2025 INSC 43 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 4229 OF 2024

(Arising out of SLP (Crl.) No.(s) 2214 of 2022)

OM PRAKASH @ ISRAEL @ RAJU

@ RAJU DAS …APPELLANT(S)

VERSUS

UNION OF INDIA & ANR. … RESPONDENT(S)

J U D G M E N T

M. M. Sundresh, J.

1. Heard the Learned Senior Counsel Dr. S. Muralidhar for the

Appellant, and Learned Additional Solicitor General Mr. K.M.

Nataraj and Learned Counsel Ms. Vanshaja Shukla for the

Respondents. We have also carefully perused the written arguments

along with the documents, filed by both the sides in respect of their

respective contentions.

2. We are dealing with a case where grave injustice has been

perpetrated, on account of the consistent failure on part of the judicial

machinery to recognise and act upon the constitutional mandate vis-

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a-vis the plea of juvenility. Lord Atkin’s words of wisdom in United

Australia Limited v. Barclay’s Bank Ltd., [1941] A.C. 1 at p.29

become relevant in the aforementioned context:

“…When these ghosts of the past stand in the path of justice

clanking their medieval chains the proper course for the judge is

to pass through them undeterred.”

(emphasis supplied)

3. We are further reminded of the words of V.R. Krishna Iyer J., on the

laudable ideals of truth and justice in Jasraj Inder Singh v. Hemraj

Multanchand, (1977) 2 SCC 155 :-

“8. ...Truth, like song, is whole and half-truth can be noise;

Justice is truth, is beauty and the strategy of healing injustice is

discovery of the whole truth and harmonising human relations.

Law's finest hour is not in meditating on abstractions but in

being the delivery agent of full fairness. This divagation is

justified by the need to remind ourselves that the grammar of

justice according to law is not little litigative solution….”

(emphasis supplied)

TRUTH AND THE COURT

4. Justice is nothing but a manifestation of the truth. It is truth which

transcends every other action. The primary duty of a Court is to make a

single-minded endeavour to unearth the truth hidden beneath the facts.

Thus, the Court is a search engine of truth, with procedural and

substantive laws as its tools.

5. When procedural law stands in the way of the truth, the Court must find

a way to circumvent it. Similarly, when substantive law, as it appears,

does not facilitate the emergence of the truth, it is the paramount duty

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of the Court to interpret the law in light of its teleos. Such an exercise

is warranted in a higher degree, particularly while considering a social

welfare legislation.

6. In its journey, the Court must discern the truth, primarily from the

material available on record in the form of pleadings, and arguments

duly supported by documents. It must be kept in mind that the entire

judicial system is meant for the discovery of the truth, it being the soul

of a decision. For doing so, a Presiding Officer is expected to play an

active role, rather than a passive one.

7. We shall now place on record the views expressed and judgments

rendered on the concept of truth. Justice V.R. Krishna Iyer, at the 18th

Annual Conference of the American Judges Association at Seattle,

Washington State., (1979) 1 SCC J-7, stated thus-

“Our profession is totally committed to Justice—individual,

social and spiritual. Truth, holistic truth, is the basis of Justice

and thus the great question of history, What is Justice, is also the

perennial interrogation, What is Truth? Once we awaken to this

profound core, our attitude to pathological crime and

therapeutic punishment, to inner harmony and societal peace,

will be transformed into a high pursuit of truth beyond “the

madding crowd's ignoble strife.”…

xxx xxx xxx

…The progressive manifestation of the divinity in man is the

recognition of the dignity and worth of the human person and this

curative process is the healing hope of decriminalization—not stone

walls nor iron bars nor other subtle barbarities. This know-how of

humanization alone can dissolve the dilemma.”

(emphasis supplied)

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Mohan Singh v. State of M.P., (1999) 2 SCC 428

“11. …Efforts should be made to find the truth, this is the very

object for which courts are created. To search it out, the courts

have been removing the chaff from the grain. It has to disperse

the suspicious cloud and dust out the smear of dust as all these

things clog the very truth. So long as chaff, cloud and dust

remain, the criminals are clothed with this protective layer to

receive the benefit of doubt. So it is a solemn duty of the courts,

not to merely conclude and leave the case the moment suspicions

are created. It is the onerous duty of the court, within permissible

limit, to find out the truth.…”

(emphasis supplied)

Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya

Nandhavana Paripalanai Sangam, (2012) 6 SCC 430

“Entire journey of a Judge is to discern the truth

24. The entire journey of a Judge is to discern the truth from the

pleadings, documents and arguments of the parties. Truth is the

basis of the justice delivery system….”

(emphasis supplied)

Maria Margarida Sequeria Fernandes v. Erasmo Jack De

Sequeira, (2012) 5 SCC 370

“33. The truth should be the guiding star in the entire judicial

process. Truth alone has to be the foundation of justice. The

entire judicial system has been created only to discern and find

out the real truth. Judges at all levels have to seriously engage

themselves in the journey of discovering the truth. That is their

mandate, obligation and bounden duty. Justice system will

acquire credibility only when people will be convinced that

justice is based on the foundation of the truth.

xxx xxx xxx

44. Malimath Committee on Judicial Reforms heavily relied on

the fact that in discovering truth, the Judges of all courts need to play

an active role. The Committee observed thus:

‘2.2. … In the adversarial system truth is supposed to emerge

from the respective versions of the facts presented by the

prosecution and the defence before a neutral Judge. The Judge

acts like an umpire to see whether the prosecution has been able

to prove the case beyond reasonable doubt….

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xxx xxx xxx

…The Judge in his anxiety to maintain his position of neutrality

never takes any initiative to discover truth. He does not correct

the aberrations in the investigation or in the matter of production

of evidence before court.

xxx xxx xxx

2.15. The adversarial system lacks dynamism because it has no lofty

ideal to inspire. It has not been entrusted with a positive duty to

discover truth as in the inquisitorial system. When the investigation

is perfunctory or ineffective, Judges seldom take any initiative to

remedy the situation. During the trial, the Judge does not bother

if relevant evidence is not produced and plays a passive role as if

he has no duty to search for truth….

xxx xxx xxx

2.16.9. Truth being the cherished ideal and ethos of India, pursuit

of truth should be the guiding star of the criminal justice system.

For justice to be done truth must prevail. It is truth that must

protect the innocent and it is truth that must be the basis to

punish the guilty. Truth is the very soul of justice. Therefore,

truth should become the ideal to inspire the courts to pursue.

This can be achieved by statutorily mandating the courts to

become active seekers of truth. It is of seminal importance to

inject vitality into our system if we have to regain the lost

confidence of the people. Concern for and duty to seek truth

should not become the limited concern of the courts. It should

become the paramount duty of everyone to assist the court in its

quest for truth.”

(emphasis supplied)

Sugandhi v. P. Rajkumar, (2020) 10 SCC 706

“9. It is often said that procedure is the handmaid of justice.

Procedural and technical hurdles shall not be allowed to come in

the way of the court while doing substantial justice. If the

procedural violation does not seriously cause prejudice to the

adversary party, courts must lean towards doing substantial

justice rather than relying upon procedural and technical

violation. We should not forget the fact that litigation is nothing

but a journey towards truth which is the foundation of justice

and the court is required to take appropriate steps to thrash out

the underlying truth in every dispute. Therefore, the court should

take a lenient view when an application is made for production of the

documents under sub-rule (3).”

(emphasis supplied)

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Munna Pandey v. State of Bihar, 2023 SCC OnLine SC 1103

“68. The role of a judge in dispensation of justice after ascertaining

the true facts no doubt is very difficult one. In the pious process of

unravelling the truth so as to achieve the ultimate goal of

dispensing justice between the parties the judge cannot keep

himself unconcerned and oblivious to the various happenings

taking place during the progress of trial of any case. No doubt he

has to remain very vigilant, cautious, fair and impartial, and not

to give even a slightest of impression that he is biased or

prejudiced either due to his own personal convictions or views in

favour of one or the other party. This, however, would not mean

that the Judge will simply shut his own eyes and be a mute

spectator, acting like a robot or a recording machine to just

deliver what stands feeded by the parties.

xxx xxx xxx

70. This Court has condemned the passive role played by the

Judges and emphasized the importance and legal duty of a Judge

to take an active role in the proceedings in order to find the truth

to administer justice and to prevent the truth from becoming a

casualty….”

(emphasis supplied)

JUVENILE JUSTICE

8. A child is a product of the present, in need of being moulded, to thrive

in the future. Therefore, deviant behaviour of a child in conflict with

law should be a concern of the society as a whole. One must not lose

sight of the fact that the child is not responsible for an act of crime, but

is rather victimized by it. Such a child is nothing but an inheritor of

crime, a legacy which it does not wish to imbibe. The behaviour of a

child can be attributed, possibly to two counts, namely, the environment

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that the child grows in, and genetics. On the second count, there is

abundant research and literature available. However, we do not wish to

venture much into this, particularly in light of the innumerable

permutations and combinations that could arise out of the interaction

between these two counts.

9. On the first count, various factors such as socio-economic, political and

cultural background, and life experience, amongst others, become

relevant. Thus, remedial measures may be employed for the benefit of

the child. Since the child does not choose the environment in which it

grows, deviant behaviour which is a result of exposure to a given

environment is evidence of rampant inequality. Therefore, a child who

lives in such a discriminatory environment, requires equitable treatment

on the touchstone of Article 14 of the Constitution of India, 1950

(hereinafter referred to as “the Constitution”). Article 15(3) read with

Article 39 (e) and (f), Article 45 and Article 47 of the Constitution, in

the form of the Fundamental Rights and the Directive Principles of

State Policy, emphasise on the need for special care for children. The

relevant provisions in the Constitution which form the foundation of

juvenile justice are as under:

Article 15 of the Constitution

“15. Prohibition of discrimination on grounds of religion, race,

caste, sex or place of birth.—

xxx xxx xxx

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(3) Nothing in this article shall prevent the State from making

any special provision for women and children.”

(emphasis supplied)

Article 39 of the Constitution

“39. Certain principles of policy to be followed by the State.—

The State shall, in particular, direct its policy towards securing—

(a) that the citizens, men and women equally, have the right to an

adequate means to livelihood;

(b) that the ownership and control of the material resources of the

community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the

concentration of wealth and means of production to the common

detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and

the tender age of children are not abused and that citizens are

not forced by economic necessity to enter avocations unsuited to

their age or strength;

(f) that children are given opportunities and facilities to develop

in a healthy manner and in conditions of freedom and dignity

and that childhood and youth are protected against exploitation

and against moral and material abandonment.”

(emphasis supplied)

Article 45 of the Constitution

“45. Provision for early childhood care and education to children

below the age of six years.—The State shall endeavour to provide

early childhood care and education for all children until they

complete the age of six years.”

(emphasis supplied)

10. In view of the said constitutional mandate, the Court is expected to play

the role of parens patriae by treating a child not as a delinquent, but as

a victim, viewed through the lens of reformation, rehabilitation and

reintegration into the society.

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11. Thus, a Juvenile Court is a species of a parent. A delinquent, who

appears before the Court, is to be protected and re-educated, rather than

be judged and punished. It is for this purpose, that the Court will have

to press into service the benevolent provisions for rehabilitation

introduced by the Legislature. A Juvenile Court assumes the role of an

institution rendering psychological services. It must forget that it is

acting as a Court, and must don the robes of a correction home for a

deviant child. In Aruna Ramachandra Shanbaug v. Union of India,

(2011) 4 SCC 454, this Court recognised the need for Courts to assume

the role of parens patriae and stated thus:

“86. …As stated by Balcombe, J. in J. (A Minor) (Wardship: Medical

Treatment), In re [(1990) 3 All ER 930 (CA)] , the Court as

representative of the Sovereign as parens patriae will adopt the

same standard which a reasonable and responsible parent would

do. The parens patriae (father of the country) jurisdiction was the

jurisdiction of the Crown, which, as stated in Airedale [1993 AC

789 : (1993) 2 WLR 316 : (1993) 1 All ER 821 (CA and HL)] , could

be traced to the 13th century. This principle laid down that as the

Sovereign it was the duty of the King to protect the person and

property of those who were unable to protect themselves. The

Court, as a wing of the State, has inherited the parens patriae

jurisdiction which formerly belonged to the King.

xxx xxx xxx

Doctrine of parens patriae

126. The doctrine of parens patriae (father of the country) had

originated in British law as early as in the 13th century. It implies

that the King is the father of the country and is under obligation to

look after the interest of those who are unable to look after

themselves. The idea behind parens patriae is that if a citizen is in

need of someone who can act as a parent who can make decisions

and take some other action, sometimes the State is best qualified

to take on this role.

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127. In the Constitution Bench decision of this Court in Charan Lal

Sahu v. Union of India [(1990) 1 SCC 613] the doctrine has been

explained in some detail as follows: (SCC p. 648, para 35)

“35. … In the ‘Words and Phrases’ Permanent Edn., Vol. 33 at p.

99, it is stated that parens patriae is the inherent power and

authority of a legislature to provide protection to the person

and property of persons non sui juris, such as minor, insane,

and incompetent persons, but the words parens patriae

meaning thereby ‘the father of the country’, were applied

originally to the King and are used to designate the State

referring to its sovereign power of guardianship over persons

under disability. Parens patriae jurisdiction, it has been

explained, is the right of the sovereign and imposes a duty on

[the] sovereign, in public interest, to protect persons under

disability who have no rightful protector. The connotation of

the term parens patriae differs from country to country, for

instance, in England it is the King, in America it is the people, etc.

The Government is within its duty to protect and to control

persons under disability.”

(emphasis in original)

The duty of the King in feudal times to act as parens patriae (father

of the country) has been taken over in modern times by the State.

128. In Heller v. DOE [125 L Ed 2d 257 : 509 US 312 (1992)] Mr

Kennedy, J. speaking for the US Supreme Court observed: (US p.

332)

“ ‘… the State has a legitimate interest under its parens patriae

powers in providing care to its citizens who are unable … to

care for themselves’ [Ed.: As observed in Addington v. Texas,

441 US 418 at p. 426.] ”.

129. In State of Kerala v. N.M. Thomas [(1976) 2 SCC 310 : 1976

SCC (L&S) 227 : (1976) 1 SCR 906] , SCR at p. 951 Mr Mathew, J.

observed: (SCC p. 343, para 64)

“64. … the Court also is ‘State’ within the meaning of Article 12

(of the Constitution)….”

130. In our opinion, in the case of an incompetent person who is

unable to take a decision whether to withdraw life support or not,

it is the Court alone, as parens patriae, which ultimately must

take this decision, though, no doubt, the views of the near

relatives, next friend and doctors must be given due weight.”

(emphasis supplied)

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JUVENILE JUSTICE LEGISLATION S IN INDIA:

THE JUVENILE JUSTICE ACT, 1986 (Act No. 53 of 1986)

12. We now touch upon the first Central enactment introduced way back in

the year 1986, in the form of the Juvenile Justice Act, 1986 (Act No.

53 of 1986) (hereinafter referred to as the “1986 Act”). This was the

maiden attempt by the Central Legislature for a comprehensive and

uniform set of national rules for juveniles, recognising the need to treat

them separately from adults. The term ‘Juvenile’ has been defined

under Section 2(h) of the 1986 Act as under:

Section 2(h)

“2. Definitions.—In this Act, unless the context otherwise requires-

xxx xxx xxx

(h) “juvenile” means a boy who has not attained the age of sixteen

years or a girl who has not attained the age of eighteen years”

13. Though the 1986 Act did not specifically take into consideration the

mandate of the Constitution, the Legislature’s concern for juveniles is

evident from its provisions, including Section 32 of the 1986 Act, which

made it obligatory on the part of the Competent Authority to make due

inquiry as to the age of the person brought before it.

Section 32

“32. Presumption and determination of age.—(1) Where it

appears to a competent authority that a person brought before it under

any of the provisions of this Act (otherwise than for the purpose of

giving evidence) is a juvenile, the competent authority shall make

due inquiry as to the age of that person and for that purpose shall

take such evidence as may be necessary and shall record a finding

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whether the person is a juvenile or not, stating his age as nearly

as may be.

(2) No order of a competent authority shall be deemed to have

become invalid merely by any subsequent proof that the person in

respect of whom the order has been made is not a juvenile, and the

age recorded by the competent authority to be the age of the

person so brought before it shall, for the purposes of this Act, be

deemed to be the true age of that person.”

(emphasis supplied)

JUVENILE JUSTICE (CARE AND PROTECTION OF

CHILDREN) ACT, 2000 (Act No. 56 of 2000)

14. A much more comprehensive and modern exercise undertaken by the

Central Legislature, taking due note of Article 15(3), clauses (e) and (f)

of Article 39, Article 45 and Article 47 of the Constitution, mandating

stakeholders to ensure that all the needs of children are fulfilled by

elevating them to the status of basic human rights, is the enactment of

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

(Act No. 56 of 2000) (hereinafter referred to as the “2000 Act”). While

doing so, certain ideas were borrowed from international conventions

and covenants including the United Nations Standard Minimum

Rules for the Administration of Juvenile Justice, 1985 (hereinafter

referred to as “the Beijing Rules”), and the United Nations Rules for

the Protection of Juveniles Deprived of their Liberty, 1990, amongst

other instruments. Section 2(k) and 2(l) of the 2000 Act as amended by

Act No. 33 of 2006 defines a juvenile as under:

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Section 2 (k) and (l)

“2. Definitions- In this Act, unless the context otherwise requires-

xxx xxx xxx

(k) "juvenile" or "child" means a person who has not completed

eighteenth year of age;

(l) “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 commission of such offence.”

(emphasis supplied)

The differential age qualification for boys and girls, in order to be

treated as juveniles, as was prevalent under the 1986 Act, was rightly

done away with in the 2000 Act.

15. The 2000 Act consciously made itself applicable to all pending cases,

both procedurally and substantively, which has in turn given it an

element of retrospectivity. One clear omission in the 2000 Act is the

absence of a specific duty upon the Investigating Agency qua a juvenile

during investigation, which was highlighted under the Beijing Rules.

Rule 6 of the Beijing Rules

“6 – Scope of discretion

6.1 In view of the varying special needs of juveniles as well as the

variety of measures available, appropriate scope for discretion shall

be allowed at all stages of proceedings and at the different levels of

juvenile justice administration, including investigation, prosecution,

adjudication and the follow-up of dispositions.”

16. Section 7A, along with the Explanation to Section 20 of the 2000 Act,

were introduced into the statute by an amendment vide Act No. 33 of

2006, to overcome the ratio of the judgment rendered by the

Constitution Bench of this Court in Pratap Singh vs. State of

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Jharkhand, (2005) 3 SCC 551, wherein it was declared that the benefit

of juvenility cannot be extended to a person who had completed 18

years of age as on 01.04.2001 – i.e. the date of enforcement of the 2000

Act.

Section 7A

“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 order, and the sentence,

if any, passed by a court shall be deemed to have no effect.”

(emphasis supplied)

Section 20

“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.

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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.”

(emphasis supplied)

17. While Section 7A of the 2000 Act deals with the procedure to be

followed when a claim of juvenility is raised before any Court, Section

20 of the 2000 Act is a special provision in respect of pending cases.

Under both these provisions, it has been made abundantly clear that the

2000 Act and the relevant rules would also be applicable to a juvenile

who ceased to be so on or before the commencement of the 2000 Act.

Thus, a retrospective application has been facilitated under the 2000

Act.

JUVENILE JUSTICE (CARE AND PROTECTION OF

CHILDREN) ACT, 2015 (Act No. 2 of 2016)

18. The Juvenile Justice (Care and Protection of Children) Act, 2015

(Act No. 2 of 2016) (hereinafter referred to as the “2015 Act”) is an

improved version of the earlier legislations. The Hague Convention

on Protection of Children and Cooperation in respect of Inter-

country Adoption, 1993, has also been factored into. The 2015 Act

undertook the exercise of classifying offences into different categories.

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It defines the word ‘Court’ under Section 2(23), as one having original

jurisdiction. This definition is only illustrative in nature, in tune with

the importance of the enactment.

Section 2

“2. Definitions- In this Act, unless the context otherwise requires:

xxx xxx xxx

(23) “court” means a civil court, which has jurisdiction in matters

of adoption and guardianship and may include the District Court,

Family Court and City Civil Courts;”

19. Thus, any Court which is competent to decide the issue of juvenility

would come within the purview of the definition clause, which includes

both the appellate and the revisional forums as well as the

Constitutional Courts. In other words, every Court of competence shall

assume the role of a Juvenile Court. We say so as, giving effect to the

provisions of the 2015 Act is imperative in view of the constitutional

mandate.

Section 5

“5. Placement of person, who cease to be a child during process

of inquiry-Where an inquiry has been initiated in respect of any child

under this Act, and during the course of such inquiry, the child

completes the age of eighteen years, then, notwithstanding anything

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

the inquiry may be continued by the Board and orders may be passed

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

child.”

Section 6

“6. Placement of persons, who committed an offence, when

person was below the age of eighteen years-

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(1) Any person, who has completed eighteen years of age, and is

apprehended for committing an offence when he was below the age

of eighteen years, then, such person shall, subject to the provisions

of this section, be treated as a child during the process of inquiry.

(2) The person referred to in sub-section (1), if not released on bail

by the Board shall be placed in a place of safety during the process

of inquiry.

(3) The person referred to in sub-section (1) shall be treated as per

the procedure specified under the provisions of this Act.”

Sections 5 and 6 of the 2015 Act reiterate the principle that even a

juvenile who has attained majority during the course of inquiry should

be treated as a juvenile.

20. Section 9 of the 2015 Act is the very substance of the entire enactment

and sub section (2) is pari materia to Section 7A of the 2000 Act.

Section 9

“9. Procedure to be followed by a Magistrate who has not been

empowered under this Act-

(1). When a Magistrate, not empowered to exercise the powers of the

Board under this Act is of the opinion that the person alleged to have

committed the offence and brought before him is a child, he shall,

without any delay, record such opinion and forward the child

immediately along with the record of such proceedings to the Board

having jurisdiction.

(2) In case a person alleged to have committed an offence claims

before a court other than a Board, that the person is a child or

was a child on the date of commission of the offence, or if the

court itself is of the opinion that the person was a child on the

date of commission of the offence, the said court shall make an

inquiry, take such evidence as may be necessary (but not an

affidavit) to determine the age of such person, and shall record a

finding on the matter, stating the age of the person as nearly as

may be:

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

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

case, and such a claim shall be determined in accordance with

the provisions contained in this Act and the rules made

thereunder even if the person has ceased to be a child on or

before the date of commencement of this Act.

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(3) If the court finds that a person has committed an offence and was

a child on the date of commission of such offence, it shall forward

the child to the Board for passing appropriate orders and the sentence,

if any, passed by the court shall be deemed to have no effect.

(4) In case a person under this section is required to be kept in

protective custody, while the person’s claim of being a child is being

inquired into, such person may be placed, in the intervening period

in a place of safety.”

(emphasis supplied)

Under sub-section (2), it is the fundamental duty of the Court to make

an inquiry, and take such evidence as may be necessary for the purpose

of determining the age of the person brought before it. The proviso to

sub-section (2) is a rather interesting one. In fact, this proviso throws

some light on the main provision, giving an extended leverage to the

plea of juvenility. Thus, the plea of juvenility can be raised before any

Court, meaning thereby that there is no question of finality in this regard

until and unless an application filed, invoking this provision, is

determined in accordance with the 2015 Act and the relevant rules.

When such a plea is raised, it shall be recognised and cannot be brushed

aside in a casual or whimsical manner. A due determination must be

made by judiciously considering the material available on record. The

Court is expected to travel an extra mile to satisfy its conscience as to

whether the case on hand would attract the provisions of the 2015 Act

and, for the aforesaid purpose, the process enumerated thereunder will

have to be necessarily followed. The proviso further clarifies that the

2015 Act and the relevant rules are applicable even if a person who has

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been accused of an offence, has ceased to be a child on or before the

date of the commencement of the 2015 Act.

PLEA OF JUVENILITY VIS-A-VIS ‘FINAL DISPOSAL’

21. We place emphasis on the words “even after the final disposal of the

case” in Section 9(2) of the 2015 Act. As stated, this provision being

the heart and soul of the entire Act, must be given its fullest meaning

and interpretation. If the offence is committed by a child, it cannot be

treated otherwise than as provided under the 2015 Act. After finding

out the truth, necessary consequences must follow. In a country like

ours, where society is fragmented due to various reasons including, but

not limited to illiteracy and poverty, the role which is assigned to the

Court assumes great significance. Sufficient opportunities must be

given to the child in conflict with law to get the benefit of the 2015 Act.

22. Merely because a casual adjudication has taken place, it does not mean

that a plea of juvenility cannot be raised subsequently. This is for the

simple reason that the plea of juvenility has not attained finality. So

long as the right of a party subsists, one can never say that finality has

been attained. In a case where a plea has been raised, but not

adjudicated upon, the decision rendered thereunder would not amount

to attaining finality. Likewise, when such a plea is not treated as one

under Section 9(2) of the 2015 Act in compliance with the procedural

20

mandate specified thereunder, an order rejecting such a plea would not

be termed as a final one. To put it differently, even assuming a plea of

juvenility was raised but not considered appropriately at the time of

disposal of a Special Leave Petition/Statutory Criminal Appeal, a

Review Petition, or a Curative Petition thereafter, it would not bar a

competent Court from deciding the said issue by following due

procedure. We make it clear that if an adjudication is based on due

determination, then there may not be any room for another round of

litigation. But, in a case where the plea was not treated as an application

under Section 9(2) of the 2015 Act and, the procedure mandated

thereunder was not followed, the principle as aforesaid would certainly

apply as the right of raising the plea of juvenility has not ceased and,

therefore, subsists.

23. Since the need for taking care of a juvenile in conflict with law is

mandated by the Constitution, the role of the constitutional Courts is

significant. Even after the dismissal of a Special Leave

Petition/Statutory Criminal Appeal followed by incidental proceedings

before this Court, where the plea of juvenility was not consciously

considered, there would be no bar on the constitutional Courts to

consciously take a deeper look. Doing so is not an exercise of the

powers conferred under Articles 32, 136 or 226 of the Constitution, but

an act in fulfilment of a mandated duty enjoined upon the Courts, to

21

give effect to the laudable objective of a social welfare legislation. We

shall now place on record the views expressed and judgments rendered

on the aspect of finality, and why a different view can be taken by this

Court, notwithstanding its earlier decision, in exercise of the powers

conferred under the Constitution:

Jethanand and Sons v. State of Uttar Pradesh, 1961 SCC OnLine

SC 193 : (1961) 3 SCR 754 : AIR 1961 SC 794

“7. In our view, the order remanding the cases under Section 151 of

the Civil Procedure Code is not a judgment, decree or final order

within the meaning of Article 133 of the Constitution. By its order,

the High Court did not decide any question relating to the rights of

the parties to the dispute. The High Court merely remanded the cases

for retrial holding that there was no proper trial of the petitions filed

by the appellants for setting aside the awards. Such an order

remanding the cases for retrial is not a final order within the meaning

of Article 133(1)(c). An order is final if it amounts to a final

decision relating to the rights of the parties in dispute in the civil

proceeding. If after the order, the civil proceeding still remains

to be tried and the rights in dispute between the parties have to

be determined, the order is not a final order within the meaning

of Article 133….”

(emphasis supplied)

Mohan Lal Magan Lal Thacker v. State of Gujarat, 1967 SCC

OnLine SC 137 : (1968) 2 SCR 685 : AIR 1968 SC 733

“4. The question as to whether a judgment or an order is final or

not has been the subject-matter of a number of decisions; yet no

single general test for finality has so far been laid down. The

reason probably is that a judgment or order may be final for one

purpose and interlocutory for another or final as to part and

interlocutory as to part. The meaning of the two words “final” and

“interlocutory” has, therefore, to be considered separately in relation

to the particular purpose for which it is required. However, generally

speaking, a judgment or order which determines the principal

matter in question is termed final. It may be final although it

directs enquiries or is made on an interlocutory application or

reserves liberty to apply [Halsbury's Laws of England (3rd Edn.)

Vol. 22, 742-43]. In some of the English decisions where this

22

question arose, one or the other of the following four tests was

applied.

1. Was the order made upon an application such that a decision

in favour of either party would determine the main dispute?

2. Was it made upon an application upon which the main dispute

could have been decided?

3. Does the order as made determine the dispute?

4. If the order in question is reversed, would the action have to

go on?”

(emphasis supplied)

Lily Thomas v. Union of India, (2000) 6 SCC 224

“56. It follows, therefore, that the power of review can be exercised

for correction of a mistake but not to substitute a view. Such powers

can be exercised within the limits of the statute dealing with the

exercise of power. The review cannot be treated like an appeal in

disguise. The mere possibility of two views on the subject is not a

ground for review. Once a review petition is dismissed no further

petition of review can be entertained. The rule of law of following

the practice of the binding nature of the larger Benches and not taking

different views by the Benches of coordinated jurisdiction of equal

strength has to be followed and practised. However, this Court in

exercise of its powers under Article 136 or Article 32 of the

Constitution and upon satisfaction that the earlier judgments

have resulted in deprivation of fundamental rights of a citizen or

rights created under any other statute, can take a different view

notwithstanding the earlier judgment.”

(emphasis supplied)

HIERARCHY OF DOCUMENTS

24. Rule 12 of the Juvenile Justice (Care and Protection of Children)

Rules, 2007 (hereinafter referred to as the “2007 Rules”) must be

understood and appreciated in tune with the principal Act.

Rule 12 of the 2007 Rules

“12. Procedure to be followed in determination of age.

xxx xxx xxx

23

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

the age determination inquiry shall be conducted by the court or the

Board or, as the case may be, the Committee by seeking evidence by

obtaining-

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

in the absence whereof;

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

school) first attended; and in the absence whereof;

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

authority or a panchayat;

(b)and only in the absence of either (i), (ii) or (iii) of clause (a)

above, the medical opinion will be sought from a duly constituted

Medical Board, which will declare the age of the juvenile or child.

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

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

to be recorded by them, may, if considered necessary, give benefit

to the child or juvenile by considering his/her age on lower side

within the margin of one year.

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

consideration such evidence as may be available, or the medical

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

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

or in the absence whereof, clause (b) shall be the conclusive proof of

the age as regards such child or the juvenile in conflict with law.”

While there is no difficulty in the application of the principal Act

inclusive of the procedural part, even for a juvenile in conflict with law

who has attained majority on or after 01.04.2001, Rule 12 of the 2007

Rules must be applied retrospectively even to those cases, especially

where no exercise was undertaken under any of the State Rules or the

erstwhile Acts, on earlier occasions.

25. Sub-rule (3) of Rule 12 is nothing but a rule of evidence. It merely

provides a hierarchy of documents in the order of priority, to be taken

note of and considered while determining the age of a juvenile in

conflict with law, in an ongoing inquiry. Sub-rule (3), apart from

making a reference to specified documents, debars resorting to the

24

subsequently mentioned document, except in a case where the earlier

document(s) is/are not available. Therefore, where a matriculation

certificate is very much available, a date of birth certificate from the

school or a birth certificate given by a local authority shall never be

looked into. Only if none of the aforementioned three documents is

available, can one go for a medical opinion. While interpreting this

Rule, we make it clear that it should not be misunderstood that even in

those cases where due inquiry was undertaken under the erstwhile

enactments and the relevant rules, one can seek a fresh inquiry under

Rule 12 of the 2007 Rules.

26. Section 94(2) of the 2015 Act is a reiteration of Rule 12 of the 2007

Rules, and both should be read in consonance with each other.

Section 94 of the 2015 Act

“94. Presumption and Determination of age

xxx xxx xxx

(2) In case, the Committee or the Board has reasonable grounds for

doubt regarding whether the person brought before it is a child or not,

the Committee or the Board, as the case may be, shall undertake the

process of age determination, by seeking evidence by obtaining —

(i) the date of birth certificate from the school, or the matriculation

or equivalent certificate from the concerned examination Board,

if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal

authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be

determined by an ossification test or any other latest medical age

determination test conducted on the orders of the Committee or

the Board:

Provided such age determination test conducted on the order of the

Committee or the Board shall be completed within fifteen days from

the date of such order.”

25

JUVENILITY AS AN ADMITTED FACT

27. Admission is a rule of evidence. It is a relevant fact. It becomes relevant

qua a fact in issue. When an admission is clear, unambiguous,

continuous and unequivocal, it becomes the best form of evidence, and

transforms itself into a fact in issue. When a party makes an admission,

either by way of an oral statement or by acknowledging a document

authored by them, the Court must proceed on that basis. The resultant

relief, which is axiomatic, cannot be denied on the anvil of procedural

law. Any contra view would result in grave injustice. On an issue where

there is no dispute, denying a rightful relief would be an affront to fair

play and justice. Here, we may add a word of caution. The Court cannot

construe a statement as an admission and proceed on that basis. There

is a subtle difference between an unequivocal admission as against a

statement which could be construed to be so. It must be seen

contextually. While the former can be the basis for a relief, the latter is

one meant for adjudication vis-a-vis the facts of the case.

ACTUS CURIAE NEMINEM GRAVABIT

28. No one shall be prejudiced by an act of the Court. A mistake committed

by the Court cannot stand in the way of one’s rightful benefit. It is not

the party which commits a mistake, but rather the Court itself. Hence,

26

such a mistake cannot act as a barrier for the party to get its due relief.

However, we make it clear that the mistake must be so apparent that it

does not brook any adjudication on the foundational facts.

A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602

“82. Lord Cairns in Rodger v. Comptoir D'escompte De Paris

[(1869-71) LR 3 PC 465, 475 : 17 ER 120] observed thus:

“Now, Their Lordships are of opinion, that one of the first

and highest duties of all courts is to take care that the act of

the court does no injury to any of the suitors, and when the

expression ‘the act of the court’ is used, it does not mean

merely the act of the primary court, or of any intermediate

court of appeal, but the act of the court as a whole, from the

lowest court which entertains jurisdiction over the matter up

to the highest court which finally disposes of the case. It is

the duty of the aggregate of those Tribunals, if I may use the

expression, to take care that no act of the court in the course

of the whole of the proceedings does an injury to the suitors

in the court.”

83. This passage was quoted in the Gujarat High Court by D.A.

Desai, J., speaking for the Gujarat High Court in Soni Vrajlal v. Soni

Jadavji [AIR 1972 Guj 148 : (1972) 13 Guj LR 555] as mentioned

before. It appears that in giving directions on February 16, 1984, this

Court acted per incuriam inasmuch it did not bear in mind

consciously the consequences and the provisions of Sections 6 and 7

of the 1952 Act and the binding nature of the larger Bench decision

in Anwar Ali Sarkar case [1952 SCR 284 : AIR 1952 SC 75 : 1952

Cri LJ 510] which was not adverted to by this Court. The basic

fundamentals of the administration of justice are simple. No man

should suffer because of the mistake of the court. No man should

suffer a wrong by technical procedure of irregularities. Rules or

procedures are the handmaids of justice and not the mistress of

the justice. Ex debito justitiac, we must do justice to him. If a man

has been wronged so long as it lies within the human machinery

of administration of justice that wrong must be remedied. This is

a peculiar fact of this case which requires emphasis.”

(emphasis supplied)

27

JUDICIAL REVIEW OF THE PRESIDENTIAL ORDER

29. The power of pardon, as conferred under Article 72 and 161 of the

Constitution, is sovereign. It is a power of compassion and empathy. It

is meant to remove or reduce all pains, penalties and punishment

suffered by a convict. The exercise of the aforementioned sovereign

power by the highest constitutional authority, either of the State or the

Centre, is a final grace given under the Constitution for the convict to

reintegrate into the society.

30. Power under Article 72 and 161 of the Constitution is not appellate or

revisional in nature. It is an executive power travelling on a different

channel, which cannot be termed as a power of appeal or review.

31. A challenge to the exercise of power under Article 72 and 161 of the

Constitution would involve limited judicial review on grounds such as

inadequate application of mind, amongst others.

Kehar Singh v. Union of India, (1989) 1 SCC 204

“10. We are of the view that it is open to the President in the exercise

of the power vested in him by Article 72 of the Constitution to

scrutinise the evidence on the record of the criminal case and come

to a different conclusion from that recorded by the court in regard to

the guilt of, and sentence imposed on, the accused. In doing so, the

President does not amend or modify or supersede the judicial

record. The judicial record remains intact, and undisturbed. The

President acts in a wholly different plane from that in which the

Court acted. He acts under a constitutional power, the nature of

which is entirely different from the judicial power and cannot be

regarded as an extension of it….”

(emphasis supplied)

28

State of Haryana v. Jagdish, (2010) 4 SCC 216

“28. Nevertheless, we may point out that the power of the sovereign

to grant remission is within its exclusive domain and it is for this

reason that our Constitution makers went on to incorporate the

provisions of Article 72 and Article 161 of the Constitution of India.

This responsibility was cast upon the executive through a

constitutional mandate to ensure that some public purpose may

require fulfilment by grant of remission in appropriate cases. This

power was never intended to be used or utilised by the executive as

an unbridled power of reprieve. Power of clemency is to be

exercised cautiously and in appropriate cases, which in effect,

mitigates the sentence of punishment awarded and which does

not, in any way, wipe out the conviction. It is a power which the

sovereign exercises against its own judicial mandate. The act of

remission of the State does not undo what has been done

judicially. The punishment awarded through a judgment is not

overruled but the convict gets benefit of a liberalised policy of

State pardon….”

(emphasis supplied)

Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1

“242. In the aforesaid batch of cases, we are called upon to decide on

an evolving jurisprudence, which India has to its credit for being at

the forefront of the global legal arena. Mercy jurisprudence is a

part of evolving standard of decency, which is the hallmark of

the society.

xxx xxx xxx

244. It is well established that exercising of power under Articles

72/161 by the President or the Governor is a constitutional obligation

and not a mere prerogative. Considering the high status of office, the

Constitution Framers did not stipulate any outer time-limit for

disposing of the mercy petitions under the said Articles, which means

it should be decided within reasonable time. However, when the

delay caused in disposing of the mercy petitions is seen to be

unreasonable, unexplained and exorbitant, it is the duty of this

Court to step in and consider this aspect. Right to seek for mercy

under Articles 72/161 of the Constitution is a constitutional right

and not at the discretion or whims of the executive. Every

constitutional duty must be fulfilled with due care and diligence,

otherwise judicial interference is the command of the

Constitution for upholding its values.

245. Remember, retribution has no constitutional value in our

largest democratic country. In India, even an accused has a de

facto protection under the Constitution and it is the Court's duty

to shield and protect the same. Therefore, we make it clear that

29

when the judiciary interferes in such matters, it does not really

interfere with the power exercised under Articles 72/161 but only

to uphold the de facto protection provided by the Constitution to

every convict including death convicts.”

(emphasis supplied)

32. Suffice it is to state that Courts will have to exercise adequate caution

and circumspection while dealing with an executive order passed in

exercise of the power conferred under Article 72 or 161 of the

Constitution. We make it clear that when a challenge is made to an

executive order, with an independent prayer for exercising the power

under Section 9(2) of the 2015 Act, they being distinct and independent,

refusal of judicial review of the former will not obliterate the mandatory

duty pertaining to the latter.

FACTUAL MATRIX

33. The Appellant stood charged for the offence of culpable homicide

amounting to murder. The incident occurred way back on 15.11.1994.

A statement under Section 313 of the Code of Criminal Procedure, 1973

(hereinafter referred to as “CrPC, 1973”) was recorded by the trial

Court. Under the format of the statement, the Appellant gave his name,

his father’s name, his age and other particulars. He had given his age as

20 years, as on 07.03.2001. In reply to Question No. 26, he stated that

it was correct that he had opened a bank account and that a cheque book

had been issued. This statement is irrelevant in the context of juvenility.

30

34. After his conviction, he raised the plea of juvenility during the hearing

on sentence by stating that he was about 17 years of age at the time of

occurrence. It is not in dispute that he was illiterate. The trial Court,

while relying upon his statement regarding the bank account, presumed

that he was a major and sentenced him to death, overwhelmed by the

nature of the crime. On an appeal to the High Court, the Appellant was

represented by an Amicus Curiae. An attempt was again made to raise

the plea of juvenility, by stating that the Appellant was required to be

tried by a Juvenile Court and be given the benefit of being a juvenile.

Once again, the bank account and the cheque book were relied upon. In

tune with the thinking of the trial Court, the High Court was also

persuaded by the offence committed.

35. The matter reached this Court. This time, the Appellant placed reliance

upon the birth certificate issued by the Dariya Para Bodinath Board

School dated 28.04.2001. This Court, having found that the reasoning

of the High Court cannot be faulted with, dismissed the appeal. Thus,

the views expressed by the trial Court and confirmed by the High Court

were duly concurred with. Undeterred and undaunted, the Appellant

filed a Review Petition, reiterating the fact that he was a minor at the

time of the offence. It was also pointed out that it was his deceased

employer who filled the details to open the bank account. The Review

31

Petition was dismissed. After the said dismissal, a Mercy Petition filed

before the Governor of the State of Uttarakhand, was also rejected.

36. Thereafter, a Writ Petition was filed before this Court, by the

Appellant’s parents along with a social worker, enclosing a copy of the

school certificate dated 19.06.2003 from the headmaster and a transfer

certificate dated 28.04.2001. This Writ Petition filed invoking Article

32 of the Constitution, was dismissed on 16.02.2005 with liberty to

invoke the curative jurisdiction of this Court. Accordingly, a Curative

Petition was filed. It is interesting to note that by way of a counter

affidavit to the Curative Petition, Respondent No. 2 herein, after

verifying the school certificate, produced another certificate dated

07.01.2006 issued by the Dariya Para Bodinath Board School, which

reiterated the fact that the Appellant was 14 years of age on the date of

the occurrence. Unfortunately, this Curative Petition was also

dismissed by an order of this Court dated 06.02.2006.

37. After the amendment incorporating Section 7A into the 2000 Act, the

Appellant’s mother filed a Mercy Petition before Hon’ble the President

of India. During the pendency of the said Mercy Petition, the 2007

Rules, came into effect. Incidentally, an ossification test was also done

by a Medical Board constituted by the Meerut Jail, on a request made

by the Appellant by way of an application. The Medical Age Certificate

32

issued therein also indicated that the Appellant was aged around 14

years at the time of the occurrence.

38. By the Presidential Order dated 08.05.2012, the death sentence of the

Appellant was commuted to life imprisonment, with a caveat that he

shall not be released until the attainment of 60 years of age. An

application under the Right to Information Act, 2005 was filed

thereafter by the Appellant, through which information was obtained

from the bank that any minor above 10 years of age can have an

independent bank account, provided he knew how to read and write,

and also that no cheque book was issued for the bank account opened

in the name of the Appellant.

39. A subsequent Curative Petition filed by him was rejected by the

Registry as not maintainable. In the year 2019, the Appellant filed a

Writ Petition before the High Court invoking Article 226 of the

Constitution, laying a challenge to the Presidential Order while seeking

yet another relief on the basis of Section 9(2) of the 2015 Act. By a

comprehensive judgment, the Writ Petition was dismissed by the High

Court inter alia holding that the power of judicial review over an

executive order passed in exercise of Article 72 of the Constitution is

limited, and the proceedings against the Appellant had attained finality.

Suffice it is to state that merits were not gone into in view of the clear

33

stand of the State on the age of the Appellant. Aggrieved, the Appellant

is before us.

SUBMISSIONS

40. Dr. S. Muralidhar, learned Senior Counsel appearing for the Appellant

submitted that the High Court committed an error in not considering the

independent prayer sought for by the Appellant. It is not in dispute that

the age of the Appellant was 14 years at the time of commission of the

offence. There is no judicial finality attained and the phrase “any stage”

used in Section 9(2) of the 2015 Act must be given an extended

meaning. There is no contrary finding given against the Appellant vis-

à-vis the plea of juvenility, which he has raised at every stage. It is a

case where grave injustice has been meted out, as can be demonstrated

by the lack of adjudication and, therefore, the Appellant is entitled for

immediate release. As the Appellant has been unfairly kept under

incarceration including the earlier solitary confinement, which is

obviously untenable and illegal, while granting the relief of releasing

the Appellant forthwith, he should be adequately compensated for the

loss of formative years suffered by him in the prison.

41. To buttress his submissions, the Learned Senior Counsel has placed

reliance upon the following decisions:

34

(i) Section 9(2) of the Juvenile Justice Act, 2015 can be invoked

even after the final disposal of the case

• Ram Narain v. State of Uttar Pradesh, (2015) 17 SCC 699.

• Hari Dutt Sharma v. The State of Uttar Pradesh, Order of the

Supreme Court dated 07.02.2022 in Writ Petition (Crl.) 367

of 2021.

(ii) Beneficial and retrospective applicability of change in law

post the dismissal of the Curative Petition on 06.02.2006

• Hari Ram v. State of Rajasthan, (2009) 13 SCC 211.

• Abdul Razzaq v. State of Uttar Pradesh, (2015) 15 SCC 637.

• T Barai v. Henry Ah Hoe and another, (1983) 1 SCC 177.

(iii) Claim of juvenility can be raised and considered even after

the President has exercised powers under Article 72,

Constitution of India

• Kehar Singh v. Union of India, (1989) 1 SCC 204.

• Ram Deo Chauhan v. Bani Kanta Das, (2010) 14 SCC 209.

42. Per contra, Mr. K.M. Nataraj, learned Additional Solicitor General, and

learned Counsel Ms. Vanshaja Shukla appearing for the Respondents

submitted that this is an attempt to reopen and re-hear an issue which

has attained finality. There was indeed an adjudication by this Court on

the earlier occasion. The Mercy Petition was considered under the

35

constitutional mandate and, therefore, it does not require any

interference. The Special Leave Petition, as filed, is not maintainable.

The bone ossification test cannot be the sole basis for declaring the

appellant as the minor. While summing up, the Learned Additional

Solicitor General submitted that without prejudice to the other

contentions, if this Court comes to the aid of the Appellant, it should be

clarified that it shall not stand as a precedent. In any case, there is due

compliance of Rule 12(3) of the 2007 Rules, which is not in dispute, as

can be seen even from the present affidavit filed by the Respondent

No.2.

43. To buttress her submissions, the Learned Counsel for Respondent No.

2 has placed reliance upon the following decisions:

• Vinay Sharma v. Union of India, (2020) 4 SCC 391.

• Pawan Kumar Gupta v. State (NCT of Delhi), (2021) 13 SCC

249.

DISCUSSION

44. During the course of the hearing, we directed Respondent No.2 to

obtain fresh instructions on the admission made in the counter affidavit

filed by it in the Curative Petition filed earlier by the Appellant. This

was pertaining to the certificate produced by the Appellant and the

validity of the ossification test. An affidavit has been filed by

36

Respondent No. 2 reiterating its earlier stand as regards the certificate.

Therefore, on facts, there is no dispute that the Appellant was only 14

years old at the time of the commission of the offence.

45. The facts as narrated above, speak for themselves. At every stage,

injustice has been inflicted by the Courts, either by ignoring the

documents or by casting a furtive glance. The Appellant despite being

illiterate, raised this plea one way or another, right from the trial Court

up to the conclusion of the Curative Petition before this Court.

46. The approach of the Courts in the earlier round of litigation cannot be

sustained in the eye of law. There can be no reliance on the statement

recorded under Section 313 of CrPC, 1973 particularly when the

Appellant was asked to give his particulars for the purpose of recording

his statement. Even the said statement shows that he was 20 years of

age at the time of making his deposition, which could only mean that

he was 14 years of age at the time of the commission of the offence.

The bank account has no relevance under the Acts and the relevant

rules, and in any case, it is to be proved, though not contemplated under

Rule 12 of the 2007 Rules. The statement given by the Appellant at the

time of the hearing on his sentence, would also pale into insignificance,

as even then he would have been a minor at the time of commission of

the offence, under both the 2000 and the 2015 Acts.

37

47. Though the 2000 Act was already enacted before the Appellant’s

conviction, even assuming that only the 1986 Act was in vogue, the

procedural mandate contemplated thereunder was also not followed by

the trial Court and the High Court. Before this Court, the Appellant had

relied upon the school certificate in the Criminal Appeal. It was once

again relied upon in the Review Petition. Thereafter, additional

documents were relied upon by the Appellant in the Writ Petition and

also in the Curative Petition which was subsequently filed. In the

Curative Petition, a counter affidavit was filed by the State certifying

the documents furnished by the Appellant to be true. Nonetheless, the

said petition was dismissed without according any reason.

48. We are taking note of these facts only for the purpose of dealing with

the case as these discussions are not even relevant in view of the clear

statement in writing made on two occasions by the Respondent No. 2.

We may further add that even the then existing State Rules were not

duly followed, and if followed, the same would have enured to the

benefit of the Appellant.

49. We would only say that when the plea of juvenility was raised, it should

have been dealt with under the existing laws at the relevant point of

time, especially when there exists a tacit and clear admission as to the

age of the Appellant. In fact, there is no need for such an inquiry in

view of the aforesaid position. In our considered view, this Court could

38

have dealt with the Writ Petition filed under Article 32 of the

Constitution, as it raised an independent prayer for the enforcement of

a right conferred under a social welfare legislation.

50. In the subsequent Writ Petition filed before the High Court, two

different prayers had been made, namely, the determination of the

Appellant’s plea of juvenility and consequent release, or alternatively,

judicial review of the decision of the President or the Governor and

consequent release. As the Executive cannot be construed to have

undertaken an adjudication on the determination of the age of the

accused, and with the first prayer being a distinct one invoking Section

9(2) of the 2015 Act, we feel that the High Court has committed an error

in its reasoning. We would only state that this is a case where the

Appellant has been suffering due to the error committed by the Courts.

We have been informed that his conduct in the prison is normal, with

no adverse report. He lost an opportunity to reintegrate into the society.

The time which he has lost, for no fault of his, can never be restored.

51. As we find that the Appeal deserves to be allowed in view of the

conclusion arrived at, we are inclined to set aside the sentence imposed

in excess of the upper limit prescribed under the relevant Act, while

maintaining the conviction rendered. It cannot be construed that the

Presidential Order is interfered with, as the issue that we are concerned

with, is the failure of the Court in not applying the mandatory

39

provisions of the 2015 Act with specific reference to the plea of

juvenility. Therefore, it is not a review of the Presidential Order, but a

case of giving the benefit of the provisions of the 2015 Act to a

deserving person.

52. From the custody certificate filed on record, it appears that the

Appellant has undergone imprisonment for almost 25 years, during

which time, the society has undergone significant transformation which

the Appellant might be unaware of and find difficult to adjust with.

53. In view of the same, we direct the Uttarakhand State Legal Services

Authority (for short “the State Authority”) to play a proactive role in

identifying any welfare scheme of the State/Central Government,

facilitating the Appellant’s rehabilitation and smooth reintegration into

the society upon his release, with particular emphasis on his right to

livelihood, shelter and sustenance guaranteed under Article 21 of the

Constitution. We further direct the State Authority to assist him in

availing any such scheme under which he is found eligible and wishes

to avail, and such assistance may be effected through the concerned

District Legal Services Authority, if the State Authority finds the same

expedient and necessary. The Registry is directed to forthwith

communicate this order to the State Authority.

54. The Appeal is allowed. The impugned judgment stands set aside. The

sentence imposed against the Appellant in excess of the upper limit

40

prescribed under the relevant Act, shall stand set aside, while making it

clear that the conviction shall continue. The Appellant shall be released

forthwith, if not required in any other case.

55. Pending application(s), if any, shall stand disposed of.

...…………………… …. J.

(M. M. SUNDRESH)

…………………………. J.

(ARAVIND KUMAR)

NEW DELHI;

JANUARY 08, 2025