Reserved AFR

Reserved on: 11/08/2016

Delivered on: 21/09/2016

Court No. - 21

Case :- CRIMINAL REVISION No.4694 OF

2011

Petitioner:- Jai Prakash Tiwari

Respondent :- State of U.P. & Another

Counsel for

Petitioner :-

Servesh Kumar Mishra

Counsel for

Respondent :-

Government Advocate, Birendra

Singh, Mangala Prasad Rai

Hon'ble V.K. Shukla, J.

Hon'ble Ramesh Sinha,J.

Hon'ble Bharat Bhushan,J.

(Oral : V.K. Shukla,J.)

While Criminal Revision No.4694/2011 (Jai Prakash Tiwari vs. State

of U.P. and another) was being heard, a Learned Single Judge of this Court

keeping in view the fact that the accused claimed juvenility before the Trial

Court in Case Crime No.122 of 2008 under Section 302 and 394 IPC, P.S.

Dhata, District Fatehpur by filing in support of the same, a Junior High

School certificate and a High School certificate, that carried date of birth as

09.08.1991 and as the incident has taken place on 14.09.2008, the

accused was accepted as juvenile on the date of occurrence as he fell

below 18 years on his age being counted from 9th August, 1991. The

Additional Sessions Judge accordingly proceeded to pass order dated

29.10.2011 on the application of accused-Subhadra Pathak, under Section

7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000

(here-in-after referred to as the '2000 Act'). The Additional Sessions Judge

while passing the order has taken note of the provisions as are contained

under Rule 12(3) of the Central Rules and the Revisionist before this Court

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is complaining that he ought to have followed the procedure envisaged

under U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004

and ought to have considered certificates beginning from Primary School

till High School (failed), the accused would not have been adjudged as a

juvenile.

Faced with this situation, as the issue in Revision was whether the

procedure provided under The Juvenile Justice (Care and Protection of

Children) Rules, 2007 (herein-after to be referred to as the 'Central Rules')

should apply to the facts of the case or the procedure provided under the

U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004, for

determination of the age of the accused ought to have been adhered and

in view of the fact that issue so raised was of general importance,

following issues have been referred to be answered by the Larger Bench:

1.Whether the U.P. Juvenile Justice (Care & Protection of Children ) Rules 2004

need be recast consequent upon addition of section 7-A of the Juvenile Justice

(Care & Protection of Children) Act, 2000 (as amended by Act No. 33 of 2006).

2.And in case it is found that they need not be recast whether the U.P. Juvenile

Justice (Care & Protection of Children )Rules 2004 framed by State Government

or The Juvenile Justice (Care & Protection of Children) Rules 2007 framed by

the Central Government shall apply to the matter, in Uttar Pradesh.

Shri Sarvesh Kumar Mishra, Advocate appearing on behalf of

Revisionist submitted that procedure provided under U.P. Juvenile Justice

(Care and Protection of Children) Rules 2004, ought to have been adhered

to and Central Rules ought not have been pressed into service.

Shri Imran Ullah, learned Additional Advocate General, based on the

statutory provisions holding the field, has submitted that procedure

provided under Rule 12(5) of Central Rules will have to be adhered to as

on date under the scheme of things provided for.

Shri Birendra Singh, Advocate and Shri M.P. Rai, Advocate

representing the accused have also toed the same line of argument as has

been toed by the State of U.P.

In order to answer the issues that have been so raised, the

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legislative background as well as relevant statutory provisions holding the

field will have to be looked into.

The Parliament felt it necessary that uniform juvenile justice system

should be available throughout the country which should make adequate

provision for dealing with all aspects in the changing social, cultural and

economic situation in the country and there was also need for larger

involvement of informal systems and community based welfare agencies in

the care, protection, treatment, development and rehabilitation of such

juveniles and with these objectives in mind, it enacted Juvenile Justice Act,

1986 (for short, ‘1986 Act’).

Looking to the working of Juvenile Justice Act, 1986 review of its

working was carried out, and '1986 Act' was replaced by the Juvenile

Justice (Care and Protection of Children) Act, 2000 (for short, ‘2000 Act’).

2000 Act to carry forward the constitutional philosophy engrafted in

Articles 15(3), 39(e) and (f), 45 and 47 of the Constitution and same also

incorporates the standards prescribed in the Convention on the Rights of

the Child, United Nations Standard Minimum Rules for the Administration

of Juvenile Justice, 1985, the United Nations Rules for the Protection of

Juveniles Deprived of their Liberty (1990) and all other relevant

international instruments. Clause (k) of Section 2 defines “juvenile” or

“child” to mean a person who has not completed eighteenth year of age.

Clause (l) of Section 2 defines “juvenile in conflict with law” to mean a

juvenile who is alleged to have committed an offence and has not

completed eighteenth year of age on the date of commission of such

offence. Chapter II of Juvenile Justice Act, 2000 deals exclusively with

juveniles in conflict with law who are alleged to have committed offence

which are otherwise punishable under the general law of crimes.

Section 3 of 2000 Act provides for continuation of inquiry in respect

of juvenile who has ceased to be a juvenile. It reads as under:

“S.3 . Continuation of inquiry in respect of juvenile who has ceased to be

a juvenile.—Where an inquiry has been initiated against a juvenile in

conflict with law or a child in need of care and protection and during the

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course of such inquiry the juvenile or the child ceases to be such, then,

notwithstanding anything contained in this Act or in any other law for the

time being in force, the inquiry may be continued and orders may be made

in respect of such person as if such person had continued to be a juvenile

or a child.”

Chapter II of 2000 Act deals with juvenile in conflict with law. This

Chapter comprises of Sections 4 to 28. Section 4 provides for constitution

of juvenile justice board and its composition. Section 5 provides for

procedure, etc. in relation to juvenile justice board. Section 6 deals with

the powers of juvenile justice board. Section 7 provides for the procedure

to be followed by Magistrate not empowered under the Act. Section 18 of

the Act prohibits joint proceedings and trial of juvenile and a person who is

not a juvenile and the punishment that can be awarded to a juvenile has

been provided for in Section 15 of the Act provides for the order that can

be passed regarding juvenile. Relevant provisions i.e. Sections 6 is being

quoted as under:

“S.6 . Powers of Juvenile Justice Board.—(1) Where a Board has been

constituted for any district, such Board shall, notwithstanding anything

contained in any other law for the time being in force but save as

otherwise expressly provided in this Act, have power to deal exclusively

with all proceedings under this Act relating to juvenile in conflict with law.

(2) The powers conferred on the Board by or under this Act may also be

exercised by the High Court and the Court of Session, when the

proceeding comes before them in appeal, revision or otherwise.

Section 49 of 2000 Act deals with presumption and determination of

age. This Section reads as under:

“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.”

Sections 52 and 53 deal with appeals and revision. Section 54

provides for procedure in inquiries, appeals and revision proceedings,

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which reads as follows:

52. Appeals.—

Subject to the provisions of this section, any person aggrieved by an order

made by a competent authority under this Act may, within thirty days from

the date of such order, prefer an appeal to the Court of Session: Provided

that the Court of Session may entertain the appeal after the expiry of the

said period of thirty days if it is satisfied that the appellant was prevented

by sufficient cause from filing the appeal in time.

(2) No appeal shall lie from—

(a) any order of acquittal made by the Board in respect of a juvenile

alleged to have committed an offence; or

(b) any order made by a Committee in respect of a finding that a person is

not a neglected juvenile.

(3) No second appeal shall lie from any order of the Court of Session

passed in appeal under this section.

53. Revision.—The High Court may, at any time, either of its own motion or

on an application received in this behalf, call for the record of any

proceeding in which any competent authority or Court of Session has

passed an order for the purpose of satisfying itself as to the legality or

propriety of any such order and may pass such order in relation thereto as

it thinks fit: Provided that the High Court shall not pass an order under this

section prejudicial to any person without giving him a reasonable

opportunity of being heard.

“S.54 . Procedure in inquiries, appeals and revision proceedings.—(1)Save

as otherwise expressly provided by this Act, a competent authority while

holding any inquiry under any of the provisions of this Act, shall follow

such procedure as may be prescribed and subject thereto, shall follow, as

far as may be, the procedure laid down in the Code of Criminal Procedure,

1973 (2 of 1974) for trials in summons cases.

(2) Save as otherwise expressly provided by or under this Act, the

procedure to be followed in hearing appeals or revision proceedings

under this Act shall be, as far as practicable, in accordance with the

provisions of the Code of Criminal Procedure, 1973(2 of 1974).”

In the State of U.P., in exercise of power conferred under Section 68

of the Juvenile Justice Care and Protection 2000 Act (Act No.56 of 2000),

Rules have been framed known as, the U.P. Juvenile Justice (Care and

Protection of Children) Rules, 2004 (herein-after to be referred to as the

'U.P. Rules'). The relevant Rule for the purpose of consideration of issue

raised before us is Rule 22. Rule 22 reads as follows:

“22. Procedure to be followed by a Board in holding inquiries and the

determination of age.-

(1) In all cases under the Act the proceedings shall be conducted in as

simple a manner as possible and care shall be taken to ensure that the

juvenile or child against whom the proceedings have been instituted is

given home like atmosphere during the proceedings.

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(2) When witnesses are produced for examination, the Board shall be free

to use the power under Section 165 of the Indian Evidence At, 1872, (Act

No.1 of 1872), to question them so as to bring out any point that may go in

favour of the juvenile or the child.

(3) While examining a juvenile or child and recording his statement, the

competent authority shall be free to address the juvenile or child in any

manner that may seem suitable, in order to put the juvenile or child at

ease and to elicit the true facts, not only in respect of the offence of which

the juvenile or child is accused, but also in respect of the home and social

surroundings and the influence to which the juvenile or child might have

been subjected.

(4) The record of the examination shall be in such form as the Board may

consider suitable having record to the contents of the statement and

circumstances in which it was made.

(5) In every case concerning a juvenile or child, the Board shall either

obtain-

(i) a birth certificate given by a corporation or a municipal authority;

or

(ii) a date of birth certificate from the school first attended; or

(iii) matriculation or equivalent certificates, if available; and

(iv) in the absence of (i) to (iii) above, the medical opinion by a duly

constituted Medical Board, subject to a margin of one year, in deserving

cases for the reasons to be recorded by such Medical Board, regarding

his age and, when 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.

(6) The State Government shall recognize voluntary organizations, which

have 10 years experience of child welfare to supervise and submit

periodical reports, as directed by the Board regarding the orders passed

under Clauses (b) and (c) of sub-section (1) of Section 15 of the Act.

(7) The Board shall, in Form-I, order a Probation Officer, or otherwise to

conduct a special investigation, reporting on the character and

antecedents of the juvenile or child with a view to assess the best

possible mode for placement, such as, with the family, an institution or

otherwise permissible under the Act.

(8_ When a juvenile or child is placed under the care of a parent or a

guardian and the Board considers it expedient to place the juvenile or

child under the supervision of a probation officer, it shall issue a

supervision order in Form-II.

(9) The competent authority may, while making an order placing a juvenile

under the care of a parent, guardian or fit person, as the case may be,

direct such parent, guardian or fit person to enter into a bond in Form IV

with or without sureties.

(10) Whenever the Board orders a juvenile or child to be kept in an

institution, it shall forward to the Superintendent of such institution a

copy of its order, in Form III with particulars of the home and parents or

guardian and previous record.

(11) The juvenile or child shall be lodged in a home closest to place where

he belongs.

(12) The Superintendent of an institution, certified as special home under

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sub-section (2) of Section 9 of the Act, shall be informed in advance by the

Board before any juvenile or child is committed to it.

(13) The Superintendent of the said institution may, on receipt of the

information, intimation in writing objections, if any, to the committal of the

juvenile or child and the objections shall be taken into consideration by

the Board before the juvenile or child is committed to the said institution.

(14) In case the Board orders the parent of the juvenile or child, or the

juvenile or child to pay a fine, the amount realized shall be deposited in

Government Treasury.”

By Act 33 of 2006, the Parliament brought significant changes in

2000 Act. Section 7A provides for procedure to be followed when claim of

juvenility is raised before any court. Section 20 dealt with pending cases. It

reads as follows:

“S.7A. Procedure to be followed when claim of juvenility is raised before

any court.—(1) Whenever a claim of juvenility is raised before any court or

a court is of the opinion that an accused person was a juvenile on the date

of commission of the offence, the court shall make an inquiry, take such

evidence as may be necessary (but not an affidavit) so as to determine the

age of such person, and shall record a finding whether the person is a

juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it

shall be recognised at any stage, even after final disposal of the case, and

such claim shall be determined in terms of the provisions contained in this

Act and the rules made thereunder, even if the juvenile has ceased to be

so on or before the date of commencement of this Act.

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

the offence under sub-section (1), it shall forward the juvenile to the Board

for passing appropriate orders and the sentence, if any, passed by a court

shall be deemed to have no effect.

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 force, for all purposes

and at all material times when the alleged offence was committed.] ”

The provisions of Act No.33 of 2006 also introduces Section 20 in

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reference to pending cases by providing a clear cut provision that

notwithstanding anything contained in this Act, all proceedings in respect

of a juvenile pending in any Court or 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. A proviso has also been added

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. The explanation provided to the same clearly proceeds to

make a mention that 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 force, for all purposes and

at all material times when the alleged offence was committed.

On the parameters of the provisions that have been quoted above,

the issue in question is being answered.

From the perusal of the provisions that have been quoted above, it

is clearly reflected that under '2000 Act', the inquiry in respect of the claim

of juvenility was required to be conducted by the Competent Authority

having jurisdiction over the proceedings and by means of Act No.33 of

2006 Section 7-A has been introduced in the '2000 Act', wherein for the

first time in reference of claim of juvenility, which has been permitted to be

raised before any Court or where is the Court is of the opinion that an

accused person was juvenile on the date of commission of the offence, the

Court is entitled to make an enquiry, take such evidence as may be

9

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. A proviso has been added to the

same clearly providing that the claim of juvenility may be raised before any

Court and it is to 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, even if the juvenile

has ceased to be so on or before the date of commencement of the Act.

Sub-Section 2 of Section 7-A clearly mentions that if the Court finds a

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

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

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

deemed to have no effect.

Thus this particular provision clearly entitles the Court to answer the

issue of juvenility on being raised before the Court or even otherwise when

Court is of the opinion that an accused person was juvenile on the date of

commission of the offence, the Court shall make an enquiry and proceed

accordingly.

By insertion of section 7-A, the legislative intent was clear inasmuch

as the claim of juvenility could be raised before any Court and at any

stage, and the Court was conferred power to make an enquiry by taking

such evidence as may be necessary to determine the age of such person

with a rider that such claim shall be determined in terms of the provisions

contained in the Act and the Rules made thereunder. To confer power to

the Central Govt. to frame model rules to carry out the purposes of the

Act, a proviso to sub section (1) of section 68 was inserted by Act No.33 of

2006. The amended sub section (1) to section 68 along with its proviso

reads as under:

“68. Power to make rules.--(1) The State Government may, by notification

in the Official Gazette, make rules to carry out the purposes of this Act.

Provided that the Central Government may, frame model rules in respect

of all or any of the matters with respect to which the State Government

may make rules under this section, and where any such model rules have

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been framed in respect of any such matter, they shall apply to the State

until the rules in respect of the matter is made by the State Government

and while making such rules, so far as practicable, they conform to such

model rules.”

Prior to the insertion of the proviso to sub section (1) of section 68

as well as sub section (3) of section 68 by Act No.33 of 2006, there was no

provision enabling the Central Govt. to frame model rules in respect of all

or any of the matters with respect to which the State Govt. could make

rules under the said section. As a result by taking the aid of section 70,

which enabled the Central Govt. to remove difficulties, Model Rules were

framed in the year 2000, the validity of the same came for consideration

before a 5 judges Bench of the Apex Court in the case of Pratap Singh v.

State of Jharkhand: (2005) 3 SCC 551. Hon'ble S. B. Sinha, J., one

of the members of that Bench, in a separate judgment, partly dissenting

from the majority view, discarded the Model Rules by holding that it had

no statutory backing and held that the court thus would be entitled to

apply the ordinary rules of evidence for the purpose of determining the

age of the juvenile taking into consideration the provisions of section 35 of

the Indian Evidence Act. The relevant observations are contained in

paragraphs 107 to 112 of the report, which reads as under:

"107. We, however, do not agree that the Model Rules have been framed in

terms of the provisions of the Act so as to attract the principles that rules

validly framed are to be treated as part of the Act. It is one thing that the

rules validly framed are to be treated as part of the Act as has been held in

Chief Forest Conservator (Wildlife) v. Nisar Khan and National Insurance

Co. Ltd. v. Swaran Singh but the said principle has no application herein

as in terms of the provisions of the said Act, the Central Government does

not have any authority to make any rules. In the absence of any rule-

making power it cannot refer to the omnibus clause of power to remove

difficulty inasmuch as it has not been stated that framing of any model

rule is permissible if a difficulty arises in giving effect to the provision of

the Act. The Central Government is a statutory functionary. Its functions

are circumscribed by Section 70 of the Act only. It has not been authorised

to make any rule. Such rule-making power has been entrusted only to the

State. The Central Government has, thus, no say in the matter nor can it

exercise such power by resorting to its power "to remove difficulties".

Rule-making power is a separate power which has got nothing to do with

the power to remove difficulty. By reason of the power to remove difficulty

or doubt, the Central Government has not been conferred with any

legislative power. The power to remove doubt or difficulty although is a

statutory power but the same is not akin to a legislative power and, thus,

thereby the provisions of the Act cannot be altered. [See Jalan Trading Co.

(P) Ltd. v. Mill Mazdoor Union]

108. The age of the delinquent juvenile, therefore, cannot be determined in

terms of Model Rule 62. Any law mandating the court to take into

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consideration certain documents over others in determining an issue,

must be provided for only by law. Only a validly made law can take away

the power of the court to appreciate evidence for the purpose of

determination of such a question in the light of Section 35 of the Indian

Evidence Act. It cannot be done by the Central Government in exercise of

the executive power (See Union of India v. Naveen Jindal and State of U.P.

v. Johri Mal.)

109. In Birad Mal Singhvi v. Anand Purohit this Court held:

"To render a document admissible under Section 35, three conditions

must be satisfied, firstly, entry that is relied on must be one in a public or

other official book, register or record; secondly, it must be an entry stating

a fact in issue or relevant fact; and thirdly, it must be made by a public

servant in discharge of his official duty, or any other person in

performance of a duty specially enjoined by law. An entry relating to date

of birth made in the school register is relevant and admissible under

Section 35 of the Act but the entry regarding the age of a person in a

school register is of not much evidentiary value to prove the age of the

person in the absence of the material on which the age was recorded."

(emphasis supplied)

110. In Sushil Kumar v. Rakesh Kumar this Court as regards determination

of age of a candidate in terms of Section 36(2) of the Representation of the

People Act, 1951 observed:

"32. The age of a person in an election petition has to be determined not

only on the basis of the materials placed on record but also upon taking

into consideration the circumstances attending thereto. The initial burden

to prove the allegations made in the election petition although was upon

the election petitioner but for proving the facts which were within the

special knowledge of the respondent, the burden was upon him in terms

of Section 106 of the Evidence Act. It is also trite that when both parties

have adduced evidence, the question of the onus of proof becomes

academic [see Union of India v. Sugauli Sugar Works (P) Ltd. and Cox and

Kings (Agents) Ltd. v. Workmen]. Furthermore, an admission on the part of

a party to the lis shall be binding on him and in any event a presumption

must be made that the same is taken to be established."

This Court therein followed, inter alia, Birad Mal Singhvi v. Anand Purohit

and several other decisions.

111. The Court, therefore, must determine the age of the appellant herein

keeping in view our aforementioned findings that the relevant date for

reckoning the age of the juvenile would be the date of occurrence and not

the date on which he was produced before the Board.

112. The upshot of the aforementioned discussions is:

(i) In terms of the 1986 Act, the age of the offender must be reckoned from

the date when the alleged offence was committed.

(ii) The 2000 Act will have a limited application in the cases pending under

the 1986 Act.

(iii) The Model Rules framed by the Central Government having no legal

force cannot be given effect to.

(iv) The court, thus, would be entitled to apply the ordinary rules of

evidence for the purpose of determining the age of the juvenile taking into

consideration the provisions of Section 35 of the Indian Evidence Act."

It appears that the amendment brought by Act No.33 of 2006 was to

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obviate the outcome of the decision of the Apex Court in the case of

Pratap Singh (supra), as has been observed by the Apex Court in the case

of Hari Ram v. State of Rajasthan:(2009) 13 SCC 211 as follows:

Section 7-A makes provision for a claim of juvenility to be raised before

any Court at any stage, even after final disposal of a case and sets out the

procedure which the Court is required to adopt, when such claim of

juvenility is raised. It provides for an inquiry, taking of evidence as may be

necessary (but not affidavit) so as to determine the age of a person and to

record a finding whether the person in question is a juvenile or not. The

aforesaid provisions were, however, confined to Courts, and proved

inadequate as far as the Boards were concerned. Subsequently, in the

Juvenile Justice (Care and Protection of Children) Rules, 2007, which is a

comprehensive guide as to how the provisions of the Juvenile Justice Act,

2000, are to be implemented, Rule 12 was introduced providing the

procedure to be followed by the Courts, the Boards and the Child Welfare

Committees for the purpose of determination of age in every case

concerning a child or juvenile or a juvenile in conflict with law. Since the

aforesaid provisions are interconnected and lay down the procedures for

determination of age, the said Rule is reproduced hereinbelow:

"12. Procedure to be followed in determination of Age.- (1) In every case

concerning a child or a juvenile in conflict with law, the court or the Board

or as the case may be the Committee referred to in rule 19 of these rules

shall determine the age of such juvenile or child or a juvenile in conflict

with law within a period of thirty days from the date of making of the

application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall

decide the juvenility or otherwise of the juvenile or the child or as the case

may be the juvenile in conflict with law, prima facie on the basis of

physical appearance or documents, if available, and send him to the

observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age

determination inquiry shall be conducted by the court or the Board or, as

the case may be, the Committee by seeking evidence by obtaining -

(a)(i) the matriculation or equivalent certificates, if available; and in the

absence whereof;

(ii) the date of birth certificate from the school (other than a play school)

first attended; and in the absence whereof;

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

panchayat;

(b) and only in the absence of either

(i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a

duly constituted Medical Board, which will declare the age of the juvenile

or child.

In case exact assessment of the age cannot be done, the Court or the

Board or, as the case may be, the Committee, for the reasons to be

recorded by them, may, if considered necessary, give benefit to the child

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

one year. and, while passing orders in such case shall, after taking into

consideration such evidence as may be available, or the medical opinion,

as the case may be, record a finding in respect of his age and either of the

evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence

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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

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."

Sub-Rules (4) and (5) of Rule 12 are of special significance in that they

provide that once the age of a juvenile or child in conflict with law is found

to be less than 18 years on the date of offence on the basis of any proof

specified in sub- rule (3) the Court or the Board or as the case may be the

Child Welfare Committee appointed under Chapter IV of the Act, has to

pass a written order stating the age of the juvenile or stating the status of

the juvenile, and no further inquiry is to be conducted by the Court or

Board after examining and obtaining any other documentary proof

referred to in Sub-rule (3) of Rule 12. Rule 12, therefore, indicates the

procedure to be followed to give effect to the provisions of Section 7A

when a claim of juvenility is raised.

One of the problems which has frequently arisen after the enactment of

the Juvenile Justice Act, 2000, is with regard to the application of the

definition of "juvenile" under Section 2(k) and (l) in respect of offences

alleged to have been committed prior to 1st April, 2001 when the Juvenile

Justice Act, 2000 came into force, since under the 1986 Act, the upper age

limit for male children to be considered as juveniles was 16 years. The

question which has been frequently raised is, whether a male person who

was above 16 years on the date of commission of the offence prior to 1st

April, 2001, would be entitled to be considered as a juvenile for the said

offence if he had not completed the age of 18 years on the said date. In

other words, could a person who was not a juvenile within the meaning of

the 1986 Act when the offence was committed, but had not completed 18

years, be governed by the provisions of the Juvenile Justice Act, 2000,

and be declared as a juvenile in relation to the offence alleged to have

been committed by him?

Read with Sections 2(k), 2(l), 7A and Rule 12, Section 20 of the Juvenile

Justice Act, 2000, as amended in 2006, is probably the Section most

relevant in setting at rest the question raised in this appeal, as it deals

with cases which were pending on 1st April, 2001, when the Juvenile

Justice Act, 2000, came into force. The same is, accordingly, reproduced

hereinbelow :

"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

14

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 (1) 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 force, for all purposes and

at all material times when the alleged offence was committed.]"

The Proviso and the Explanation to Section 20 were added by Amendment

Act 33 of 2006, to set at rest any doubts that may have arisen with regard

to the applicability of the Juvenile Justice Act, 2000, to cases pending on

1st April, 2001, where a juvenile, who was below 18 years at the time of

commission of the offence, was involved. The Explanation which was

added in 2006, makes it very clear that in all pending cases, which would

include not only trials but even subsequent proceedings by way of

revision or appeal, the determination of juvenility of a juvenile would be in

terms of Clause (l) of Section 2, even if the juvenile ceased to be a juvenile

on or before 1st April, 2001, when the Juvenile Justice Act, 2000, came into

force, and the provisions of the Act would apply as if the said provision

had been in force for all purposes and for all material times when the

alleged offence was committed. In fact, Section 20 enables the Court to

consider and determine the juvenility of a person even after conviction by

the regular Court and also empowers the Court, while maintaining the

conviction, to set aside the sentence imposed and forward the case to the

Juvenile Justice Board concerned for passing sentence in accordance

with the provisions of the Juvenile Justice Act, 2000.

At this point it may be noted that the decision of the Constitution Bench in

Pratap Singh's case (supra) was rendered at a point of time when the

amendments to Sections 2(l) and 20 and the introduction of Section 7-A

had not yet been effected, nor was Rule 12 of the 2007 Rules available.

Several decisions on the applicability of the 2000 Act to children who were

above 16 but below 18 years on the date of commission of the offence

have been rendered after the Juvenile Justice Act, 2000, came into force

and several others were rendered after the amendments were introduced

in the said Act by Amendment Act 33 of 2006 and the introduction of the

2007 Rules. The decisions rendered by this Court and the High Courts

prior to 1st April, 2001, when the Juvenile Justice Act, 2000, came into

force and thereafter can, therefore, be divided into two groups. The

decision in Pratap Singh's case (supra) and in the case of Munney @

Rahat Jan Khan vs. State of U.P. [(2006) 12 SCC 697] fall into the first

category, whereas the decisions in Jameel vs. State of Maharashtra [(2007)

11 SCC 420], Vimal Chadha vs. Vikas Chaudhary [(2008) 8 SCALE 608],

Babloo Pasi vs. State of Jharkhand [(2008) 13 SCALE 137] and Ranjit

Singh vs. State of Haryana [(2008) 9 SCC 453] fall into the second

category. Although, the Constitution Bench decision in Pratap Singh's

case (supra) and Munney's case (supra) are not really relevant since they

have been rendered prior to 22nd August, 2006, when the Amending Act 33

of 2006 came into force, they assume a modicum of significance since

they have been referred to and relied upon even after the Amending Act

and the 2007 Rules came into force on 22.8.2006 and 26.10.2007,

respectively.

28. Of the decisions rendered after the amendments effected in 2006 to the

15

Juvenile Justice Act, 2000, the first decision of note is that of Jameel's

case (supra) rendered on 16.1.2007 wherein the amendments to the Act

effected by the Amendment Act 33 of 2006, which came into effect on

22.8.2006, were not even noticed. The next decision rendered on 27.5.2008

is in the case of Vimal Chadha's case (supra), wherein, although, the

amendment of the Act and the introduction of the Juvenile Justice Rules,

2007, were brought to the notice of the Court, the same were not

considered and the decision was rendered in the light of the decision

rendered in Pratap Singh's case (supra) and other cases decided prior to

1.4.2001.

The next decision rendered on the same point on 11.9.2008 was the

decision in Ranjit Singh's case (supra) wherein also the amendments to

Section 2(l) and 20 and the introduction of Section 7-A in the Juvenile

Justice Act, 2000, and the introduction of the 2007 Rules had not been

considered and the decision passed sub silentio.

In fact, after the amendment, the Central Govt. made and notified

the Rules, 2007, vide notification dated 26.10.2007, and those Rules came

into effect from the date of the publication of notification in the Gazette of

India, (Extra.), Part II, Section 3(i), dt. 26.10.2007.

The relevant provisions governing the procedure to be followed in

determination of age of a juvenile in conflict with law is contained in Rule

12, which provides for as follows:

"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

16

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 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."

Rule 96 of the Central Rules provides that until the new rules

conforming to these rules are framed by the State Govt. concerned under

Section 68 of the 2000 Act, the Central Rules shall mutatis mutandis apply

in that State.

Rule 97 of the Central Rules provides that all pending cases, which

have not received finality, shall be dealt with and disposed of in terms of

the provisions of the Act and the rules made thereunder. For convenience

Rule 97 of the Central Rules is being extracted herein below:

"97. Pending Cases.--(1) No juvenile in conflict with law or a child shall be

denied the benefits of the Act and the rules made thereunder.

(2) All pending cases which have not received a finality shall be dealt with

and disposed of in terms of the provisions of the Act and the rules made

thereunder.

(3) Any juvenile in conflict with law, or a child shall be given the benefits

under sub-rule (1) of this rule, and it is hereby clarified that such benefits

shall be made available to all those accused who were juvenile or a child

at the time of commission of an offence, even if they cease to be a juvenile

or a child during the pendency of any inquiry or trial.

(4) While computing the period of detention or stay or sentence of a

juvenile in conflict with law or of a child, all such period which the juvenile

or the child has already spent in custody, detention, stay or sentence of

imprisonment shall be counted as a part of the period of stay or detention

or sentence of imprisonment contained in the final order of the court or

17

the Board."

The Apex Court in the case of Ashwani Kumar Saxena vs. State

of M.P. 2012 Law Suit (SC) 607 decided on 13.10.2012, after

considering various judgements as well as the scope of Section 7-A of the

Act, 2000 as also Rule 12 of the Rules, 2007, observed as follows:

"23. We may in the light of the judgments referred to hereinbefore 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 Juvenile Justice Board

and the Committee while dealing with a claim of juvenility.

24. We may, however, point out that none of the abovementioned

judgments referred to earlier had examined the scope, meaning and

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

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

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

"7-A. Procedure to be followed when claim of juvenility is raised before

any court.--Already Quoted above

"12. Procedure to be followed in determination of age.--Already Quoted

above"

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

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

Procedure, but under the JJ Act. The criminal courts, Juvenile Justice

Board, committees, etc. we have noticed, proceed as if they are

conducting a trial, inquiry, enquiry or investigation as per the Code. The

statute requires the court or the Board only to make an "inquiry" and in

what manner that inquiry has to be conducted is provided in the JJ Rules.

Few of the expressions used in Section 7-A 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 7-A

has used the expressions "court shall make an inquiry", "take such

evidence as may be necessary" and "but not an affidavit". The Court or

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

Court or the Board can accept documents, certificates, etc. as evidence,

need not be oral evidence.

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

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

the expression "prima facie" and "on the basis of physical appearance" or

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

evidence by obtaining". These expressions in our view re-emphasise the

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

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

age be determined within thirty days from the date of making the

application; which is also an indication of the manner in which the inquiry

has to be conducted and completed. The word "inquiry" has not been

defined under the JJ Act, but Section 2(y) of the JJ Act says that all words

and expressions used and not defined in the JJ Act but defined in the

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

respectively assigned to them in that Code.

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

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

and their several meanings attributed to those expressions. "Inquiry" as

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

18

"2. (g) ''inquiry' means every inquiry, other than a trial, conducted under

this Code by a Magistrate or court;"

The word "enquiry" is not defined under the Code of Criminal Procedure

which is an act of asking for information and also consideration of some

evidence, may be documentary.

"Investigation" as defined in Section 2(h) CrPC reads as follows:

"2. (h) ''investigation' includes all the proceedings under this Code for the

collection of evidence conducted by a police officer or by any person

(other than a Magistrate) who is authorised by a Magistrate in this behalf;"

The expression "trial" has not been defined in the Code of Criminal

Procedure but must be understood in the light of the expressions

"inquiry" or "investigation" as contained in Sections 2(g) and 2(h) of the

Code of Criminal Procedure.

28. The expression "trial" has been generally understood as the

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

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

very many cases that the court/the Juvenile Justice Board while

determining the claim of juvenility forget that what they are expected to do

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

Procedure, but an inquiry under the JJ Act, following the procedure laid

down under Rule 12 and not following the procedure laid down under the

Code.

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

investigation, inquiry or trial for every offence, whether under the 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 7-A 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 the inquiry.

30. Consequently, the procedure to be followed under the JJ 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 7-A

of the Act. In 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 7-A read with Rule 12.

31. We also remind all courts/Juvenile Justice Boards and the Committees

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

obtaining the certificate, etc. mentioned in Rules 12(3)(a)(i) to (iii). The

courts in such situations act as a parens patriae because they have a kind

of guardianship over minors who from their legal disability stand in need

of protection.

32. "Age determination inquiry" contemplated under Section 7-A of the Act

read with 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 needs to obtain the date of birth

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

19

the absence of matriculation or equivalent certificate or the date of birth

certificate from the school first attended, the court needs to obtain the

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

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

obtaining medical opinion from a duly constituted Medical Board arises

only if the abovementioned 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.(Emphasis Supplied)

After observing as above, the Apex Court deprecated the practice of

the courts in making a roving enquiry with regards to the correctness of

the date of birth entered in matriculation or equivalent certificates or other

documents unless those documents or certificates were fabricated or

manipulated. The relevant observations of the apex court are contained

below:

"Age determination inquiry contemplated under the JJ Act and the 2007

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

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

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

certificate from the school first attended and even the birth certificate

given by a corporation or a municipal authority or a panchayat may not be

correct. But court, Juvenile Justice Board or a committee functioning

under the JJ 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 Juvenile Justice Board or the committee need

to go for medical report for age determination.

We have come across several cases in which the 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 express doubts over certificates produced and

carry on detailed probe which is totally unwarranted." (Emphasis

Supplied)

Apex Court in the case of Abuzar Hossain @ Gautam Hussain

vs. State of West Bengal in Criminal Appeal No.1193 of 2006

decided on 10.10.2012 has held as follows:

“Now, we summarise the position which is as under:

(i) A claim of juvenility may be raised at any stage even after final disposal

of the case. It may be raised for the first time before this Court as well after

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

cannot be a ground for rejection of such claim. The claim of juvenility can

be raised in appeal even if not pressed before the trial court and can be

raised for the first time before this Court though not pressed before the

20

trial court and in appeal court.

(ii) For making a claim with regard to juvenility after conviction, the

claimant must produce some material which may prima facie satisfy the

court that an inquiry into the claim of juvenility is necessary. Initial burden

has to be discharged by the person who claims juvenility.

(iii) As to what materials would prima facie satisfy the court and/or are

sufficient for discharging the initial burden cannot be catalogued nor can

it be laid down as to what weight should be given to a specific piece of

evidence which may be sufficient to raise presumption of juvenility but the

documents referred to in Rule 12(3)(a)(i) to (iii) shall definitely be sufficient

for prima facie satisfaction of the court about the age of the delinquent

necessitating further enquiry under Rule 12. The statement recorded

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

sufficient ordinarily to justify or reject the claim of juvenility. The

credibility and/or acceptability of the documents like the school leaving

certificate or the voters’ list, etc. obtained after conviction would depend

on the facts and circumstances of each case and no hard and fast rule can

be prescribed that they must be prima facie accepted or rejected. In Akbar

Sheikh2 and Pawan8 these documents were not found prima facie credible

while in Jitendra Singh10 the documents viz., school leaving certificate,

marksheet and the medical report were treated sufficient for directing an

inquiry and verification of the appellant’s age. If such documents prima

facie inspire confidence of the court, the court may act upon such

documents for the purposes of Section 7A and order an enquiry for

determination of the age of the delinquent.

(iv) An affidavit of the claimant or any of the parents or a sibling or a

relative in support of the claim of juvenility raised for the first time in

appeal or revision or before this Court during the pendency of the matter

or after disposal of the case shall not be sufficient justifying an enquiry to

determine the age of such person unless the circumstances of the case

are so glaring that satisfy the judicial conscience of the court to order an

enquiry into determination of age of the delinquent.

(v) The court where the plea of juvenility is raised for the first time should

always be guided by the objectives of the 2000 Act and be alive to the

position that the beneficent and salutary provisions contained in 2000 Act

are not defeated by hyper-technical approach and the persons who are

entitled to get benefits of 2000 Act get such benefits. The courts should

not be unnecessarily influenced by any general impression that in schools

the parents/guardians understate the age of their wards by one or two

years for future benefits or that age determination by medical examination

is not very precise. The matter should be considered prima facie on the

touchstone of preponderance of probability.

(vi) Claim of juvenility lacking in credibility or frivolous claim of juvenility

or patently absurd or inherently improbable claim of juvenility must be

rejected by the court at threshold whenever raised.”

The judgment in Ashwani Kumar Saxena's case (supra) has been

consistently followed by the Apex Court in Jodhbir Singh v. State of

Punjab: (2012) 13 SCC 591; Ranjeet Goswami v. State Of

Jharkhand: (2014) 1 SCC 588; and Kulai Ibrahim @ Ibrahim v.

State represented by the Inspector of Police, B-I, Bazar Police Station,

Coimbatore: (2014) 12 SCC 332.

21

The law that emerges from the aforesaid statutory provisions and

decision of the Apex Court is that where there are certificates available, as

contemplated by Rule 12 (3) (a) (i) of the Rules, 2007, the date of birth

entered in such certificate is to be accepted for determining the age of the

juvenile in conflict with law and the other evidences including opinion of

the medical board would not be required unless it is shown that those

documents or certificates are fabricated or manipulated. The age

determination inquiry is to be conducted as per the Rules, 2007 and not in

any other manner provided for.

Rule 96 of the Rules, 2007 provides that until the new rules

conforming to these rules are framed by the State Government concerned

under Section 68 of the Act, 2000, the Rules, 2007 shall mutatis mutandis

apply. Rule 97 of the said Rules provides that all pending cases which have

not received a finality shall be dealt with and disposed of in terms of the

provisions of the Act and the rules made thereunder.

The question that has been referred to above will get its reply from

the aforementioned two provisions, inasmuch as, the provisions of U.P.

Juvenile Justice (Care and Protection of Children) Rules, 2004 (U.P. Rules)

certainly will have to be in line with the provisions as are contained under

Juvenile Justice (Care & Protection of Children) Rules 2007 (Central Rules)

and till the provisions of 'U.P. Rules' are not brought in line with the

'Central Rules' framed by the Central Government, the recourse to

determine juvenility on the basis of the provisions as contained under U.P.

Rules, cannot be subscribed. The U.P. Rules will have to be recast in tune

with the Model Rules framed by the Central Government and commonly

known as 'The Juvenile Justice (Care & Protection of Children) Rules 2007'

as Rule 96 of the Rules, 2007 clearly provides that until the new rules

conforming to these rules are framed by the State Govt. concerned under

Section 68 of the Act, 2000, the Rules, 2007 shall mutatis mutandis apply

in that State, in view of this, as far as provision of U.P. Rules are

concerned, till they are not revised in consonance with the provisions as

22

are contained under Central Rules, the same cannot be made foundation

and basis for determining juvenility and the Courts are duty bound to

answer the question of juvenility strictly on the parameters of the

provisions that are contained under Central Rules and not on any other

parameters as has been provided for.

The procedure that has been provided for determining the question

of juvenility under Central Rules as to how the question of juvenility is to

be determined, the same will have a prevailing effect on U.P. Juvenile

Justice (Care and Protection of Children) Rules, 2004 as the State of Uttar

Pradesh has not framed any rule in tune with the Central Rules referred to

above and Central Rule would apply for the inquiry to be held until Rules in

this regard are framed by the State of Uttar Pradesh, in view of this,

answer to the question posed i.e. “whether the U.P. Juvenile Justice (Care

& Protection of Children ) Rules 2004 need be recast consequent upon

addition of section 7-A of the Juvenile Justice (Care & Protection of

Children) Act, 2000 (as amended by Act No. 33 of 2006)” is 'Yes' as the

provisions of the U.P. Juvenile Justice (Care & Protection of Children)

Rules 2004 on its own after introduction of Section 7-A and keeping in

view the provisions of the Central Rules until and unless it is not revamped

and not at all brought in consonance with the provisions as are contained

under the Juvenile Justice (Care & Protection of Children) Rules 2007, the

same cannot be subscribed and in view of this, same needs to be

modified.

The answer to the second question i.e. “And in case it is found that

they need not be recast whether the U.P. Juvenile Justice (Care &

Protection of Children )Rules 2004 framed by State Government or The

Juvenile Justice (Care & Protection of Children) Rules 2007 framed by the

Central Government shall apply to the matter, in Uttar Pradesh” is that it

needs to be modified and till it is not revamped, on the issue of juvenility

being raised, the answer to the said question will have to be found on the

parameters of the provisions as are contained under The Juvenile Justice

23

(Care & Protection of Children) Rules 2007 and the same shall apply to the

matter in the State of Uttar Pradesh also.

The reference is accordingly answered. The Revision shall now be

placed before the appropriate Bench according to roster for disposal in

light of this judgement.

(Bharat Bhushan, J.) (Ramesh Sinha, J.) (V.K. Shukla, J.)

Order Date :-21.09.2016

A. Pandey