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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL MISC. PETITION NO.17870 OF 2014

IN

SPECIAL LEAVE PETITION (CRL.) NO.2838 OF 2000

ABDUL RAZZAQ …APPELLANT

VERSUS

STATE OF U.P. …RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL, J.

1.This application has been filed under Section 7-A of the Juvenile

Justice (Care and Protection of Children) Act, 2000 (for short “the

Act”) seeking release of the petitioner who has been found to be

juvenile. Since special leave petition and review petition have been

dismissed and we are inclined to allow the application, orders

dismissing the special leave petition and review petition will stand

recalled.

2.The petitioner was tried for the offence under Section 302 of the

Indian Penal Code (‘IPC’) for causing the death of Amir Ullah on 18

th

February, 1979 at Firozabad, Uttar Pradesh. He was convicted under

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Section 302 and sentenced to undergo life imprisonment by the Court

of Sessions Judge, Agra in Sessions Trial No.325 of 1979 vide

judgment dated 29

th

September, 1980.

3.The conviction and sentence of the petitioner was affirmed by

the High Court of Judicature at Allahabad on 21

st

February, 2000.

This Court vide Order dated 29

th

September, 2000 dismissed the

special leave petition. Review Petition filed against the said order

was dismissed on 20

th

July, 2010.

4.Thereafter, the High Court of Allahabad vide order dated 24

th

May, 2012 in Crl. (PIL) Misc. W.P. No.855 of 2012 Sister Sheeba Jose

vs. State of U.P. & Ors. directed suo motu action under proviso to

Section 7-A of the Act. The U.P. State Legal Services Authority took

steps for implementation of the said judgment. The Juvenile Justice

Board, Agra vide Order dated 2

nd

July, 2013 examined the case of

the petitioner and held that on the date of incident, the petitioner was

less than 18 years of age.

5.On above basis, the present application has been filed with a

prayer that the petitioner be released from custody. It has also been

stated in the application that the petitioner has already undergone

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more than 14 years of imprisonment.

6.Notice was issued by this Court on 8

th

October, 2014, in

response to which, the State of U.P. has entered appearance.

7.We have heard learned counsel for the parties.

8.Learned counsel for the petitioner pointed out that since the

petitioner was a juvenile on the date of occurrence, he is entitled to

the benefit of provisions of the Act. It has also been pointed out that

his date of birth was noted to be 18

th

September, 1962 in the

judgment of the High Court. Since he was taken to be more than 16

years of age while the age of juvenility prior to the present Act was

18 years, the petitioner was not held entitled to the benefit of the

said Act. The law having changed with retrospective effect, the

petitioner claims the 76 benefit of juvenility.

9.The legal position on the subject is well settled. A person below

18 years at the time of the incident can claim benefit of the Act any

time. Reference may be made to Section 7-A and 20 of the Act and

Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules,

2007 which are as follows:

“Section 7-A. 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

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the date of commission of the offence, the court shall

make an enquiry, 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 order, and the sentence if any, passed by a

court shall be deemed to have no effect.”

“Section 20. Special provision in respect of pending

cases.—Notwithstanding anything contained in this Act,

all proceedings in respect of a juvenile pending in any

court in any area on the date on which this Act comes

into force in that area, shall be continued in that court

as if this Act had not been passed and if the court finds

that the juvenile has committed an offence, it shall

record such finding and instead of passing any sentence

in respect of the juvenile, forward the juvenile to the

Board which shall pass orders in respect of that juvenile

in accordance with the provisions of this Act as if it had

been satisfied on inquiry under this Act that a juvenile

has committed the offence:

Provided that the Board may, for any adequate and

special reason to be mentioned in the order, review the

case and pass appropriate order in the interest of such

juvenile.

Explanation.—In all pending cases including trial,

revision, appeal or any other criminal proceedings in

respect of a juvenile in conflict with law, in any court,

the determination of juvenility of such a juvenile shall

be in terms of clause (l) of Section 2, even if the

juvenile ceases to be so on or before the date of

commencement of this Act and the provisions of this

Act shall apply as if the said provisions had been in

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force, for all purposes and at all material times when

the alleged offence was committed.”

“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

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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 conclusive

proof specified in sub-rule (3), the court or the Board or

as the 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 7-A, 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.”

10.The above provisions clearly show that even if a person was not

entitled to the benefit of juvenilities under the 1986 Act or the

present Act prior to its amendment in 2006, such benefit is available

to a person undergoing sentence if he was below 18 on the date of

the occurrence. Such relief can be claimed even if a matter has been

finally decided, as in the present case.

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11.In Hari Ram vs. State of Rajasthan and Anr .

1

, it was

observed:

“49. The effect of the proviso to Section 7-A introduced

by the amending Act makes it clear that the claim of

juvenility may be raised before any court which 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 the Act and the Rules made

thereunder which includes the definition of “juvenile” in

Sections 2(k) and 2(l) of the Act even if the juvenile had

ceased to be so on or before the date of

commencement of the Act.

(emphasis supplied)

50. The said intention of the legislature was reinforced

by the amendment effected by the said amending Act

to Section 20 by introduction of the proviso and the

Explanation thereto, wherein also it has been clearly

indicated that in any pending case in any court the

determination of juvenility of such a juvenile has to be

in terms of Section 2(l) even if the juvenile ceases to be

so “on or before the date of commencement of

this Act” and it was also indicated that the provisions

of the Act would apply as if the said provisions had been

in force for all purposes and at all material times when

the alleged offence was committed.

(emphasis supplied)

51. Apart from the aforesaid provisions of the 2000 Act,

as amended, and the Juvenile Justice Rules, 2007, Rule

98 thereof has to be read in tandem with Section 20 of

the Juvenile Justice Act, 2000, as amended by the

Amendment Act, 2006, which provides that even in

disposed of cases of juveniles in conflict with law, the

State Government or the Board could, either suo motu

or on an application made for the purpose, review the

case of a juvenile, determine the juvenility and pass an

appropriate order under Section 64 of the Act for the

immediate release of the juvenile whose period of

detention had exceeded the maximum period provided

in Section 15 of the Act i.e. 3 years.

1 (2009) 13 SCC 211

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52. In addition to the above, Section 49 of the Juvenile

Justice Act, 2000 is also of relevance and is reproduced

hereinbelow:

“49. 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.”

53. Sub-section (1) of Section 49 vests the competent

authority with the power to make due inquiry as to the

age of a person brought before it and for the said

purpose to take such evidence as may be necessary

(but not an affidavit) and shall record a finding as to

whether the person is a juvenile or a child or not,

stating his age as nearly as may be.

54. Sub-section (2) of Section 49 is of equal importance

as it provides that no order of a competent authority

would be deemed to have become invalid merely on

account of any subsequent proof that the person, in

respect of whom an order is made, is not a juvenile or a

child, and the age recorded by the competent authority

to be the age of the person brought before it, would, for

the purpose of the Act, be deemed to be the true age of

a child or a juvenile in conflict with law.

55. Sub-rule (3) of Rule 12 indicates that the age

determination inquiry by the court or Board, by seeking

evidence, is to be derived from:

(i) the matriculation or equivalent certificates, if

available, and in the absence of the same;

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

than a play school) first attended; and in the absence

whereof;

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

municipal authority or a panchayat;

56. Clause (b) of Rule 12(3) provides that only in the

absence of any such document, would a medical opinion

be sought for from a duly constituted Medical Board,

which would declare the age of the juvenile or the child.

In case exact assessment of the age cannot be done,

the court or the Board or as the case may be, the Child

Welfare Committee, for reasons to be recorded by it,

may, if considered necessary, give benefit to the child or

juvenile by considering his/her age on the lower side

within a margin of one year.

57. As will, therefore, be clear from the provisions of

the Juvenile Justice Act, 2000, as amended by the

Amendment Act, 2006 and the Juvenile Justice Rules,

2007, the scheme of the Act is to give children, who

have, for some reason or the other, gone astray, to

realise their mistakes, rehabilitate themselves and

rebuild their lives and become useful citizens of society,

instead of degenerating into hardened criminals.

58. Of the two main questions decided in Pratap Singh

case [(2005) 3 SCC 551: 2005 SCC (Cri) 742], one point

is now well established that the juvenility of a person in

conflict with law has to be reckoned from the date of

the incident and not from the date on which cognizance

was taken by the Magistrate. The effect of the other

part of the decision was, however, neutralised by virtue

of the amendments to the Juvenile Justice Act, 2000, by

Act 33 of 2006, whereunder the provisions of the Act

were also made applicable to juveniles who had not

completed eighteen years of age on the date of

commission of the offence.

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

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Act and were undergoing sentence upon being

convicted.”

12.The above view was reiterated by a bench of three Judges in

Abuzar Hossain alias Gulam Hossain vs. State of West Bengal

2

,

as follows:-

“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 hard-and-fast rule

can be prescribed that they must be prima facie

2 (2012) 10 SCC 489

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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 7-A 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.

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13.Again, in Union of India vs. Ex-GNR Ajeet Singh

3

it was

held:-

“19. The provisions of the JJ Act have been interpreted

by this Court time and again, and it has been clearly

explained that raising the age of “juvenile” to 18 years

from 16 years would apply retrospectively. It is also

clear that the plea of juvenility can be raised at any

time, even after the relevant judgment/order has

attained finality and even if no such plea had been

raised earlier. Furthermore, it is the date of the

commission of the offence, and not the date of taking

cognizance or of framing of charges or of the conviction,

that is to be taken into consideration. Moreover, where

the plea of juvenility has not been raised at the initial

stage of trial and has been taken only on the appellate

stage, this Court has consistently maintained the

conviction, but has set aside the sentence.

(See Jayendra v. State of U.P. [(1981) 4 SCC 149 : 1981

SCC (Cri) 809 : AIR 1982 SC 685], Gopinath Ghosh v.

State of W.B. [1984 Supp SCC 228 : 1984 SCC (Cri) 478 :

AIR 1984 SC 237], Bhoop Ram v. State of U.P. [(1989) 3

SCC 1 : 1989 SCC (Cri) 486 : AIR 1989 SC 1329] , Umesh

Singh v. State of Bihar [(2000) 6 SCC 89 : 2000 SCC (Cri)

1026 : AIR 2000 SC 2111], Akbar Sheikh v. State of W.B.

[(2009) 7 SCC 415 : (2009) 3 SCC (Cri) 431], Hari Ram v.

State of Rajasthan [(2009) 13 SCC 211 : (2010) 1 SCC

(Cri) 987], Babla v. State of Uttarakhand [(2012) 8 SCC

800 : (2012) 3 SCC (Cri) 1067] and Abuzar Hossain v.

State of W.B. [(2012) 10 SCC 489 : (2013) 1 SCC (Cri)

83])”

14.Reference may also be made to Jintendra Singh alias

Babboo Singh and Anr. vs. State of Uttar Pradesh

4

laying down

as follows:

3.(2013) 4 SCC 186

4.(2013) 11 SCC 193

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“80. The settled legal position, therefore, is that in all

such 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 concerned will

continue and be taken to their logical end except that

the court upon finding the juvenile guilty would not pass

an order of sentence against him. Instead he shall be

referred to the Board for appropriate orders under the

2000 Act. Applying that proposition to the case at hand

the trial court and the High Court could and indeed were

legally required to record a finding as to the guilt or

otherwise of the appellant. All that the courts could not

have done was to pass an order of sentence, for which

purpose, they ought to have referred the case to the

Juvenile Justice Board.

81. The matter can be examined from another angle.

Section 7-A(2) of the Act prescribes the procedure to be

followed when a claim of juvenility is made before any

court. Section 7-A(2) is as under:

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

is raised before any court.—(1) ***

(2) If the court finds a person to be a juvenile on the

date of commission of the offence under sub-section

(1), it shall forward the juvenile to the Board for passing

appropriate order, and the sentence if any, passed by a

court shall be deemed to have no effect.”

82. A careful reading of the above would show that

although a claim of juvenility can be raised by a person

at any stage and before any court, upon such court

finding the person to be a juvenile on the date of the

commission of the offence, it has to forward the juvenile

to the Board for passing appropriate orders and the

sentence, if any, passed shall be deemed to have (sic

no) effect. There is no provision suggesting, leave alone

making it obligatory for the court before whom the

claim for juvenility is made, to set aside the conviction

of the juvenile on the ground that on the date of

commission of the offence he was a juvenile, and hence

not triable by an ordinary criminal court. Applying the

maxim expressio unius est exclusio alterius, it would be

reasonable to hold that the law insofar as it requires a

reference to be made to the Board excludes by

necessary implication any intention on the part of the

legislature requiring the courts to set aside the

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conviction recorded by the lower court. Parliament, it

appears, was content with setting aside the sentence of

imprisonment awarded to the juvenile and making of a

reference to the Board without specifically or by

implication requiring the court concerned to alter or set

aside the conviction. That perhaps is the reason why

this Court has in several decisions simply set aside the

sentence awarded to the juvenile without interfering

with the conviction recorded by the court concerned

and thereby complied with the mandate of Section 7-

A(2) of the Act.”

15.Faced with the above, learned counsel for the State fairly stated

that the petitioner may be entitled to the relief sought. He, however,

points out that a person claiming juvenile must approach the trial

court first. Since in the present case, the High Court has declined to

entertain an application as per order dated 2

nd

December, 2014 a

copy of which has been produced, we consider it appropriate to

entertain this application.

16.In view of the above undisputed legal position, we have no

option but to allow this application and while leaving the conviction

undisturbed, set aside the sentence. The petitioner may be released

from custody forthwith unless required in any other case.

……..…………………………….J.

[T.S. THAKUR]

.….………………………………..J.

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[ ADARSH KUMAR GOEL ]

NEW DELHI

MARCH 16, 2015

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