure, 1973
(2 of 1974) for trials in summons cases.
(2) Save as otherwise expressly provided by or under this Act, the procedure
to be followed in hearing appeals or revision proceedings under this Act shall
be, as far as practicable, in accordance with the provisions of the Code of

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 Criminal Procedure, 1973 (2 of 1974).
10. In exercise of powers conferred by the proviso to Sub-section (1) of Section 68
of the 2000 Act, the Central Government has framed the rules entitled "The Juvenile
Justice (Care and Protection of Children) Rules, 2007" (for short, "2007 Rules"). The
relevant rule for the purposes of consideration of the issue before us is Rule 12 which
provides for procedure to be followed in determination of age. Since this Rule has a
direct bearing for consideration of the matter, it is quoted as it is. It reads as under:
Rule 12. Procedure to be followed in determination of Age.-- (1) In every
case concerning a child or a juvenile in conflict with law, the court or the
Board or as the case may be the Committee referred to in Rule 19 of these
rules shall determine the age of such juvenile or child or a juvenile in conflict
with law within a period of thirty days from the date of making of the
application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide
the juvenility or otherwise of the juvenile or the child or as the case may be
the juvenile in conflict with law, prima facie on the basis of physical
appearance or documents, if available, and send him to the observation
home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age
determination inquiry shall be conducted by the court or the Board or, as the
case may be, the 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.
(4) If the age of a juvenile or child or the juvenile in conflict with law is
found to be below 18 years on the date of offence, on the basis of any of the
conclusion proof specified in Sub-rule (3), the Court or the Board or as the

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 case may be the Committee shall in writing pass an order stating the age and
declaring the status of juvenility or otherwise, for the purpose of the Act and
these rules and a copy of the order shall be given to such juvenile or the
person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter
alia, in terms of Section 7A, Section 64 of the Act and these rules, no further
inquiry shall be conducted by the court or the Board after examining and
obtaining the certificate or any other documentary proof referred to in Sub-
rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed of
cases, where the status of juvenility has not been determined in accordance
with the provisions contained in Sub-rule (3) and the Act, requiring
dispensation of the sentence under the Act for passing appropriate order in
the interest of the juvenile in conflict with law.
1 1 . It is not necessary to refer to facts of criminal appeal preferred by Abuzar
Hossain @ Gulam Hossain or the other referred matters. Suffice it to say that in
criminal appeal of Abuzar Hossain @ Gulam Hossain, in support of the argument that
he was juvenile on the date of incident and as such he could not have been tried in
the normal criminal court, his statement recorded under Section 313 of the Code of
Criminal Procedure, 1973 (for short, 'the Code') was pressed into service. It was,
however, found from the evidence as well as the judgments of the trial court and the
High Court that the issue of juvenility was not pressed at any stage and no evidence
whatsoever was led by him to prove the age. It was in the backdrop of these facts
that Gopinath Ghosh MANU/SC/0101/1983 : 1984 (Supp) SCC 228 was relied upon in
support of the proposition that notwithstanding the fact that the plea of juvenility had
not been pressed, it was obligatory on the court to go into the question of juvenility
and determine his age.
12. Gopinath Ghosh MANU/SC/0101/1983 : 1984 (Supp) SCC 228 was a case where
he was convicted along with two others for an offence under Section 302 read with
Section 34 of Indian Penal Code and sentenced to suffer imprisonment for life by the
trial court. He and two co-accused preferred criminal appeal before Calcutta High
Court. In the appeal, two accused were acquitted while the conviction and sentence
of Gopinath Ghosh was maintained. Gopinath Ghosh filed appeal by special leave
before this Court. On his behalf, the argument was raised that on the date of offence,
i.e. on 19.8.1974 he was aged below 18 years and he is therefore a "child" within the
meaning of the expression in the West Bengal Children Act, 1959 and, therefore, the
court had no jurisdiction to sentence him to suffer imprisonment after holding a trial.
Having regard to the contention raised on behalf of the Appellant, this Court framed
an issue for determination; what was the age of the accused Gopinath Ghosh
(Appellant) on the date of offence for which he was tried and convicted? The issue
was remitted to the Sessions Judge, Nadia to ascertain his age and submit the
finding. The Additional Sessions Judge, First Court, Nadia, accordingly, held an
inquiry and after recording the evidence and calling for medical report and after
hearing parties certified that Gopinath Ghosh was aged between 16 and 17 years on
the date of the offence. The finding sent by the Additional Sessions Judge was not
questioned before this Court. The Court examined the scheme of West Bengal
Children Act, 1959 and also noted Section 24 thereof which had an overriding effect
taking away the power of the court to impose the sentence of imprisonment unless
the case was covered by the proviso thereto. Then in paragraph 10 (pg. 231) of the

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Report, this Court held as under:
10. Unfortunately, in this case, Appellant Gopinath Ghosh never questioned
the jurisdiction of the Sessions Court which tried him for the offence of
murder. Even the Appellant had given his age as 20 years when questioned
by the learned Additional Sessions Judge. Neither the Appellant nor his
learned Counsel appearing before the learned Additional Sessions Judge as
well as at the hearing of his appeal in the High Court ever questioned the
jurisdiction of the trial court to hold the trial of the Appellant, nor was it ever
contended that he was a juvenile delinquent within the meaning of the Act
and therefore, the Court had no jurisdiction to try him, as well as the Court
had no jurisdiction to sentence him to suffer imprisonment for life. It was for
the first time that this contention was raised before this Court. However, in
view of the underlying intendment and beneficial provisions of the Act read
with Clause (f) of Article 39 of the Constitution which provides that the State
shall direct its policy towards securing 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, we consider it proper not to
allow a technical contention that this contention is being raised in this Court
for the first time to thwart the benefit of the provisions being extended to the
Appellant, if he was otherwise entitled to it.
13. In paragraph 13 (pgs. 232-233) of the Report, the Court observed as under:
13. Before we part with this judgment, we must take notice of a developing
situation in recent months in this Court that the contention about age of a
convict and claiming the benefit of the relevant provisions of the Act dealing
with juvenile delinquents prevalent in various States is raised for the first
time in this Court and this Court is required to start the inquiry afresh.
Ordinarily this Court would be reluctant to entertain a contention based on
factual averments raised for the first time before it. However, the Court is
equally reluctant to ignore, overlook or nullify the beneficial provisions of a
very socially progressive statute by taking shield behind the technicality of
the contention being raised for the first time in this Court. A way has
therefore, to be found from this situation not conducive to speedy disposal of
cases and yet giving effect to the letter and the spirit of such socially
beneficial legislation. We are of the opinion that whenever a case is brought
before the Magistrate and the accused appears to be aged 21 years or below,
before proceeding with the trial or undertaking an inquiry, an inquiry must
be made about the age of the accused on the date of the occurrence. This
ought to be more so where special Acts dealing with juvenile delinquent are
in force. If necessary, the Magistrate may refer the accused to the Medical
Board or the Civil Surgeon, as the case may be, for obtaining creditworthy
evidence about age. The Magistrate may as well call upon accused also to
lead evidence about his age. Thereafter, the learned Magistrate may proceed
in accordance with law. This procedure, if properly followed, would avoid a
journey upto the Apex Court and the return journey to the grass-root court.
If necessary and found expedient, the High Court may on its administrative
side issue necessary instructions to cope with the situation herein indicated.
14. I n Bhoop Ram v. State of U.P. MANU/SC/0070/1989 : (1989) 3 SCC 1, a two-
Judge Bench of this Court was concerned with the question as to whether the

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Appellant Bhoop Ram should have been treated as a "child" within the meaning of
Section 2(4) of the U.P. Children Act, 1951 and sent to an approved school for
detention therein till he attained the age of 18 years instead of being sentenced to
undergo imprisonment in jail. In Bhoop Ram MANU/SC/0070/1989 : (1989) 3 SCC 1,
the Chief Medical Officer, Bareilly gave a certificate that as per the radiology
examination and physical features, he appeared to be 30 years of age as on
30.4.1987. Bhoop Ram did not place any other material before the Sessions Judge
except the school certificate to prove that he had not completed 16 years on the date
of commission of the offences. The Sessions judge rejected the school certificate
produced by him on the ground that "it is not unusual that in schools ages are
understated by one or two years for future benefits". As regards medical certificate
the Sessions Judge observed that as he happened to be about 28-29 years of age on
1.6.1987, he would have completed 16 years on the date of occurrence. Before the
Court, on behalf of the Appellant, Bhoop Ram, it was contended that school
certificate produced by him contained definite information regarding date of birth and
that should have prevailed over the certificate of the doctor and the Sessions Judge
committed wrong in doubting the correctness of the school certificate. This Court on
consideration of the matter held that Appellant Bhoop Ram could not have completed
16 years of age on 3.10.1975 when the occurrence took place and as such he ought
to have been treated as "child" within the meaning of Section 2(4) of the U.P.
Children Act, 1951 and dealt with under Section 29 of the Act. The Court gave the
following reasons for holding Appellant, Bhoop Ram, a "child" on the date of
occurrence of the incident:
7. ....The first is that the Appellant has produced a school certificate which
carries the date 24-6-1960 against the column "date of birth". There is no
material before us to hold that the school certificate does not relate to the
Appellant or that the entries therein are not correct in their particulars. The
Sessions Judge has failed to notice this aspect of the matter and appears to
have been carried away by the opinion of the Chief Medical Officer that the
Appellant appeared to be about 30 years of age as on 30-4-1987. Even in the
absence of any material to throw doubts about the entries in the school
certificate, the Sessions Judge has brushed it aside merely on the surmise
that it is not unusual for parents to understate the age of their children by
one or two years at the time of their admission in schools for securing
benefits to the children in their future years. The second factor is that the
Sessions Judge has failed to bear in mind that even the trial Judge had
thought it fit to award the lesser sentence of imprisonment for life to the
Appellant instead of capital punishment when he delivered judgment on 12-
9-1977 on the ground the Appellant was a boy of 17 years of age. The
observation of the trial Judge would lend credence to the Appellant's case
that he was less than 10 (sic 16) years of age on 3-10-1975 when the
offences were committed. The third factor is that though the doctor has
certified that the Appellant appeared to be 30 years of age as on 30-4-1987,
his opinion is based only on an estimate and the possibility of an error of
estimate creeping into the opinion cannot be ruled out. As regards the
opinion of the Sessions Judge, it is mainly based upon the report of the Chief
Medical Officer and not on any independent material. On account of all these
factors, we are of the view that the Appellant would not have completed 16
years of age on the date the offences were committed...
1 5 . A three-Judge Bench of this Court in Pradeep Kumar v. State of U.P.
MANU/SC/0027/1994 : 1995 Supp (4) SCC 419 was concerned with the question

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whether each of the Appellants was a "child" within the meaning of Section 2(4) of
the U.P. Children Act, 1951 and as such on conviction under Section 302/34 Indian
Penal Code, they should have been sent to approved school for detention till the age
of 18 years. The Court dealt with the matter in its brief order thus:
2 . At the time of granting special leave, Jagdish Appellant produced High
School Certificate, according to which he was about 15 years of age at the
time of occurrence. Appellant Krishan Kant produced horoscope which
showed that he was 13 years of age at the time of occurrence. So far as
Appellant Pradeep is concerned a medical report was called for by this Court
which disclosed that his date of birth as January 7, 1959 was acceptable on
the basis of various tests conducted by the medical authorities.
3 . It is thus proved to the satisfaction of this Court that on the date of
occurrence, the Appellants had not completed 16 years of age and as such
they should have been dealt with under the U.P. Children Act instead of being
sentenced to imprisonment on conviction under Section 302/34 of the Act.
16. The above three decisions came up for consideration before this Court in Bhola
Bhagat v. State of Bihar MANU/SC/1361/1997 : (1997) 8 SCC 720. The plea raised
on behalf of the Appellants that they were 'children' as defined in the Bihar Children
Act, 1970 on the date of occurrence and their trial along with adult accused by the
criminal court was not in accordance with law was rejected by the High Court
observing that except for the age given by the Appellants and the estimate of the
court at the time of their examination under Section 313 of the Code, there was no
other material in support of the Appellants' claim that they were below 18 years of
age. This Court flawed the approach of the High Court and observed as follows:
8. To us it appears that the approach of the High Court in dealing with the
question of age of the Appellants and the denial of benefit to them of the
provisions of both the Acts was not proper. Technicalities were allowed to
defeat the benefits of a socially-oriented legislation like the Bihar Children
Act, 1982 and the Juvenile Justice Act, 1986. If the High Court had doubts
about the correctness of their age as given by the Appellants and also as
estimated by the trial court, it ought to have ordered an enquiry to determine
their ages. It should not have brushed aside their plea without such an
enquiry.
1 7 . Gopinath Ghosh MANU/SC/0101/1983 : 1984 (Supp) SCC 228,Bhoop Ram
MANU/SC/0070/1989 : (1989) 3 SCC 1 andPradeep Kumar MANU/SC/0027/1994 :
1995 Supp (4) SCC 419 were elaborately considered in paragraphs 10, 11 and 12 of
the Report. The Court also considered a decision of this Court in State of Haryana v.
Balwant Singh : 1993 (Supp) 1 SCC 409 and held that the said decision was not a
good law. In paragraph 15 of the Report, the Court followed the course adopted in
Gopinath Ghosh MANU/SC/0101/1983 : 1984 (Supp) SCC 228,Bhoop Ram
MANU/SC/0070/1989 : (1989) 3 SCC 1 andPradeep Kumar MANU/SC/0027/1994 :
1995 Supp (4) SCC 419 and held as under:
15. The correctness of the estimate of age as given by the trial court was
neither doubted nor questioned by the State either in the High Court or in
this Court. The parties have, therefore, accepted the correctness of the
estimate of age of the three Appellants as given by the trial court. Therefore,
these three Appellants should not be denied the benefit of the provisions of a

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 socially progressive statute. In our considered opinion, since the plea had
been raised in the High Court and because the correctness of the estimate of
their age has not been assailed, it would be fair to assume that on the date
of the offence, each one of the Appellants squarely fell within the definition
of the expression "child". We are under these circumstances reluctant to
ignore and overlook the beneficial provisions of the Acts on the technical
ground that there is no other supporting material to support the estimate of
ages of the Appellants as given by the trial court, though the correctness of
that estimate has not been put in issue before any forum...
18. Mr. Pradip Kr. Ghosh, learned senior counsel for the Appellant Abuzar Hossain @
Gulam Hossain, relying heavily upon the above cases, submitted that what was
earlier established by judicial interpretation in Gopinath Ghosh MANU/SC/0101/1983
: 1984 (Supp) SCC 228, Bhoop Ram MANU/SC/0070/1989 : (1989) 3 SCC 1 and
Pradeep Kumar MANU/SC/0027/1994 : 1995 Supp (4) SCC 419 became the statutory
law with the enactment of Section 7A of 2000 Act and Rule 12 of the 2007 Rules and
in view thereof a different approach is required with regard to the delinquent
juveniles as and when plea of juvenility is raised before the court. Learned senior
counsel would submit that the courts have to ensure that the beneficial provisions
contained in Section 7A and Rule 12 are not frustrated by procedural rigidity. It was
submitted that while enacting Section 7A, the Legislature has taken note of socio-
economic ground realities of the country and had kept in view juveniles who come
from amongst the poorest of the poor, slum dwellers, street dwellers and some of
those having no shelter, no means of sustenance and for whom it would be a far cry
to have any documents as they would have neither any schooling nor any birth
registration. The law has to be applied in the manner so that its benefits are made
available to all those who are entitled to it. He contended that the very fact that Rule
12 provided for every possible opportunity to establish the juvenility and when
everything fails there is the mandate of holding the medical examination of the
delinquent, shows the legislative intent.
19. Mr. Pradip Kr. Ghosh, learned senior counsel also submitted that the law with
regard to juvenile delinquents by insertion of Section 7A has been given retrospective
effect and made applicable even after disposal of the case and, therefore, in all such
cases, those who had no occasion to claim the benefit of juvenility in the past
deserve fresh opportunity to be given and they should be allowed to produce such
materials afresh as may be available in support of the claim. He submitted that a
purposive interpretation to Section 7A and Rule 12 must be given to bring within
their fold not only documents which are contemplated in terms of Sub-rule (3) of
Rule 12 but also cases in which no such document is available but if the accused is
referred to a medical board, his age would eventually be found to be such as would
make him a juvenile.
20. Mr. Pradip Kr. Ghosh, learned senior counsel did not dispute that for the purpose
of making a claim with regard to juvenility, the delinquent has to produce some
material in support of his claim and in the absence of any documentary evidence, file
at least a supporting affidavit affirmed by one of his parents or an elder sibling or
other relation who is competent to depose as to his age so as to make the court to
initiate an inquiry under Rule 12(3). He did concede that a totally frivolous claim of
juvenility which on the face of it is patently absurd and inherently improper may not
be entertained by the court but at the same time the court must not be hyper-
technical and must ensure that beneficial provision is not defeated by undue
technicalities.

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21. Learned senior counsel submitted that the statement under Section 313 of the
Code or the voters' list may not be decisive but the documents of such nature may be
adequate for the court to initiate an inquiry in terms of Rule 12(3). According to him,
what is decisive is the result of the inquiry under Rule 12(3). However, semblance of
material must justify an order to cause an inquiry to be made to determine the claim
of juvenility.
22. Mr. Abhijit Sengupta, learned Counsel for the State of West Bengal, submitted
that although the provisions of 2000 Act as amended in 2006, and the Rules must be
given full effect as these are beneficial provisions for the benefit of juveniles, but at
the same time this Court must ensure that the provisions are not abused and a
floodgate of cases does not start. He submitted that in Pawan v. State of Uttaranchal
MANU/SC/0289/2009 : (2009) 15 SCC 259, a 3-Judge Bench of this Court had
emphasized on the need for satisfactory, adequate and prima facie material before an
inquiry under Rule 12 could be commenced and the law laid down in Pawan
MANU/SC/0289/2009 : (2009) 15 SCC 259 must be followed as and when claim of
juvenility is raised before this Court. He submitted that claim of juvenility must be
credible before ordering an inquiry under Rule 12.
2 3 . Mr. Nagendra Rai, learned senior counsel for the Petitioner in the connected
Special Leave Petition being SLP (Criminal) No. 616 of 2012, Ram Sahay Rai v. State
of Bihar submitted that by amendment brought in 2006, 2000 Act has been drastically
amended. The Legislature by bringing in Section 7A has clearly provided that the
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 2000 Act and the Rules made thereunder, even if
the juvenile has ceased to be so on or before the commencement of the Act. He
would submit that even if the question of juvenility had not been raised by the
juvenile even upto this Court and there is some material to show that a person is a
juvenile on the date of commission of crime, it can be recognised at any stage even
at the stage of undergoing sentence. He agreed that inquiry cannot be initiated on the
basis of mere assertion of the claim. There must be prima facie material to initiate
the inquiry and once the prima facie test is satisfied, the determination may be made
in terms of Rule 12. With reference to Rule 12, learned senior counsel would submit
that appearance, documents and medical evidence are the only materials which are
relevant for determining the age and as such only such materials should form the
basis for forming an opinion about the prima facie case. The oral evidence should
rarely form the basis for initiation of proceeding as in view of Rule 12, the said
material can never be used in inquiry and thus forming an opinion on that oral
evidence will not serve the purposes of the Act.
2 4 . Learned Counsel for the State of Bihar on the other hand submitted that
Legislature never intended to make Section 7A applicable to this Court after the final
disposal of the case. He submitted that there was no provision in the Supreme Court
Rules to re-open the concluded appeals or SLPs. Moreover, when SLP is filed, it is
mandatory that no new ground or document shall be relied upon which has not been
the part of record before the High Court and, therefore, if plea of juvenility has not
been raised before the High Court, it cannot be raised before this Court. According to
him, the power under the 2000 Act can be exercised only by the Juvenile Board,
Sessions Court or High Court after final disposal of the case but not this Court. He,
however, submitted that the Supreme Court in exercise of its power under Article 142
may remand the matter to such forums, if it appears expedient in the interest of
justice.

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2 5 . The amendment in 2000 Act by the Amendment Act, 2006, particularly,
introduction of Section 7A and subsequent introduction of Rule 12 in the 2007 Rules,
was sequel to the Constitution Bench decision of this Court in Pratap Singh v. State of
Jharkhand and Anr. MANU/SC/0075/2005 : (2005) 3 SCC 551. InHari Ram
MANU/SC/0744/2009 : (2009) 13 SCC 211, a two-Judge Bench of this Court
extensively considered the scheme of 2000 Act, as amended by 2006 Amendment
Act. With regard to Sub-rules (4) and (5) of Rule 12, this Court observed as follows:
27. Sub-rules (4) and (5) of Rule 12 are of special significance in that they
provide that once the age of a juvenile or child in conflict with law is found
to be less than 18 years on the date of offence on the basis of any proof
specified in Sub-rule (3) the court or the Board or as the case may be the
Child Welfare Committee appointed under Chapter IV of the Act, has to pass
a written order stating the age of the juvenile or stating the status of the
juvenile, and no further inquiry is to be conducted by the court or Board after
examining and obtaining any other documentary proof referred to in Sub-rule
(3) of Rule 12. Rule 12, therefore, indicates the procedure to be followed to
give effect to the provisions of Section 7-A when a claim of juvenility is
raised.
26. This Court observed that the scheme of the 2000 Act was to give children, who
have, for some reason or the other, gone astray, to realize their mistakes, rehabilitate
themselves and rebuild their lives and become useful citizens of the society, instead
of degenerating into hardened criminals. In paragraph 59 of the Report, the Court
held as under:
59. The law as now crystallised on a conjoint reading of Sections 2(k), 2(l),
7-A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all
persons who were below the age of 18 years on the date of commission of
the offence even prior to 1-4-2001, would be treated as juveniles, even if the
claim of juvenility was raised after they had attained the age of 18 years on
or before the date of commencement of the Act and were undergoing
sentence upon being convicted.
27. The Court observed in Hari Ram MANU/SC/0744/2009 : (2009) 13 SCC 211 that
often parents of children, who come from rural backgrounds, are not aware of the
actual date of birth of a child, but relate the same to some event which might have
taken place simultaneously. In such a situation, the Board and the Courts will have to
take recourse to the procedure laid down in Rule 12.
28. The judgment in the case of Hari Ram MANU/SC/0744/2009 : (2009) 13 SCC 211
was delivered by this Court on 5.5.2009. On that very day, judgment in Akbar Sheikh
MANU/SC/0746/2009 : (2009) 7 SCC 415 was delivered by a two-Judge Bench of
which one of us (R.M. Lodha, J.) was a member. In Akbar Sheikh
MANU/SC/0746/2009 : (2009) 7 SCC 415 on behalf of one of the Appellants, Kabir, a
submission was made that he was juvenile on the date of occurrence. While dealing
with the said argument, this Court observed that no such question had ever been
raised. Even where a similar question was raised by five other accused, no such plea
was raised even before the High Court. On behalf of the Appellant, Kabir, in support
of the juvenility, two documents were relied upon, namely, (i) statement recorded
under Section 313 of the Code and (ii) voters' list. As regards the statement recorded
under Section 313, this Court was of the opinion that the said document was not
decisive. In respect of voters' list, this Court observed that the same had been

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prepared long after the incident occurred and it was again not decisive. In view of
these findings, this Court did not find any merit in the claim of Kabir, one of the
Appellants, that he was juvenile and the submission was rejected. From a careful
reading of the judgment in the matter of Akbar Sheikh MANU/SC/0746/2009 : (2009)
7 SCC 415, it is clear that the two documents on which reliance was placed in
support of claim of juvenility were not found decisive and, consequently, no inquiry
for determination of age was ordered. From the consideration of the matter by this
Court in Akbar Sheikh MANU/SC/0746/2009 : (2009) 7 SCC 415, it is clear that the
case turned on its own facts.
2 9 . As a matter of fact, prior to the decisions of this Court in Hari Ram
MANU/SC/0744/2009 : (2009) 13 SCC 211 andAkbar Sheikh MANU/SC/0746/2009 :
(2009) 7 SCC 415, a three-Judge Bench of this Court speaking through one of us
(R.M. Lodha, J.) in Pawan MANU/SC/0289/2009 : (2009) 15 SCC 259 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, A-1 and A-2. The
argument on their behalf before this Court was that they were juvenile within the
meaning of 2000 Act on the date of incident and the trial held against them under the
Code was illegal. With regard to A-1, his school leaving certificate was relied on
while as regards A-2, 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 paragraph 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. It was
held that where the materials placed before this Court by the accused, prima facie,
suggested that he was 'juvenile' as defined in 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
offence. In absence of adequate material, any further inquiry into juvenility would not
be required.
30. Having regard to the general guidelines highlighted in paragraph 41 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 A-1 and A-2 in support of the claim of
juvenility on the date of incident. In respect of the two documents relied upon by A-
2, 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 A-2 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 A-1, 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 A-1 and A-2. Those documents were not found satisfactory and adequate to

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call for any report from the Board or trial court about the age of A-1 and A-2.
3 1 . I n Jitendra Singh alias Babboo Singh and Anr. v. State of Uttar Pradesh
MANU/SC/0962/2010 : (2010) 13 SCC 523, on behalf of the Appellant, a plea was
raised that he was minor within the meaning of Section 2(k) of 2000 Act on the date
of commission of the offence. The Appellant had been convicted for the offences
punishable under Sections 304-B and 498A Indian Penal Code and sentenced to
suffer seven years' imprisonment under the former and two years under the latter.
The Appellant had got the bail from the High Court on the ground of his age which
was on medical examination certified to be around seventeen years on the date of
commission of the offence. One of us (T.S. Thakur, J.) who authored the judgment
for the Bench held that in the facts and circumstances of the case, an enquiry for
determining the age of the Appellant was necessary. This Court referred to the earlier
decisions in Gopinath Ghosh MANU/SC/0101/1983 : 1984 (Supp) SCC 228,Bhoop
Ram (1989) 3 SCC 1, Bhola Bhagat MANU/SC/1361/1997 : (1997) 8 SCC 720,Hari
Ram MANU/SC/0744/2009 : (2009) 13 SCC 211 andPawan MANU/SC/0289/2009 :
(2009) 15 SCC 259 and then held that the burden of making out the prima facie case
had been discharged. In paragraphs 9, 10 and 11 of the Report, it was held as under:
9. The burden of making out a prima facie case for directing an enquiry has
been in our opinion discharged in the instant case inasmuch as the Appellant
has filed along with the application a copy of the school leaving certificate
and the marksheet which mentions the date of birth of the Appellant to be
24-5-1988. The medical examination to which the High Court has referred in
its order granting bail to the Appellant also suggests the age of the Appellant
being 17 years on the date of the examination. These documents are
sufficient at this stage for directing an enquiry and verification of the facts.
10. We may all the same hasten to add that the material referred to above is
yet to be verified and its genuineness and credibility determined. There are
no doubt certain telltale circumstances that may raise a suspicion about the
genuineness of the documents relied upon by the Appellant. For instance, the
deceased Asha Devi who was married to the Appellant was according to Dr.
Ashok Kumar Shukla, Pathologist, District Hospital, Rae Bareilly aged 19
years at the time of her death. This would mean as though the Appellant
husband was much younger to his wife which is not the usual practice in the
Indian context and may happen but infrequently. So also the fact that the
Appellant obtained the school leaving certificate as late as on 17-11-2009
i.e. after the conclusion of the trial and disposal of the first appeal by the
High Court, may call for a close scrutiny and examination of the relevant
school record to determine whether the same is free from any suspicion,
fabrication or manipulation. It is also alleged that the electoral rolls showed
the age of the accused to be around 20 years while the extract from the
panchayat register showed him to be 19 years old.
11. All these aspects would call for close and careful scrutiny by the court
below while determining the age of the Appellant. The date of birth of
Appellant Jitendra Singh's siblings and his parents may also throw
considerable light upon these aspects and may have to be looked into for a
proper determination of the question. Suffice it to say while for the present
we consider it to be a case fit for directing an enquiry, that direction should
not be taken as an expression of any final opinion as regards the true and
correct age of the Appellant which matter shall have to be independently

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 examined on the basis of the relevant material.
32. In Daya Nand v. State of Haryana MANU/SC/0021/2011 : (2011) 2 SCC 224, this
Court found that on the date of occurrence the age of the Appellant was sixteen years
five months and nineteen days and, accordingly, it was held that he could not have
been kept in prison to undergo the sentence imposed by the Additional Sessions
Judge and affirmed by the High Court. This Court set aside the sentence imposed
against the Appellant and he was directed to be released from prison.
33. I n Lakhan Lal v. State of Bihar MANU/SC/0259/2011 : (2011) 2 SCC 251, the
question was about the applicability of 2000 Act where the Appellants were not
juveniles within the meaning of 1986 Act as they were above 16 years of age but had
not completed 18 years of age when offences were committed and even when claim
of juvenility was raised after they had attained 18 years of age. This Court gave
benefit of 2000 Act to the Appellants and they were directed to be released forthwith.
34. In Shah Nawaz v. State of Uttar Pradesh and Anr. MANU/SC/0910/2011 : (2011)
13 SCC 751, the matter reached this Court from the judgment and order of the
Allahabad High Court. An F.I.R. was lodged against the Appellant, Shah Nawaz, and
three others for the offences punishable under Sections 302 and 307 of Indian Penal
Code. The mother of the Appellant submitted an application before the Board stating
that Shah Nawaz was minor at the time of alleged occurrence. The Board after
holding an enquiry declared Shah Nawaz a juvenile under the 2000 Act. The wife of
the deceased filed criminal appeal against the judgment of the Board before the
Additional Sessions Judge, Muzaffarnagar. That appeal was allowed and the order of
the Board was set aside. Shah Nawaz preferred criminal revision before the High
Court against the order of the Additional Sessions Judge which was dismissed giving
rise to appeal by special leave before this Court. This Court considered Rule 12 of
2007 Rules and also noted, amongst others, the decision in Hari Ram
MANU/SC/0744/2009 : (2009) 13 SCC 211 and then on consideration of the
documents, particularly entry relating to the date of birth entered in the marksheet
held that Shah Nawaz was juvenile on the date of occurrence of the incident. This
Court in paragraphs 23 and 24 of the Report held as under:
23. The documents furnished above clearly show that the date of birth of the
Appellant had been noted as 18-6-1989. Rule 12 of the Rules categorically
envisages that the medical opinion from the Medical Board should be sought
only when the matriculation certificate or school certificate or any birth
certificate issued by a corporation or by any panchayat or municipality is not
available. We are of the view that though the Board has correctly accepted
the entry relating to the date of birth in the marksheet and school certificate,
the Additional Sessions Judge and the High Court committed a grave error in
determining the age of the Appellant ignoring the date of birth mentioned in
those documents which is illegal, erroneous and contrary to the Rules.
24. We are satisfied that the entry relating to date of birth entered in the
marksheet is one of the valid proofs of evidence for determination of age of
an accused person. The school leaving certificate is also a valid proof in
determining the age of the accused person. Further, the date of birth
mentioned in the High School marksheet produced by the Appellant has duly
been corroborated by the school leaving certificate of the Appellant of Class
X and has also been proved by the statement of the clerk of Nehru High
School, Dadheru, Khurd-o-Kalan and recorded by the Board. The date of

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 birth of the Appellant has also been recorded as 18-6-1989 in the school
leaving certificate issued by the Principal of Nehru Preparatory School,
Dadheru, Khurd-o-Kalan, Muzaffarnagar as well as the said date of birth
mentioned in the school register of the said School at Sl. No. 1382 which
have been proved by the statement of the Principal of that School recorded
before the Board.
In paragraph 26 of the Report, this Court observed that Rule 12 has described four
categories of evidence which gave preference to school certificate over the medical
report.
35. In Pawan MANU/SC/0289/2009 : (2009) 15 SCC 259, a 3-Judge Bench has laid
down the standards for evaluating claim of juvenility raised for the first time before
this Court. If Pawan MANU/SC/0289/2009 : (2009) 15 SCC 259 had been cited before
the Bench when criminal appeal of Abuzar Hossain @ Gulam Hossain came up for
hearing, perhaps reference would not have been made. Be that as it may, in light of
the discussion made above, we intend to summarise the legal position with regard to
Section 7A of 2000 Act and Rule 12 of the 2007 Rules. But before we do that, we say
a word about the argument raised on behalf of the State of Bihar that claim of
juvenility cannot be raised before this Court after disposal of the case. The argument
is so hopeless that it deserves no discussion. The expression, 'any court' in Section
7A is too wide and comprehensive; it includes this Court. Supreme Court Rules surely
do not limit the operation of Section 7A to the courts other than this Court where the
plea of juvenility is raised for the first time after disposal of the case.
36. Now, we summarise the position which is as under:
(i) A claim of juvenility may be raised at any stage even after final disposal
of the case. It may be raised for the first time before this Court as well after
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
appeal court.
(ii) 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.
(iii) 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 Rule 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 hard and fast rule can be prescribed that
they must be prima facie accepted or rejected. In Akbar Sheikh

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 MANU/SC/0746/2009 : (2009) 7 SCC 415 andPawan MANU/SC/0289/2009 :
(2009) 15 SCC 259 these documents were not found prima facie credible
while in Jitendra Singh MANU/SC/0962/2010 : (2010) 13 SCC 523 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.
(iv) 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 age of the delinquent.
(v) 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 2000 Act are
not defeated by hyper-technical approach and the persons who are entitled to
get benefits of 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.
(vi) 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 threshold whenever raised.
37. The reference is answered in terms of the position highlighted in paragraph 36
(i) to (vi). The matters shall now be listed before the concerned Bench(es) for
disposal.
T.S. Thakur, J.
38. I have had the advantage of going through the order proposed by my esteemed
brother R.M. Lodha J., which summarises the legal position with remarkable lucidity.
While I entirely agree with whatever is enunciated in the judgment proposed by my
erudite colleague, I wish to add a few lines of my own confined to the proposition
stated in Para 36 (IV) of the judgment. In that paragraph of the order fall cases in
which the accused setting up the plea of juvenility is unable to produce any one of
the documents referred to in Rule 12(3)(a)(i) to (iii) of the Rules, under the Act, not
necessarily because, he is deliberately withholding such documents from the court,
but because, he did not have the good fortune of ever going to a school from where
he could produce a certificate regarding his date of birth. Para 36 (IV) sounds a note
of caution that an affidavit of a parent or a sibling or other relative would not
ordinarily suffice, to trigger an enquiry into the question of juvenility of the accused,
unless the circumstances of the case are so glaring that the court is left with no
option except to record a prima facie satisfaction that a case for directing an enquiry
is made out. What would constitute a 'glaring case' in which an affidavit may itself be

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sufficient to direct an inquiry, is a question that cannot be easily answered leave
alone answered by enumerating exhaustively the situations where an enquiry may be
justified even in the absence of documentary support for the claim of juvenility. Two
dimensions of that question may all the same be mentioned without in the least
confining the sweep of the expression 'glaring case' to a strait-jacket formulation.
The first of these factors is the most mundane of the inputs that go into consideration
while answering a claim of juvenility like "Physical Appearance" of the accused made
relevant by Rule 12(2) of the Rules framed under the Act. The Rule reads:
12. Procedure to be followed in determination of Age. -
(1) xxxx
(2) The Court or the Board or as the case may be the Committee
shall decide the juvenility or otherwise of the juvenile or the child or
as the case may be the juvenile in conflict with law, prima facie on
the basis of physical appearance or documents, if available, and send
him to the observation home or in jail.
39. Physical appearance of the accused is, therefore, a consideration that ought to
permeate every determination under the Rule aforementioned no matter appearances
are at times deceptive, and depend so much on the race or the region to which the
person concerned belongs. Physical appearance can and ought to give an idea to the
Court at the stage of the trial and even in appeal before the High Court, whether the
claim made by the accused is so absurd or improbable that nothing short of
documents referred to in this Rule 12 can satisfy the court about the need for an
enquiry. The advantage of "physical appearance" of the accused may, however, be
substantially lost, with passage of time, as longer the interval between the incident
and the court's decision on the question of juvenility, the lesser the chances of the
court making a correct Assessment of the age of the accused. In cases where the
claim is made in this Court for the first time, the advantage is further reduced as
there is considerable time lapse between the incident and the hearing of the matter
by this Court.
40. 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 maintained by 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 registration of births
and deaths may not be maintained and if maintained may not be regular and
accurate, and at times truthful. Rule 12(3) of the Rules makes only three certificates
relevant. These are enumerated in Sub-Rule 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;

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 (iii) the birth certificate given by a corporation or a municipal authority or a
panchayat;
41. Non-production of the above certificates or any one of them is not, however,
fatal to the claim of juvenility, for Sub-rule 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. 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.
42. 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:
Being away from a place or person; time of being away; non-existence or
lack of; inattention due to thought of other things.
43. Black's Law Dictionary also explains the meaning of 'absence' as under:
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.
44. 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 non-production may not,
therefore, disentitle the accused of the benefit of the Act nor can it tantamount to
deliberate non-production, giving rise to an adverse inference unless the Court is in
the peculiar facts and circumstances of a case of the opinion that the non-production
is deliberate or intended to either mislead the Court or suppress the truth.
45. 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. 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 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 (6,122) 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

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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.
4 6 . 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. 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 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. With these additions, I respectfully concur
with the judgment proposed by my esteemed Brother Lodha J.
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