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PETITIONER:

ARNIT DAS

Vs.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT: 09/05/2000

BENCH:

K.T.Thomas, R.C.Lahoti

JUDGMENT:

R.C. Lahoti, J.

On 5.9.1998, Crime No. 574/98 under Section 302,

I.P.C. was registered at P.S. Kadamkuan, Patna. According

to the FIR, one Abhishek was shot dead on that day. On

13.9.1998 the petitioner was arrested in connection with the

said offence. On 14.9.1998 the petitioner was produced

before the Additional Chief Judicial Magistrate, Patna who

after recording his statement under Section 164 of the Code

of Criminal Procedure remanded him to Juvenile home, Patna.

The petitioner claimed to have been born on 18.9.1982 and

therefore a juvenile, entitled to protection of The Juvenile

Justice Act, 1986, (hereinafter The Act for short). The

petitioners claim was disputed on behalf of the

prosecution. The A.C.J.M. directed an enquiry to be held

under Section 32 of the Act. The petitioner was referred to

examination by a Medical Board. On receipt of the report of

the Medical Board and on receiving such other evidence as

was adduced on behalf of the petitioner, the A.C.J.M.

concluded that the petitioner was above 16 years of age on

the date of the occurrence and therefore was not required to

be tried by a Juvenile Court. The finding has been upheld

by the Sessions Court in appeal and the High Court in

revision. The petitioner has filed this petition seeking

leave to appeal.

Leave granted.

Two questions have arisen for consideration. Firstly,

by reference to which date the age of the petitioner is

required to be determined for finding out whether he is a

juvenile or not. Secondly, whether the finding as to age,

as arrived at by the Courts below and maintained by the High

Court, can be sustained.

Shri U.R. Lalit, the learned senior counsel for the

appellant has submitted that it is the date of the offence

which is crucial for determining the age of the person

claiming to be juvenile while according to the learned

Additional Solicitor General it is the date on which the

person is brought before the competent authority by

reference to which the age of the person is required to be

determined so as to find whether he is a juvenile or not.

The Juvenile Justice Act, 1986, as its preamble

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speaks, is an Act to provide for the care, protection,

treatment, development and rehabilitation of neglected or

delinquent juvenile and for the adjudication of certain

matters relating to, and disposition of, delinquent

juveniles. The statement of objects and reasons, it will

be useful to reproduce (with emphasis supplied by us) as

under :-

A review of the working of the existing Children Acts

would indicate that much greater attention is required to be

given to children who may be found in situations of social

maladjustment, delinquency or neglect. The justice system

as available for adults is not considered suitable for being

applied to juveniles. It is also necessary that a 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. There is also need for

larger involvement of informal systems and community based

welfare agencies in the care, protection, treatment,

development and rehabilitation of such juveniles.

2. In this context, the proposed legislation aims at

achieving the following objectives :-

(i) to lay down a uniform legal framework for juvenile

justice in the country so as to ensure that no child under

any circumstances is lodged in jail or police lock-up. This

is being ensured by establishing Juvenile Welfare Boards and

Juvenile Courts;

(ii) to provide for a specialised approach towards the

prevention and treatment of juvenile delinquency in its full

range in keeping with the developmental needs of the child

found in any situation of social maladjustment;

(iii) to spell out the machinery and infrastructure

required for the care, protection, treatment, development

and rehabilitation of various categories of children coming

within the purview of the juvenile justice system. This is

proposed to be achieved by establishing observation homes,

juvenile homes for neglected juveniles and special homes for

delinquent juveniles;

(iv) to establish norms and standards for the

administration of juvenile justice in terms of investigation

and prosecution, adjudication and disposition, and care,

treatment and rehabilitation;

(v) to develop appropriate linkages and co-ordination

between the formal system of juvenile justice and voluntary

agencies engaged in the welfare of neglected or socially

maladjusted children and to specifically define the areas of

their responsibilities and roles;

(vi) to constitute special offences in relation to

juveniles and provide for punishments therefor;

(vii) to bring the operation of the juvenile justice

system in the country in conformity with the United Nations

Standard Minimum Rule for the Administration of Juvenile

Justice.

3. As its various provisions come into force in

different parts of the country they would replace the

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corresponding laws on the subject such as the Children Act,

1960 and other State enactments on the subject.

The Bill seeks to achieve the above objects.

Clause (h) of Section 2 of the Act defines juvenile as

under :- 2. Definitions.- In this Act, unless the context

otherwise requires, -

xxx xxx xxx xxx

(h) juvenile means a boy who has not attained the

age of sixteen years or a girl who has not attained the age

of eighteen years;

Section 3 provides where an enquiry has been initiated

against a juvenile and during the course of such enquiry a

juvenile ceases to be such, then, notwithstanding anything

contained in this Act or any other law for the time being in

force, the enquiry may be continued and orders may be made

in respect of such persons as if such person had continued

to be a juvenile. Chapter II of the Act speaks of competent

authorities and institutions for juveniles such as Juvenile

Welfare Boards, Juvenile Courts, Juvenile homes, Special

homes, Observation homes and After-care organisations.

Chapter III makes provision for neglected juveniles wherein

is also included Section 17 making provision for

uncontrollable juveniles. Chapter IV deals with delinquent

juveniles. Provisions contained in Sections 18 to 26

provide for bail and custody of juvenile accused of a

bailable or non- bailable offence, the manner of dealing

with them and the orders that may be passed regarding or

against delinquent juveniles. Proceedings under Chapter

VIII of the Code of Criminal Procedure are not competent

against juvenile. A juvenile and a person not a juvenile

cannot be jointly tried. No disqualification attaches to

conviction of a juvenile for any offence under any law.

Then there are special provisions contained in Section 26 as

to proceedings in respect of juveniles pending in any Court

on the date of coming into force of the Act. Chapter V

(Sections 27 to 40) lay down procedure of competent

authorities generally under the Act and appeals and

revisions from orders of such authorities. Chapter VI

(Sections 41 to 45) provides for special offences in respect

of juveniles. Chapter VII (Sections 46 to 63) contains

miscellaneous provisions.

It is pertinent to note that neither the definition of

juvenile nor any other provision contained in the Act

specifically provides the date by reference to which the age

of a boy or a girl has to be determined so as to find out

whether he or she is a juvenile or not.

The learned Additional Solicitor General submitted

that the answer is to be found in Section 32 of the Act

which reads as under :-

32. Presumption and determination of age. (1)

Where it appears to a competent authority that a person

brought before it under any of the provisions of this Act

(otherwise than for the purpose of giving evidence) is a

juvenile, the competent authority shall make due enquiry as

to the age of that person and for that purpose shall take

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such evidence as may be necessary and shall record a finding

whether the person is a juvenile 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, and the age recorded by the competent authority

to be the age of the person so brought before it shall, for

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

that person.

It is submitted by the learned Additional Solicitor

General that order of the competent authority has been given

a finality subject to decision in appeal and/or revision as

regards the age of that person and the jurisdiction to

record that finding commences when the person is brought

before it. It is this expression which provides the vital

clue to the date by reference to which the age is to be

determined.

There are several provisions in the Act which provide

for first appearance of the person before the competent

authority. Competent Authority has been defined in Clause

(d) of Section 2 to mean, in relation to neglected

juveniles, a Juvenile Welfare Board constituted under

Section 4 of the Act and, in relation to delinquent

juveniles, Juvenile Court and where no such Board or

Juvenile Court has been constituted, includes any Court

empowered under sub-section (2) of Section 7 to exercise the

powers conferred on a Board or a Juvenile Court. Under

sub-section (2) of Section 7, where no Board or Juvenile

Court has been constituted for any area, the powers

conferred on the Board or the Juvenile Court by or under the

Act shall be exercised in that area by the District

Magistrate or the Sub-Divisional Magistrate or any

Metropolitan Magistrate or Judicial Magistrate of the First

Class, as the case may be. The powers conferred on the

Board or Juvenile Court may also be exercised by the High

Court and the Court of Sessions, when the proceeding comes

before them in appeal, revision or otherwise.

The scheme of the Act contemplates its applicability

coming into play only when the person may appear or be

brought before the competent authority. Under Section 8,

when any Magistrate not empowered to exercise the powers of

the Board or Juvenile Court under this Act is of opinion

that the person brought before him under any of the

provisions of this Act (otherwise then for the purpose of

giving evidence) is a juvenile, he shall record such opinion

and forward the juvenile and the record of the proceeding to

the competent authority having jurisdiction over the

proceeding. The competent authority to which the proceeding

is so forwarded shall hold the enquiry as if the juvenile

had originally been brought before it.

Under Section 18, when any person accused of a

bailable or non-bailable offence and apparently a juvenile

is arrested or detained or appears or is brought before a

Juvenile Court, such person shall, notwithstanding anything

contained in the Code of Criminal Procedure, or in any other

law for the time being in force, be released on bail with or

without surety unless there appears reasonable grounds for

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believing that the release is likely to bring him in

association with any known criminal or expose him to moral

danger or that his release would defeat the ends of justice.

In the latter case, the person has to be kept in an

observation home or a place of safety until he can be

brought before a Juvenile Court. The Juvenile Court if not

releasing the person on bail must not commit him to prison

but send him to an observation home or a place of safety

during the pendency of the enquiry before him. Under

Section 20, where a juvenile charged with an offence appears

or is produced before a Juvenile Court, the Juvenile Court

shall hold an enquiry in accordance with the provisions of

Section 39. A reading of all these provisions referred to

herein above makes it very clear that an enquiry as to the

age of the juvenile has to be made only when he is brought

or appears before the competent authority. A Police Officer

or a Magistrate who is not empowered to act or cannot act as

a competent authority has to merely form an opinion guided

by the apparent age of the person and in the event of

forming an opinion that he is a juvenile, he has to forward

him to the competent authority at the earliest subject to

arrangements for keeping in custody and safety of the person

having been made for the duration of time elapsing in

between. The competent authority shall proceed to hold

enquiry as to the age of that person for determining the

same by reference to the date of the appearance of the

person before it or by reference to the date when person was

brought before it under any of the provisions of the Act.

It is irrelevant what was the age of the person on the date

of commission of the offence. Any other interpretation

would not fit in the scheme and phraseology employed by the

Parliament in drafting the Act.

The use of the word is at two places in sub-section

(1) of Section 32 of the Act read in conjunction with a

person brought before it also suggests that the competent

authority is required to record the finding by reference to

an event in presenti before it, i.e. by reference to the

date when the person is brought before it and not by

reference to a remote event i.e. the date on which the

offence was committed.

Prior to the enactment of the Juvenile Justice Act,

1986 there were several laws prevailing in different States

and the need for a uniform legislation for juveniles for the

whole of India was expressed in various forums including the

Parliament. Such uniform legislation was not being enacted

on the ground that the subject matter of such a legislation

fell in the State List of the Constitution. The U.N.

Standard Minimum Rules for the administration of juvenile

justice enabled the Parliament exercising its powers under

Article 253 of the Constitution read with entry 14 of the

Union List to make any law for the whole of India to fulfil

international obligations (see Treatise on the Juvenile

Justice Act by Ved Kumari, Indian Law Institute, New Delhi,

p.5). The said United Nations Standard Minimum Rules,

called Beijing Rules, adopted by the General Assembly in

1985 vide Chapter 2 & 5 of Part-I provide as under:-

2. Scope of the Rules and definitions used

2.1 The following Standard Minimum Rules shall be

applied to juvenile offenders impartially, without

distinction of any kind, for example as to race, colour,

sex, language, religion, political or other opinions,

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national or social origin, property, birth or other status.

2.2 For purposes of these Rules, the following

definitions shall be applied by Member States in a manner

which is compatible with their respective legal systems and

concepts:

(a) A juvenile is a child or young person who, under

the respective legal systems, may be dealt with for an

offence in a manner which is different from an adult.

(b) An offence is any behaviour (act or omission) that

is punishable by law under the respective legal systems;

(c) A juvenile offender is a child or young person who

is alleged to have committed or who has been found to have

committed an offence.

2.3 Efforts shall be made to establish, in each

national jurisdiction, a set of laws, rules and provisions

specifically applicable to juvenile offenders and

institutions and bodies entrusted with the functions of the

administration of juvenile justice and designed :

(a) to meet the varying needs of juvenile offenders,

while protecting their basic rights;

(b) to meet the needs of society; and

(c) to implement the following rules thoroughly and

fairly.

xxx xxx xxx xxx

xxx xxx xxx xxx

5. Aims of juvenile justice

5.1 The juvenile justice system shall emphasize the

well-being of the juvenile and shall ensure that any

reaction to juvenile offenders shall always be in proportion

to the circumstances of both the offenders and the offence.

[Source Juvenile Justice Act by Asutosh Mookerjee

published by S.C. Sarkar & Sons, pp. 20-21]

The term juvenile justice before the onset of

delinquency may refer to social justice; after the onset of

delinquency, it refers to justice in its normal juridical

sense. (See Juvenile Justice : Before and after the

onset of delinquency, working paper prepared by the

Secretariat for 6th U.N. Congress on the Prevention of

Crime and the Treatment of Offenders, quoted at page 4 of

The Treatise, Ved Kumari, ibid). The Juvenile Justice Act

provides for justice after the onset of delinquency. The

societal factors leading to birth of delinquency and the

preventive measures which would check juvenile delinquency

legitimately fall within the scope of social justice. Once

a boy or a girl has assumed delinquency, his or her

treatment and trial at the hands of justice delivery system

is taken care of by the provisions of the Juvenile Justice

Act. The view so taken finds support from the preamble to

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the Act and the statement of objects and reasons. The

preamble speaks for the Act making provisions for the things

post- delinquency. Several expressions employed in the

statement of objects and reasons vocally support this view.

The Act aims at laying down a uniform juvenile justice

system in the country avoiding lodging in jail or police

lock-up of child; and providing for prevention and

treatment of juvenile delinquency, for care, protection,

etc. post- juvenility. In short the field sought to be

covered by the Act is not the one which had led to juvenile

delinquency but the field when juvenile having committed a

delinquency is placed for being taken care of post-

delinquency.

During the course of hearing, the Court posed a

question to Shri U.R. Lalit, the learned senior counsel for

the appellant What happens if a boy or a girl of just less

than 16 or 18 years of age commits an offence and then

leaves the country or for any reasons neither appears nor is

brought before the competent authority until he or she

attains the age of say 50 years ? If the interpretation

suggested by the learned senior counsel for the appellant

were to be accepted, he shall have to be sent to a juvenile

home, special home or an observation home or entrusted to an

after care organisation where there would all be boys and

girls of less than 16 or 18 years of age. Would he be

required to be dealt by a Juvenile Welfare Board or a

Juvenile Court ? The learned senior counsel, with all the

wits at his command, had no answer till the end and had to

give up ultimately. We are, therefore, clearly of the

opinion that the procedure prescribed by the provisions of

the Act has to be adopted only when the competent authority

finds the person brought before it or appearing before it is

found to be under 16 years of age if a boy and under 18

years of age if a girl on the date of being so brought or

such appearance first before the competent authority. The

date of the commission of offence is irrelevant for finding

out whether the person is a juvenile within the meaning of

Clause (h) of Section 2 of the Act. If that would have been

the intendment of the Parliament, nothing had prevented it

from saying so specifically.

Section 3 of the Act also provides a clue to the

legislative intent. It provides for an enquiry initiated

against the juvenile being continued and orders made thereon

even if such person had ceased to be a juvenile during the

course of such enquiry. There would have been no need of

enacting Section 3 if only the age of the juvenile would

have been determinable by reference to the date of the

offence.

Shri U.R. Lalit, the learned senior counsel for the

appellant invited our attention to Santanu Mitra v. State

of W.B. 1998 (5) SCC 697, Bhola Bhagat v. State of Bihar

1997 (8) SCC 720 and Gopinath Ghosh v. State of W.B. 1984

Supp. SCC 228 and to a number of other decisions which we

do not propose to catalogue separately for most of them have

been referred to in paras 14 and 15 of the decision in Bhola

Bhagat (Supra). What has been emphasized by Shri Lalit is

that in all these cases the question whether the person,

arrayed as accused/appellant before the Court, was a

juvenile or not was decided by taking into consideration the

age of the accused on the date of the occurrence or the date

of the commission of the offence. We have carefully pursued

all these decisions. In all these cases the counsel for the

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contesting parties before the Court have made their

submissions by assuming that the date of the offence was the

relevant date for determining the age of the juvenile.

Accordingly this Court, having examined the facts of each

case, recorded a finding as to the age of the accused on the

date of the occurrence of the offence. Generally speaking

these cases are authorities for the propositions that (i)

the technicality of the accused having not claimed the

benefit of the provisions of the Juvenile Justice Act at the

earliest opportunity or before any of the Courts below

should not, keeping in view the intendment of the

legislation, come in the way of the benefit being extended

to the accused appellant even if the plea was raised for the

first time before this Court; (ii) a hypertechnical

approach should not be adopted while appreciating the

evidence adduced on behalf of the accused in support of the

plea that he was a juvenile and if two views may be possible

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

holding the accused to be a juvenile in border line cases;

and (iii) the provisions of the Act are mandatory and while

implementing the provisions of the Act, those charged with

responsibilities of implementation should show sensitivity

and concern for a juvenile. However, in none of the cases

the specific issue by reference to which date (the date of

the offence or the date of production of the person before

the competent authority), the Court shall determine whether

the person was a juvenile or not, was neither raised nor

decided.

A decision not expressed, not accompanied by reasons

and not proceeding on conscious consideration of an issue

cannot be deemed to be a law declared to have a binding

effect as is contemplated by Article 141. That which has

escaped in the judgment is not ratio decidendi. This is the

rule of sub-silentio, in the technical sense when a

particular point of law was not consciously determined.

(See State of U.P. Vs. Synthetics & Chemicals Ltd. 1991

(4) SCC 138, para 41).

Full Bench decision of the High Court of Calcutta in

Dilip Saha Vs. State of West Bengal AIR1978 Calcutta 529

and Full Bench decision in Krishna Bhagwan Vs. State of

Bihar AIR 1989 Patna 217 were strongly relied on by the

learned senior counsel, Shri Lalit submitting that the

question specifically arising for consideration before this

Court was also before the two High Courts. We have examined

the two decisions. In Dilip Saha (supra) the Calcutta High

Court, interpreting the provisions of WB children Act, 1959

which is a pari materia enactment, has taken the view that

the age of the accused at the time of the commission of the

offence is the relevant age for attracting the provisions of

the WB Children Act, 1959 and not his age at the time of

trial. Vide paras 22 to 24 the Full Bench has assigned two

reasons for taking the view which it has done which in our

opinion are both erroneous. One reason is that according to

Section 24 of that Act a child cannot be sentenced to death

or ordinarily to imprisonment then denying the benefit of

the provisions of the Act to a person who was a child on the

date of the offence but had ceased to be so on the date of

commencement of the inquiry or trial, may result in the

child being sentenced to death or imprisonment for life

consequent upon his being held guilty which would be

violative of Article 20 (1) of the Constitution which

prohibits any person on conviction for any offence being

subjected to a penalty greater than that which might have

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been inflicted under the law in force at the time of the

commission of the offence. The High Court has overlooked

that Article 20 (1) of the Constitution would be attracted

only if the applicability of the Act was determined by

reference to the date of the offence but if it was

determined by reference to the date of the commencement of

the inquiry or trial then Article 20 (1) would not apply.

The second reason assigned by the High Court is that the

Investigating Officer may by delaying investigation and

putting up of the accused for trial deny the accused benefit

of the provisions of the Act and thereby defeat the object

and purpose of the Act. Suffice it to say that such an

occasion would not arise at all because before the

commencement of the trial there would be some point of time

when the accused shall have to be brought before the

competent authority and that date would be determinative of

the fact whether the accused was a juvenile or not. As to

Krishna Bhagwans case decided by Patna High Court suffice

it to observe that the opening part of the judgment itself

indicates that the question posed before us was not a

question arising before the High Court. The two questions

considered and answered by the High Court were different.

The High Court was seized of the issues as to what would be

the impact of the event of the child ceasing to be so before

the conclusion of the trial and the effect of the plea under

the Juvenile Justice Act, 1986 having not been taken before

the trial court and the trial having proceeded oblivious of

the provisions of the Act. During the course of discussion

the Full Bench has observed that the juvenile is one who was

below a certain age on the date of the commission of the

offence but the observation is also based on an assumption

and is certainly not a point deliberated upon before the

High Court.

All this exercise would have been avoided if only the

Legislature would have taken care not to leave an ambiguity

in the definition of juvenile and would have clearly

specified the point of time by reference to which the age

was to be determined to find a person a juvenile. The

ambiguity can be resolved by taking into consideration the

Preamble and the Statement of Objects and Reasons. The

Preamble suggests what the Act was intended to deal with.

If the language used by Parliament is ambiguous the Court is

permitted to look into the preamble for construing the

provisions of an Act (M/s. Burrakur Coal Co. Ltd. & M/s.

East Indian Coal Co. Ltd. Vs. The Union of India and

others, AIR 1961 SC 954). A preamble of a statute has been

said to be a good means of finding out its meaning and, as

it were, the key of understanding of it, said this Court in

A. Thangal Kunju Musaliar Vs. M. Venkatachalam Potti AIR

1958 SC 246. The Preamble is a key to un-lock the

legislative intent. If the words employed in an enactment

may spell a doubt as to their meaning it would be useful to

so interpret the enactment as to harmonise it with the

object which the Legislature had in its view. The

Legislative aims and objectives set out in the earlier part

of this judgment go to show that this Legislation has been

made for taking care of the care and custody of a juvenile

during investigation, inquiry and trial, i.e., from a point

of time when the juvenile is available to the law

administration and justice delivery system; it does not

make any provision for a person involved in an offence by

reference to the date of its commission by him. The long

title of the Act too suggests that the content of the Act is

the justice aspect relating to juveniles.

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We make it clear that we have not dealt with the

provisions of Chapter VI dealing with special offences in

respect of juveniles. Prima facie, we feel that the view

which we have taken would create no difficulty even in

assigning meaning to the term juvenile as occurring in

Chapter VI(Sections 41 to 45) of the Act because a juvenile

covered by any of these provisions is likely to fall within

the definition of neglected juvenile as defined in clause

(l) of Section 2 who shall also have to be dealt with by a

Juvenile Board under Chapter III of the Act and the view

taken by us would hold the field there as well. However, we

express no opinion on the scope of Chapter VI of the Act and

leave that aspect to be taken care of in a suitable case.

At any rate in the present context we need not vex our mind

on that aspect. Section 2 which defines juvenile and

neglected juvenile itself begins by saying that the words

defined therein would have the assigned meaning unless the

context otherwise requires. So far as the present context

is concerned we are clear in our mind that the crucial date

for determining the question whether a person is juvenile is

the date when he is brought before the competent authority.

So far as the finding regarding the age of the

appellant is concerned it is based on appreciation of

evidence and arrived at after taking into consideration of

the material available on record and valid reasons having

been assigned for it. The finding arrived at by the learned

A.C.J.M. has been maintained by the Sessions Court in

appeal and the High Court in revision. We find no case

having been made out for interfering therewith.

For the foregoing reasons the appeal is dismissed.