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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1403 OF 2012

Special Leave Petition (Crl) No. 7271 of 2011

Ashwani Kumar Saxena …….. Appellant

Versus

State of M.P. ……. Respondent

J U D G M E N T

K. S. RADHAKRISHNAN, J.

1.Leave granted.

2.We notice that large number of cases are being brought before this

Court against orders passed by the criminal courts, on the claim of

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juvenility under Section 7A of the Juvenile Justice (Care and Protection of

Children) Act, 2000 (for short ‘the J.J. Act’) read with Rule 12 of The

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

‘the 2007 Rules’), primarily for the reason that many of the criminal courts

are not properly appraised of the scope of enquiry contemplated under

those statutory provisions. We find it appropriate in this case to examine

the nature of inquiry contemplated under Section 7A of the J.J. Act read

with Rule 12 of the 2007 Rules, for future guidance and application by the

Courts, Boards and the Committees functioning under the J.J. Act and

Rules.

3.Before considering the above question and other related issues, we

may examine, what transpired in the case on hand.

Appellant – Ashwani Kumar Saxena and two others, namely, Jitender

and Ashish were charge-sheeted for the offences punishable under Section

302 of the Indian Penal Code (for short ‘the IPC’) read with Section 27 of

Arms Act and Section 302 IPC read with Section 34 of the IPC,

respectively, for an offence committed on 19.10.2008 at 12.30 am in front

of Krishna Restaurant, Chhatarpur which resulted in the death of one

Harbal Yadav for which Sessions Case No.28/09 was pending before the

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First Additional Sessions Judge, Chhatarpur, Madhya Pradesh (M.P.). On

11.11.2008 the appellant filed an application before Chief Judicial

Magistrate (CJM) Court, Chhatarpur under Sections 6 and 7 of the J.J. Act

claiming that he was juvenile on the date of the incident and hence, the

criminal court had no jurisdiction to entertain this case and the case be

referred to Juvenile Justice Board and he be granted bail.

4.The appellant stated that his date of birth is 24.10.1990 and hence on

the date of the incident i.e. on 19.10.2008, he was aged only 17 years, 11

months and 25 days and was thus a juvenile. In support of this contention,

he produced the attested mark sheets of the High School of the Board of

Secondary Education, M.P. Bhopal as well as Eighth standard Board

Examination, wherein the date of birth was mentioned as 24.10.1990.

5.Smt. Kiran, widow of victim raised objection to the application

contending that no evidence had been adduced to show that the entry

made in the school Register was correct and normally parents would not

give correct date of birth on the admission Register. Further, it was also

stated that on physical appearance, as well, he was over 21 years of age

and therefore the application be dismissed. Ram Mohan Saxena, father

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of the appellant, was examined as PW1 and he deposed that the date of

birth of his son was 24.10.1990 and that he was born in the house of Balle

Chaurasia in Maharajpur and his son was admitted in Jyoti Higher

Secondary School, wherein his date of birth was also entered as

24.10.1990. Reference was also made to the transfer certificate issued by

the above-mentioned school, since the appellant had studied from 8

th

standard to 10

th

standard in another school, namely, Ceiling Home English

School. Further reliance was also placed on a horoscope, which was

prepared by one Daya Ram Pandey, marked as exhibit P-4. Savitri

Saxena, the mother of the appellant was also examined as PW-4, who also

deposed that his son was born on 24.10.1990 and had his education at

Jyoti Higher Secondary School and the School Admission Register kept in

the school would also indicate his correct date of birth.

6.The C.J.M. court thought of conducting an ossification test for

determination of the age of the appellant. Dr. R.P. Gupta, PW-2 conducted

age identification of the body of the appellant by X ray and opined that

epiphysis of wrist, elbow, knee and iliac crest was fused and he was of the

opinion that the appellant was more than 20 years of age on 14.11.2008

and a report exhibited as P-5 was submitted to that extent. Dr. S.K.

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Sharma, Medical Officer, District Hospital, Chhatarpur was examined as

PW-3, who conducted teeth test on the appellant for age identification.

PW-3 had found that all 32 teeth were there including all wisdom teeth, so

the age of the appellant was more than 21 years.

7.Dr. R.P. Gupta (PW-2) and Dr. S.K. Sharma (PW-3) were cross-

examined by the counsel for the appellant. Dr. R.P. Gupta (PW-2) stated

that there might be margin of 3 years on both side while Dr. S.K. Sharma

(PW-3) had denied the said statement and he was of the opinion that

wisdom teeth never erupt before the age of 17 years and might be

completed upto the age of 21 years. Dr. S.K. Sharma (PW-3) concluded

since all four wisdom teeth were found erupted, the appellant would be

more than 21 years as on 14.11.2008.

8.The C.J.M. Court felt that school records including mark sheets etc.

cannot be relied upon since teacher, who entered those details, was not

examined and stated as follows:

“The date of birth mentioned in all the certificates is 24.10.1990.

But it is significant that such date of birth was recorded on the

basis of the date of birth disclosed by the father while getting

him admitted in the school and neither the school admission

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form, admission register in original were called for and even

statement of no teacher, who got admitted in the school, was

got recorded in the court to determine on the basis of which

document actually the date of birth was got recorded as per the

principle of law laid down by the Honourable Supreme Court

that the date of birth should be relied only when it was recorded

in the school on the basis of our authenticated documents and

the parents used to get the date of birth of the children recorded

for some with variation for some benefit and therefore same

cannot be held as authenticated.”

9.The C.J.M., therefore, placing reliance on the report of the

ossification test took the view that the appellant was more than 18 years of

age on the date of the incident. Consequently, the application was

dismissed vide order dated 1.01.2009. The appellant aggrieved by the

above mentioned order filed Criminal Appeal No. 15 of 2009 before the

First Additional Sessions Judge, Chhatarpur.

10.The appellant again placed considerable reliance on school records

including mark sheets, transfer certificate etc. and submitted that the

reliance placed on the odontology report was wrongly appreciated to

determine the age of the appellant.

The First Additional Sessions Judge stated as follows:

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“On the perusal of entire record it appears that the evidence of

Ram Mohan Saxena who is father of the appellant is not

reliable as he says that the date of birth of appellant was

mentioned by him at the time of admission in school on the

basis of Horoscope. It does not bear the date when it was

prepared. Papers of the Horoscope are crispy. The Pandit

who prepared the Horoscope was not examined for the reason

best known to the appellant. Therefore, the best evidence has

been withheld by the appellant. Therefore, adverse inference is

to be drawn against the appellant. The Horoscope is

manufactured and fabricated and tailored for ulterior motive .”

(emphasis added)

11.The First Additional Sessions Judge though summoned the original

register of Jyoti English School, wanted to know on what basis the date of

birth of the appellant was entered in the School Admission Register. PW1,

the father of the appellant had therefore to rely upon the horoscope on

which First Additional Sessions Judge has commented as follows:

“Horo-Scope was found to be recently made which does not

mention the date when it was prepared and it appears to be

recently made and original register of the Jyoti Higher

Secondary School also does not mention that on what basis the

date of birth of the appellant was recorded first time in the

school register. Therefore, the version of the Ram Mohan

Saxena that the date of birth of the appellant was recorded on

the basis of Horoscope is not supported by the register No.317

of the school. The Horoscope does not bear the date when it

was prepared. It appears to be recently made. The original

school admission form and the person who made the entries

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first time in the school has not been examined in this Court.

Therefore, no credence can be given to such entry in the

school.”

(emphasis added)

12.Learned First Additional Sessions Judge, on the above reasoning,

dismissed the appeal though the Principal of Jyoti Higher Secondary

School himself had appeared before the Court with the School Admission

Register, which showed the date of birth as 24.10.1990. Aggrieved by the

same, the appellant approached the High Court and the High Court

confirmed the order passed by the C.J.M. Court as well as the First

Additional Sessions Judge stating that the appellant had failed to establish

his onus that his age was below 18 years on the date of the incident.

13.We are unhappy in the manner in which the C.J.M. Court, First

Additional Sessions Judge’s Court and the High Court have dealt with the

claim of juvenility. Courts below, in our view, have not properly understood

the scope of the Act particularly, meaning and content of Section 7A of the

J.J. Act read with Rule 12 of the 2007 Rules Before examining the scope

and object of the above mentioned provisions, it will be useful to refer some

of the decided cases wherein the above mentioned provisions came up for

consideration, though on some other context.

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14.In Arnit Das v. State of Bihar , [(2000) 5 SCC 488], this Court held

that while dealing with the question of determination of the age of the

accused for the purpose of finding out, whether he is a juvenile or not,

hyper technical approach should not be adopted while appreciating the

evidence adduced on behalf of the accused in support of the plea that he is

a juvenile and if two views are possible on the same evidence, the court

should lean in favour of holding the accused to be juvenile in borderline

cases. In Arnit Das case, this Court has taken the view that the date of

production before the Juvenile Court was the date relevant in deciding

whether the appellant was juvenile or not for the purpose of trial. The law

laid down in Arnit Das to that extent was held to be not good law, in

Pratap Singh v. State of Jharkhand [(2005) 3 SCC 551], wherein a five

Judge Bench of this Court decided the scope of sections 32 and 2(h), 3, 26,

18 of the Juvenile Justice Act, 1986 and took the view that it was the date

of the commission of the offence and not the date when the offender was

produced before the competent court was relevant date for determining the

juvenility.

15.In Pratap Singh case, this Court held that section 20 of the Act

would apply only in cases in which accused was below 18 years of age on

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01.04.2001 i.e. the date of which the 2000 Act came into force, but it would

have no application in case the accused had attained the age of 18 years

on date of coming into force of the 2000 Act. Possibly to get over the rigor

of Pratap Singh, a number of amendments were introduced in 2000 Act

w.e.f 28.02.2006 by Act 33 of 2006, the scope of which came up for

consideration in Hari Ram v. State of Rajasthan and Another [(2009) 13

SCC 211]. In Hari Ram, this court took the view that the Constitution

Bench judgment in Pratap Singh case was no longer relevant since it was

rendered under the unamended Act. In Hari Ram while examining the

scope of Section 7A of the Act, this Court held that the claim of juvenility

can be raised before any court at any stage and such claim was required to

be determined in terms of the provisions contained in the 2000 Act and the

Rules framed thereunder, even if the juvenile had ceased to be so on or

before the date of commencement of the Act. It was held that a juvenile,

who had not completed 18 years of age on the date of commission of the

offence, was also entitled to the benefits of Juvenile Justice Act, 2000 as

the provisions of section 2(k) had always been in existence even during the

operation of the 1986 Act.

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16.Further, it was also held that on a conjoint reading of sections 2(k),

2(l), 7A, 20 and 49 r/w 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. With regard to the determination of age,

this Court held that the determination of age has to be in the manner

prescribed in Rule 12 of the 2007 Rules and opined that the determination

of age is an important responsibility cast upon the Juvenile Justice Boards.

17.The scope of Section 7A of the Act and Rule 12 of the 2007 Rules

again came up for consideration before this Court in Dharambir v. State

(NCT of Delhi) and Another [(2010) 5 SCC 344]. That was a case where

the appellant was convicted for offences under section 302/34 and 307/34

IPC for committing murder of one of his close relatives and for attempting

to murder his brother. The appellant was not a juvenile within the meaning

of 1986 Act, when the offences were committed but had not completed 18

years of age on that date.

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18.This court held from the language of the Explanation to Section 20

that in all pending cases, which would include not only trial but even

subsequent proceedings by way of revision or appeal etc., the

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

Section 2, even if the juvenile ceases to be a juvenile on or before 1

st

April

2001, when the Act of 2000 came into force, and the provisions of the Act

would have applied as if the said provision had been in full force for all

purposes and for all material times when the alleged offence was

committed. This Court held clause (l) of Section 2 of the Act 2000 provides

that “juvenile in conflict with law” means a “juvenile” who is alleged to have

committed an offence and has not completed eighteenth year of age as on

the date of the commission of such offence. Section 20 also enables the

Court to consider and determine the juvenility of a person even after

conviction by the regular court and also empowers the Court, while

maintaining the conviction to set aside the sentence imposed and forward

the case to the J.J. Board concerned for passing sentence in accordance

with the provisions of the 2000 Act.

19.This Court in Mohan Mali and Another v. State of Madhya

Pradesh [(2010) 6 SCC 669] has again considered the scope of Section

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7A of the Act. That was a case where plea of juvenility was raised before

this court by the convict undergoing sentence. The appellant therein was

convicted under sections 302/34, 326/34 and 324/34 IPC and was

sentenced to life imprisonment and had already undergone 9 years of

imprisonment. In that case a copy of the birth certificate issued by the

Chief Registrar (Birth and Death) Municipal Corporation, Dhar u/s 12 of the

Birth and Death Registration Act 1969 maintained by the Corporation was

produced. This Court noticed that as per that certificate the date of birth of

the accused was 12.11.1976. After due verification, it was confirmed by

the State of Madhya Pradesh that he was a juvenile on the date of

commission of the offence and had already undergone more than the

maximum sentence provided under Section 15 of the 2000 Act by applying

Rule 98 of the 2007 Rules read with Section 15 and 64 of the 2000 Act.

The accused was ordered to be released forthwith.

20.In Jabar Singh v Dinesh and Another [(2010) 3 SCC 757], a two

Judge Bench of this Court while examining the scope of Section 7A of the

Act and Rule 12 of the 2007 Rules and Section 35 of the Indian Evidence

Act took the view that the trial court had the authority to make an enquiry

and take necessary evidence to determine the age. Holding that the High

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Court was not justified in exercise of its revisional jurisdiction to upset the

finding of the trial court, remitted the matter to the trial court for trial of the

accused in accordance with law treating him to be not a juvenile at the time

of commission of the alleged offence. The court noticed that the trial court

had passed the order rejecting the claim of juvenility of respondent No.1

therein on 14.02.2006, the Rules, including Rule 12 laying down the

procedure to be followed in determination of the age of a juvenile in conflict

with law, had not come into force. The court opined that the trial court was

not required to follow the procedure laid down in Section 7A of the Act or

Rule 12 of the Rules and therefore in the absence of any statutory

provision laying down the procedure to be followed in determining a claim

of juvenility raised before it, the Court had to decide the claim of juvenility

on the materials or evidence brought on record by the parties and section

35 of the Evidence Act.

21.The court further stated that the entry of date of birth of respondent

No.1 in the admission form, the school records and transfer certificates did

not satisfy the condition laid down in Section 35 of the Evidence Act in as

much as the entry was not in any public or official register and was not

made either by a public servant in the discharge of his official duty or by

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any person in performance of a duty specially enjoined by the law of the

country and therefore, the entry was not relevant under section 35 of the

Evidence Act for the purpose of determining the age of respondent no.1 at

the time of commission of the alleged offence. We have our own

reservations on the view expressed by the bench in Jabar Singh’s case.

(supra).

22.In Dayanand v. State of Haryana [(2011) 2 SCC 224]., this Court

considered the scope of sections 2(k), 2(l), 7-A 20 and 64 (as amended by

Act 33 of 2006 w.e.f. 22.08.2006]. This Court dealt with a case where the

appellant was aged 16 years 5 months and 19 days on the date of

occurrence, the Court held that he was a juvenile and thus could not be

compelled to undergo the rigorous imprisonment as imposed by the trial

court and affirmed by High Court. This Court set aside the sentence and

ordered that the appellant be produced before the J.J. Board for passing

appropriate sentence in accordance with 2000 Act.

23.In Anil Agarwal and Another v. State of West Bengal [(2011) 2

SCALE 429], this Court was examining the claim of juvenility made at a

belated stage stating that the appellants were minors at the time of the

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alleged offence and hence should not be tried along with the adult co-

accused. The trial court dismissed the appellant’s application as not

maintainable as it had been filed at a belated stage. The High Court, in

revision, while holding that the application had been made belatedly,

granted liberty to appellants to raise their plea of juvenility and to establish

the same before the Sessions Judge at the stage of the examination under

section 313 Cr.P.C.

24.Reversing the finding recorded by the High Court, this Court took the

view that Section 7A of the Act, as it now reads, gives right to any accused

to raise the question of juvenility at any point of time and if such an issue is

raised, the Court is under an obligation to make an inquiry and deal with

that claim. The court held Section 7A has to be read along with Rule 12 of

the 2007 Rules. This Court, therefore, set aside the order of the High Court

and directed the trial court to first examine the question of juvenility and in

the event, the trial court comes to a finding that the appellants were minors

at the time of commission of the offence, they be produced before the J.J.

Board for considering their cases in accordance with the provisions of the

2000 Act.

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25.We may in the light of the judgments referred to herein before and

the principles laid down therein while examining the scope of Section 7 A of

the Act, Rule 12 of the 2007 Rules and Section 49 of the Act examine the

scope and ambit of inquiry expected of a court, the J.J. Board and the

Committee while dealing with a claim of juvenility.

26.We may, however, point out that none of the above mentioned

judgments referred to earlier had examined the scope, meaning and

content of Section 7A, Rule 12 of the 2007 Rules and the nature of the

inquiry contemplated in those provisions. For easy reference, let us extract

Section 7A of the Act and Rule 12 of the 2007 Rules:

“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

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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.”

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

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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 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 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 off cases, where the status of juvenility has

not been determined in accordance with the provisions

contained in subrule(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.

(emphasis added)

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27.Section 7A, obliges the court only to make an inquiry, not an

investigation or a trial , an inquiry not under the Code of Criminal Procedure,

but under the J.J. Act. Criminal Courts, JJ Board, Committees etc., we

have noticed, proceed as if they are conducting a trial, inquiry, enquiry or

investigation as per the Code. Statute requires the Court or the Board only

to make an ‘inquiry’ and in what manner that inquiry has to be conducted is

provided in JJ Rules. Few of the expressions used in Section 7A and Rule

12 are of considerable importance and a reference to them is necessary

to understand the true scope and content of those provisions. Section 7A

has used the expression “court shall make an inquiry”, “take such evidence

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

can accept as evidence something more than an affidavit i.e. the Court or

the Board can accept documents, certificates etc. as evidence need not be

oral evidence.

28.Rule 12 which has to be read along with Section 7A has also used

certain expressions which are also be borne in mind. Rule 12(2) uses the

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

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

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evidence by obtaining”. These expressions in our view re-emphasize the

fact that what is contemplated in Section 7A and Rule 12 is only an inquiry.

Further, the age determination inquiry has to be completed and age be

determined within thirty days from the date of making the application; which

is also an indication of the manner in which the inquiry has to be conducted

and completed. The word ‘inquiry’ has not been defined under the J.J. Act,

but Section 2(y) of the J.J. Act says that all words and expressions used

and not defined in the J.J. Act but defined in the Code of Criminal

Procedure, 1973 (2 of 1974), shall have the meanings respectively

assigned to them in that Code.

29.Let us now examine the meaning of the words inquiry, enquiry,

investigation and trial as we see in the Code of Criminal Procedure and

their several meanings attributed to those expressions.

“Inquiry” as defined in Section 2(g), Cr.P.C. reads as follows:

“Inquiry” means every inquiry, other than a trial, conducted

under this Code by a Magistrate or Court.

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

Procedure which is an act of asking for information and also

consideration of some evidence, may be documentary.

“Investigation” as defined in section 2(h), Cr.P.C. reads as follows:

“Investigation includes all the proceedings under this code for

the collection of evidence conducted by a police officer or by

any person (other than a Magistrate) who is authorized by a

Magistrate in this behalf.

The expressions “trial” has not been defined in the Code of Criminal

Procedure but must be understood in the light of the expressions

“inquiry” or “investigation” as contained in sections 2(g) and 2(h) of

the Code of Criminal Procedure.”

30. The expression “trial” has been generally understood as the

examination by court of issues of fact and law in a case for the purpose of

rendering the judgment relating some offences committed. We find in very

many cases that the Court /the J.J. Board while determining the claim of

juvenility forget that what they are expected to do is not to conduct an

inquiry under Section 2(g) of the Code of Criminal Procedure, but an inquiry

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under the J.J. Act, following the procedure laid under Rule 12 and not

following the procedure laid down under the Code.

31.The Code lays down the procedure to be followed in every

investigation, inquiry or trial for every offence, whether under the Indian

Penal Code or under other Penal laws. The Code makes provisions for not

only investigation, inquiry into or trial for offences but also inquiries into

certain specific matters. The procedure laid down for inquiring into the

specific matters under the Code naturally cannot be applied in inquiring into

other matters like the claim of juvenility under Section 7A read with Rule 12

of the 2007 Rules. In other words, the law regarding the procedure to be

followed in such inquiry must be found in the enactment conferring

jurisdiction to hold inquiry.

32.Consequently, the procedure to be followed under the J.J. Act in

conducting an inquiry is the procedure laid down in that statute itself i.e.

Rule 12 of the 2007 Rules. We cannot import other procedures laid down

in the Code of Criminal Procedure or any other enactment while making an

inquiry with regard to the juvenility of a person, when the claim of juvenility

is raised before the court exercising powers under section 7A of the Act.

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

Courts are still having the hangover of the procedure of trial or inquiry

under the Code as if they are trying an offence under the Penal laws

forgetting the fact that the specific procedure has been laid down in section

7A read with Rule 12.

33.We also remind all Courts/J.J. Board and the Committees functioning

under the Act that a duty is cast on them to seek evidence by obtaining the

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

situations act as a parens patriae because they have a kind of guardianship

over minors who from their legal disability stand in need of protection.

34.“Age determination inquiry” contemplated under section 7A of the Act

r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in

that process, the court can obtain the matriculation or equivalent

certificates, if available. Only in the absence of any matriculation or

equivalent certificates, the court need obtain the date of birth certificate

from the school first attended other than a play school. Only in the

absence of matriculation or equivalent certificate or the date of birth

certificate from the school first attended, the court need obtain the birth

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certificate given by a corporation or a municipal authority or a panchayat

(not an affidavit but certificates or documents). The question of

obtaining medical opinion from a duly constituted Medical Board arises only

if the above mentioned documents are unavailable. In case exact

assessment of the age cannot be done, then the court, for reasons to be

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

juvenile by considering his or her age on lower side within the margin of

one year.

35.Once the court, following the above mentioned procedures, passes

an order; that order shall be the conclusive proof of the age as regards

such child or juvenile in conflict with law. It has been made clear in

subsection (5) or Rule 12 that no further inquiry shall be conducted by the

court or the Board after examining and obtaining the certificate or any other

documentary proof after referring to sub-rule (3) of the Rule 12. Further,

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

Juvenility on its determination.

36.Age determination inquiry contemplated under the JJ Act and Rules

has nothing to do with an enquiry under other legislations, like entry in

Page 26 26

service, retirement, promotion etc. There may be situations where the

entry made in the matriculation or equivalent certificates, date of birth

certificate from the school first attended and even the birth certificate given

by a Corporation or a Municipal Authority or a Panchayat may not be

correct. But Court, J.J. Board or a Committee functioning under the J.J.

Act is not expected to conduct such a roving enquiry and to go behind

those certificates to examine the correctness of those documents, kept

during the normal course of business. Only in cases where those

documents or certificates are found to be fabricated or manipulated, the

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

age determination.

37.We have come across several cases in which trial courts have

examined a large number of witnesses on either side including the conduct

of ossification test and calling for odontology report, even in cases, where

matriculation or equivalent certificate, the date of birth certificate from the

school last or first attended, the birth certificate given by a corporation or a

municipal authority or a panchayat are made available. We have also

come across cases where even the courts in the large number of cases

Page 27 27

express doubts over certificates produced and carry on detailed probe

which is totally unwarranted.

38.We notice that none of the above mentioned principles have been

followed by the courts below in the instant case. The court examined the

question of juvenility of the appellant as if it was conducting a criminal trial

or inquiry under the Code. Notice was issued on the application filed by the

juvenile and in response to that State as well as the widow of the victim

filed objection to the application. The father of the appellant was cross

examined as PW 1 and was permitted to produce several documents

including the mark sheet of class five marked as exhibit P-1, mark sheet of

class eight marked as exhibit P-2, mark sheet of Intermediate Education

Board, MP, marked as exhibit P-3, horoscope prepared by Daya Ram

Pandey marked as exhibit P-4. Further, the mother of the appellant was

examined as PW 4, Transfer Certificate was produced on the side of the

appellant which was marked as exhibit P-6. Noticing that the parents of the

appellant were attempting to show a lesser age of the child so as to escape

from the criminal case, the Court took steps to conduct ossification test.

Dr. R.P. Gupta was examined as PW 2 who had submitted the report. Dr.

S.K. Sharma was examined as PW 3. Placing considerable reliance on the

Page 28 28

report submitted after conducting ossification test, the application was

dismissed by the trial court.

39.We find that the appellate court, of course, thought it necessary to

summon the original register of Jyoti English School where the appellant

was first admitted and the same was produced by the Principal of the

School. We have called for the original record from the Court and perused

the same. On 4.09.2009, the Sessions Judge passed the following order:

04.02.09. Court found it necessary to call for the Admission Register of the

appellant in Jyoti High Secondary School and ordered the production of the

Register of Admission, from the concerned school in ST. No. 29/09.

Sd/-

Judge

On 09.02.2009, another order was passed as follows:

From Jyoti High Secondary School, the Principal of the school was present

along with the concerned admission register. He produced the copy of the

admission register before the court after proving its factum . Register was

returned after the perusal. The Counsel is directed that if he wants to

produce any other evidence/documents, he may do so.

(emphasis added)

Sd/-

Judge

On 11.02.09, after hearing the counsel on either side, the Court passed the

order:

Page 29 29

The counsel for the state Shri Nayak, APG stated/conceded that in respect

to refute/rebuttal of the Admission Register the state do not wish to file

further Evidence/documents .

(emphasis added)

Sd/-

Judge

On 12.02.2009, after hearing counsel on either side, the Court again

passed the order:

In presence of the advocates, order pronounced in the open court that this

Appeal is hereby Dismissed.

Sd/-

Judge

40.We fail to see, after having summoned the admission register of the

Higher Secondary School where the appellant had first studied and after

having perused the same produced by the principal of school and having

noticed the fact that the appellant was born on 24.10.1990, what prompted

the Court not to accept that admission register produced by the principal of

the school. The date of birth of the appellant was discernible from the

school admission register. Entry made therein was not controverted or

countered by the counsel appearing for the State or the private party, which

Page 30 30

is evident from the proceedings recorded on 11.02.2009 and which

indicates that they had conceded that there was nothing to refute or rebut

the factum of date of birth entered in the School Admission Register. We

are of the view the above document produced by the principal of the school

conclusively shows that the date of birth was 24.10.1990 hence section

12(3)(a)(i)(ii) has been fully satisfied.

41.The Sessions Judge, however, has made a fishing inquiry to

determine the basis on which date of birth was entered in the school

register, which prompted the father of the appellant to produce a

horoscope. The horoscope produced was rejected by the Court stating that

the same was fabricated and that the Pandit who had prepared the

horoscope was not examined. We fail to see what types of inquiries are

being conducted by the trial courts and the appellate courts, when the

question regarding the claim of juvenility is raised.

42.Legislature and the Rule making authority in their wisdom have in

categorical terms explained how to proceed with the age determination

inquiry. Further, Rule 12 has also fixed a time limit of thirty days to

determine the age of the juvenility from the date of making the application

for the said purpose. Further, it is also evident from the Rule that if

the assessment of age could not be done, the benefit would go to the

Page 31 31

child or juvenile considering his / her age on lower side within the margin of

one year.

43.The Court in Babloo Parsi v. State of Jharkhand and Another

[(2008) 13 SCC 133] held, in a case where the accused had failed to

produce evidence/certificate in support of his claim, medical evidence can

be called for. The court held that the medical evidence as to the age of a

person, though a useful guiding factor is not conclusive and has to be

considered along with other cogent evidence. This court set aside the

order of the High Court and remitted the matter to the Chief Judicial

Magistrate heading the Board to re-determine the age of the accused.

44.In Shah Nawaz v. State of Uttar Pradesh and Another [(2011) 13

SCC 751], the Court while examining the scope of Rule 12, has reiterated

that medical opinion from the Medical Board should be sought only when

matriculation certificate or equivalent certificate or the date of birth

certificate from the school first attended or any birth certificate issued by a

Corporation or a municipal authority or a panchayat or municipal is not

available. The court had held entry related to date of birth entered in the

mark sheet is a valid evidence for determining the age of the accused

person so also the school leaving certificate for determining the age of the

appellant.

Page 32 32

45. We are of the view that admission register in the school in which the

candidate first attended is a relevant piece of evidence of the date of birth.

The reasoning that the parents could have entered a wrong date of birth in

the admission register hence not a correct date of birth is equal to thinking

that parents would do so in anticipation that child would commit a crime in

future and, in that situation, they could successfully raise a claim of

juvenility.

46.We are, therefore, of the view that the appellant has successfully

established his juvenility on the date of occurrence of the crime i.e.

19.10.2008 on which date he was aged only 17 years 11 months 25 days.

The appellant has already faced the criminal trial in sessions case No. 28

of 2009 and the Court found him guilty along with two others under section

302 IPC and has been awarded life imprisonment which is pending in

appeal, before the Hon’ble Court at Jabalpur as Crime Appeal No. 1134 of

2009.

47.We notice that the accused is also involved in few other criminal

cases as well. Since we have found that the appellant was a juvenile on

the date of the incident, in this case, we are inclined to set aside the

Page 33 33

sentence awarded in sessions case No. 28/2009 by Sessions Court and

direct the High Court to place the records before J.J. Board for awarding

appropriate sentence in accordance with the provisions of Act, 2000, and if

the appellant has already undergone the maximum sentence of three years

as prescribed in the Act, needless to say he has to be let free, provided he

is not in custody in any other criminal case. We are informed that the

appellant is involved in few other criminal cases as well, those cases will

proceed in accordance with law.

48.The appeal is allowed. Sentence awarded by the court below is

accordingly set aside and the case records be placed before the concerned

J.J. Board for awarding appropriate sentence.

..…………………………… J.

(K.S. Radhakrishnan)

………………………… ..…J.

(Madan B. Lokur)

New Delhi;

September 13, 2012