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Sher Singh @ Sheru Vs. State Of U.P.

Allahabad High Court Criminal Appeal No.1883 Of 2013

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Reserved AFR

Reserved on: 11.08.2016

Delivered on: 21.09.2016

Court No. - 21

Case :- Criminal Appeal No.1883 Of 2013

Appellant :- Sher Singh @ Sheru

Respondent :- State of U.P.

Counsel for

Appellant :-

Dharmendra Singhal, Babit Kumar,

J.S. Audichya, Rajul Bhargava

Counsel for

Respondent :-

Government Advocate

Hon'ble V.K. Shukla, J.

Hon'ble Ramesh Sinha,J.

Hon'ble Bharat Bhushan,J.

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

Kidnapping for ransom of a 3 year old child and his recovery in

a police raid led to a trial by the Sessions Court in which the

appellant has been convicted by the judgement dated 15.4.2013.

In this appeal, an issue of juvenility has been raised in the

background that the incident in which the appellant is involved is of

15th/16th May 2003. The appellant claims that his date of birth

recorded in the High School Examination (Matriculation) record is

15th October 1986 and as such on the date of the incident, he had

not attained the age of 18 years, consequently, he was entitled to

the benefit of being a juvenile as contemplated under the Juvenile

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

Juvenile Justice (Care and Protection of Children) Rules 2007 framed

thereunder.

What appears from the record is that the appellant had moved

an application for declaring him to be juvenile before the concerned

Court in Session Trial No. 188 of 2004. The prosecution had moved

an application for conducting a joint trial of this case along with the

Session Trial No. 56-A of 2004 and 188-A of 2004.

The application moved for declaring the appellant a juvenile in

Session Trial No. 188 of 2004 was sent to the Juvenile Justice Board

and in that file, vide order dated 5.9.2005, the claim of the appellant

to declare him a juvenile in Case Crime No. 147 of 2004 and Case

Crime No. 148 of 2004, the Juvenile Justice Board rejected the plea

of the appellant after getting a medical report from the Chief Medical

Officer, Mathura dated 4.7.2005. The order dated 5.9.2005

categorically records that since no other evidence was adduced the

parties agreed for the disposal of the application and it was held that

the applicant was aged about 19 years on the date of the incident in

the aforesaid case crime numbers.

After almost four years thereafter, a prayer appears to have

been made in Session Trial No. 188-A of 2004 connected with the

same incident praying for declaration of the appellant in the said

Session Trial as a juvenile. The matter was examined by the Juvenile

Justice Board and on 19.11.2009, the prayer for declaring him a

juvenile was rejected by the Juvenile Justice Board against which the

appellant filed an appeal on 19.9.2011 in terms of Section 52 of the

2000 Act after a period of almost two years. It appears that at the

stage of appeal the matriculation certificate was adduced and

pressed for the first time as it conformed to the 2007 Rules. In these

proceedings, a reference was made of the application moved for

declaring the appellant to be juvenile bearing no. 35-Kha. This was

the application, which was moved for sending the file to the Juvenile

Justice Board, but prior to that, after the order dated 5.9.2005

referred to hereinabove, a request had been made to send the file to

the learned Sessions Court.

Thus two sets of orders came into existence in relation to the

claim of juvenility of the appellant, one dated 5.9.2005 and the other

dated 19.11.2009.

The appeal, which was against the order dated 19.11.2009

was dismissed on 29.9.2011 and the appellate court recorded all the

above noted facts in the said order. What appears from the order

dated 29.9.2011 is that this contention of the appellant about

declaring him to be a juvenile was dismissed on the observations

that were noted including the observation that no appeal had been

filed against the order dated 5.9.2005 passed earlier in relation to

S.T. No. 188 of 2004.

Faced with this at this stage, the appellant filed an Appeal No.

153 of 2012 against the order dated 5.9.2005, which was dismissed

on 4.2.2013 firstly, on the ground that the appeal had been

presented after almost seven years and there was no reason to

condone the delay and secondly, the appellant had full knowledge of

the order dated 5.9.2005, that was subject matter of consideration

by the Juvenile Justice Board in the subsequent order dated

19.11.2009 and dismissal of the appeal on 29.9.2011.

These facts have been mentioned clearly in the appellate

order dated 4.2.2013.

The appellant, thereafter probably realising the legal

obstruction on account of the order dated 5.9.2005 having become

final, preferred Writ Petition No. 3438 of 2013 which was dismissed

as withdrawn treating it to be infructuous vide order dated

13.10.2014 but with an observation that the right of the petitioner to

raise the issue of juvenility shall not be affected in the present

appeal.

The judgment in the writ petition dated 13th October 2014 is

extracted hereunder :

"Learned counsel for the petitioner submitted that during the course

of trial, the petitioner moved an application under Section 7 (a) of the

Juvenile Justice Act, 2000 to declare him as juvenile. However, that

application was rejected by the court concerned and accordingly, the

petitioner was prosecuted under the general criminal law and was

convicted by the trial court. Against the said judgment and order of

conviction, the petitioner has already preferred criminal appeal in this

Court.

Thus, this writ petition has now become infructuous. Learned counsel

for the petitioner prays to withdraw this writ petition.

Accordingly, this writ petition is dismissed as withdrawn.

However, it may not affect the right of the petitioner to raise the issue

of juvenility in the appeal pending in this Court. "

These peculiar facts, about the subsequent claim of juvenility

emanating from the order dated 19.11.2009 rejecting the claim on

the ground of excessive delay, and earlier rejection dated 5.9.2005

that was challenged subsequently in appeal, after rejection of the

appeal against the order dated 19.11.2009 on 29.9.2011, gave rise

to the writ petition that was dismissed on 13.10.2014 with

observations noted therein.

A Division Bench that heard the appeal earlier passed the

following order on 28.5.2015:-

"Hon'ble Bala Krishna Narayana,J.

Hon'ble Mohd. Tahir,J.

Heard learned counsel for the applicant-appellant, learned A.G.A for

the State and perused the record.

Learned counsel for the applicant-appellant submitted that the

applicant-appellant was juvenile at the time of occurrence in question,

so this matter be referred to the Juvenile Justice Board, Mathura for

ascertaining the age of the applicant-appellant at the time of

occurrence in question.

In view of the submission of the applicant-appellant's counsel, this

matter is referred to the Juvenile Justice Board, Mathura which shall

after giving opportunity to the complainant / first informant and the

State ascertain the age of the applicant-appellant at the time of the

incident in question.

Let a copy of the F.I.R. and charge sheet submitted by the police

along with the copy of the order be transmitted to the Juvenile Justice

Board, Mathura through District Judge, Mathura for holding an inquiry

for the aforesaid purpose. This Court expects that the inquiry shall be

completed within a period of one month from the date of receipt of the

copy of this order, where after the report shall be submitted by the

Board. As soon as the report is received, the Registry shall list this

appeal on 20.07.2015 before the appropriate Bench for passing

appropriate order.

Order Date :- 28.5.2015"

Subsequently another Bench passed the following order on

20.7.2015:-

"Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Pramod Kumar Srivastava,J.

Heard Sri Dharmendra Singhal, learned counsel for the appellant.

A plea of juvenility was taken before the Juvenile Justice Board,

which was rejected during the course of the trial itself. The appellant

filed an appeal against the same which is stated to have been

rejected on the ground of limitation. Against the said appellate order,

a writ petition no. 3438 of 2013 was filed, but by the time the writ

petition came to be decided, the trial court had already convicted the

appellant.

The writ petition was, therefore, allowed to be withdrawn with liberty

to take this plea of juvenility in this appeal itself.

Consequently, a supplementary affidavit dated 16.10.2014 alongwith

an application was filed on which this court passed an order on

28.5.2015 referring the matter to the Juvenile Justice Board once

again. What we find is that the issue of juvenility had become final but

the writ petition was dismissed as withdrawn with the presumption

that the issue has become infructuous. However, while permitting the

withdrawal, the court observed that it shall not affect the right of the

petitioner to raise issue of juvenility in this appeal. We find from the

judgment of the trial court taking notice of this plea of juvenlity in

paragraph-4 of the judgment and then after having found that the

appellant was not a juvenile, it assumed jurisdiction of trial and has

now finally convicted the appellant. In such a situation, Sri Singhal

may explain as to how without setting aside or overcoming the order

of juvenility that has already been passed, this Court can now

proceed once the said issue has been noticed by the trial court while

assuming jurisdiction to try the appellant and then proceeded to

convict to him. Even otherwise the report of the Juvenile Justice

Board has not yet arrived.

Let the matter come up with a fresh report from the court below on

Monday i.e. 27.7.2015.

Order Date :- 20.7.2015"

The report and the order dated 17.7.2015 as desired has been

furnished in a sealed envelop sent by the Juvenile Justice Board,

Mathura. The same is extracted hereinunder:

“i=koyh vkt is'k gqbZA iz'uxr i=koyh ekuuh; mPp U;k;ky; bykgkckn] }kjk fdz0

vihy la[;k 1883@2013 'ksjflag mQZ 'ks: cuke m0iz0 jkT; esa bl funsZ'k ds lkFk

fd'kksj U;k; ifj"kn eFkqjk dks izkIr gqbZ Fkh fd fd'kksu U;k; ifj"kn~ eFkqjk ekuuh;

mPp U;k;ky; ds vkns'k dh izfr izkIr gksus ds ,d ekg ds vUnj izkFkhZ 'ksjflg mQZ

'ks: dh iz'uxr ?kVuk ds le; vk;q fu/kkZj.k tkWp djsaA mDr vkns'k ds vuqikyu esa

ifj"kn }kjk 'ksjfalag mQZ 'ks: rFkk oknh eqdnek dks uksfVl fuxZr fd;s x;sA mHk;i{k

U;k;ky; ds le{k mifLFkr vk;sA mudh cgl lquh x;hA

oknh eqdnek }kjk fd'kksj U;k; ifj"kn eFkqjk dks ;g voxr djk;k x;k fd iz'uxr

fd'kksj ds lEcU/k esa iwoZ esa gh fd'kksj U;k; ifj"kn eFkqjk }kjk vk;q fu/kkZj.k tkWp dh

x;h gS ftlesa vius vkns'k fnukad 05&09&2005 dks 'ksjflag mQZ 'ks: }kjk dksbZ Hkh

izi= ugh izLrqr fd;k x;k gSA rc rRdkyhu fd'kksj U;k; ifj"kn eFkqjk 'kSf{kd

vfHkys[kksa ds vHkko esa eSMhdy djk;k x;kA mDr eSMhdy vk[;k esa mldh vk;q 21

o"kZ ik;h x;hA ftlds vk/kkj ij rRdkhyu fd'kksj U;k; ifj"kn eFkqjk ds iz/kku

eftLVzsV ,oa lnL; }kjk mls ?kVuk dh frFFk ij 19 o"kZ dk ikrs gq;s mls o;Ld ?

kksf"kr fd;k x;kA oknh eqdnek }kjk mDr vkns'k dh Nk;kizfr i=koyh ij nkf[ky dh

x;h gS ,oa blds vfrfjDr muds }kjk fd'kksj U;k; ifj"kn eFkqjk ds vkns'k fnukWd

05&09&2005 ds fo:) izLrqar vihy la[; 113@2012 ds vkns'k dh lR;kfir izfr Hkh

izLrqr dh x;h gSA ftlds voyksdu ls fofnr gksrk gS fd fnukWd 4&2&2013 dks

vihyh; U;k;ky; }kjk mDr vihy fujLr dj nh x;hA i=koyh ij oknh }kjk ,d

vU; vkns'k toSukby izdh.kZ okn la[;k 34@2010 fnukafdr 29&09&2011 Hkh izLrqr

fd;k gS ftlds voyksdu ls Kkr gksrk gS fd izkFkhZ 'ksjflag mQZ 'ks: dk mDr izkFkZuk

i= Jheku vij ftyk ,oa l= U;k;k/kh'k U;k;ky; la[;k&1 eFkqjk }kjk fnukWd

29&9&2011 dks fujLr fd;k tk pqdk gSA

mDr leLr izi=ksa ds voyksdu ls Li"V gS fd fd'kksj ds lEcU/k esa iwoZ esa mldks

Ik;kZIr ekSdk fn;s tkus ds mijkUr fd'kksj U;k; ifj"kn eFkqjk }kjk fnukad

05&09&2005 dks ?kVuk dh frfFk dks mls o;Ld ikrs gq;s mls fd'kksj ugha ekuk x;kA

ijUrq pwWfd ekuuh; mPp U;k;ky; }kjk fd'kksj U;k; ifj"kn eFkqjk dks ?kVuk ds le;

mldh vk;q fu/kkZj.k tkWp dk vkns'k fn;k x;k gSA vr% ;g ifj"kn ekuuh; mPp

U;k;ky; ds vkns'k ls ck/; gSA ekuuh; mPp U;k;ky; ds mDr vkns'k ds ifjizs{; esa

fd'kksj U;k; ifj"kn eFkqjk }kjk izkFkhZ 'ksjfalg ds firk jkeohj flag dks ijhf{kr djk;k

x;kA ftUgksaus viuh eq[;&ijh{kk esa ;g dFku fd;k gS fd 'ksjflag mQZ 'ks: dh

tUefrfFk 15&10&1986 gSA lu 2003 esa c`t vkn'kZ b.Vj dkyst ekaV ls gkbZLdwy dh

ijh{kk izkbZosV nh FkhA mlds iwoZ 'ksjflag mQZ 'ks: d{kk 6 ls 10 rd jk"Vzh; b.Vj

dkyst jk;k esa i<+k Fkk ijUrq 10 oha esa ogka Qsy gks x;k FkkA vU; fo|ky;ksa esa Hkh

mldh tUefrfFk 15&10&1986 gh gSA fo}ku lgk;d vfHk;kstu vf/kdkjh }kjk dh

x;h ftjg esa mlus ;g dgk gS fd mls vius gj cPps dh tUefrfFk D;k gS ugh crk

ldrkA blds vfrfjDr bl lk{kh }kjk vU; dksbZ egRoiw.kZ dFku ugha fd;k gSA

fd'kksj U;k; ifj"kn eFkqjk }kjk c`t vkn'kZ b.Vj dkyst ekaV ds iz/kkukpk;Z dks 'ksjflg

ls lEcfU/kr 'kSf{kd vfHkys[kksa ds lkFk vkgwr fd;k x;kA mUgksaus viuh eq[;&ijh{kk esa

crk;k gS fd 'ksjfalg us o"kZ 2005 esa gkbZLdwy dh ijh{kk mRrh.k dh gS ftlesa mldh

tUefrfFk 15&10&1986 vafdr gSA muds }kjk ek/;fed f'k{kk ifj"kn }kjk tkjh dzkWl

fyLV dh Nk;k izfr Loizekf.kr djds nkf[ky dh x;h gS] ftl ij izn'kZ [k&1 vafdr

fd;k x;kA ftlds voyksdu ls fofnr gksrk gS fd 'ksjfalg iq= jkeohj dh tUefrfFk

15&10&1986 vafdr gSA blds vfrfjDr bl lk{kh }kjk izkFkhZ 'ksjfalg ds gkbZLdwy

vadi= ,oa izek.k i= dks ns[kdj ;g crk;k x;k fd ;g mlds fo|ky; dh gSA

ftldh izfr ij dze'k% izn'kZ [k&2 o izn'kZ [k&3 Mkys x;sA fo}ku lgk;d vfHk;kstu

vf/kdkjh }kjk dh x;h ftjg esa lk{kh us crk;k gS fd Nk= dh tUefrfFk dsls vafdr

dh x;h gS bldk muds ikl dksbZ lk{; ugh gSA mlus d{kk 9 rd dh f'k{kk dgka ls

izkIr dhA bldk Hkh dksbZ izek.k muds ikl ugha gSA oknh eqdnek }kjk vU; dksbZ lk{;

izLrqr ugha fd;k x;kA

;gkWa fd'kksj U;k; fu;ekoyh 2007 dk fu;e 12 ¼3½ dk voyksdu mfpr izrhr gksrk gS

ftlesa ;g /kkfjr gS fd fdlh fd'kksj dh vk;q fu/kkZj.k ds le; ojh;rkdze esa lk{;

bl izdkj fy;s tkosaxsA

1& eSfVzdqys'ku izek.k i=] ;fn ;g u gks rks]

2& izFke izos'k Ldwy dk tUe izek.k i=] ;fn ;g Hkh u gks rks]

3& uxj ikfydk ;k iapk;r }kjk tkjh tUe izek.k i=A

mDr rhuksa dh vuqifLFkfr esa pfdRlh; }kjk fu/kkZfjr vk;qA

mDr fu;e ds izko/kkuksa ds vuqlkj izkFkhZ }kjk eSfVzdqys'ku izek.k i=] nkf[ky fd;s x;s

gS] ftudh lEiqf"V mDr fo|ky; ds iz/kkukpk;Z dh lk{; ls Hkh gks jgh gS rFkk

i=koyh ij vfHk;kstu ;k oknh eqdnek dh vksj ls ,slk dksbZ lk{; nkf[ky ugha fd;k

x;k gS ftlls bl 'kSf{kd vfHkys[kksa dh lR;rk lafnX/k gksrh gksA

bl izdkj mijksDr leLr foospuk ,oa i=koyh ij izLrqr lk{; ds ,d:is.k ifj'khyu

ds mijkUr fd'kksj U;k; ifj"kn eFkqjk dk loZlEer er gS fd iz'uxr ?kVuk fnukWd

16&5&2003 dh gS tcfd 'kSf{kd vfHkys[kksa ds vuqlkj izkFkhZ 'ksjfalg mQZ 'ksjk dh

tUefrfFk 15&10&1986 gSA bl izdkj ?kVuk dh frfFk ij mldh vk;q 16 o"kZ 7 ekg 1

fnu vk jgh gSA vr% ?kVuk dh frfFk ij 18 o"kZ ls de vk;q dk ik;s tkus ij og

fof/k dk mYya?ku djus okyk fd'kksj ?kksf"kr fd;s tkus ;ksX; gSA

vkns'k

rnuqlkj 'ksjflag mQZ 'ksjk iq= jkeohj flag fuoklh xyh eosf'k;ku Fkkuk jk;k ftyk

eFkqjk dks ?kVuk dh frfFk 16&05&2003 ij 18 o"kZ ls de vk;q dk ik;s tkus ds dkj.k

fof/k dk mYya?ku djus okyk fd'kksj ?kksf"kr fd;k tkrk gSA

vkns'k fu;ekuqlkj lhy cUn fyQkQs esa ekuuh; tuin U;k;k/kh'k egksxn; eFkqjk ds

ek/;e ls ekuuh; bykgkckn mPp U;k;ky; vfoyEc izsf"kr gksA”

The appellant has been held to be aged less than 18 years on

the date of the incident.

Faced with this situation, the Division Bench has framed

following questions to be considered to lay down the law correctly:

(i) Whether the right of a juvenile to raise the issue of juvenility can

be denied, by dismissing a writ petition as infructuous and then

permitting him to raise the issue in a criminal appeal when the same

issue had been raised before the Juvenile Justice Board and an

appeal had been decided in accordance with Section 52 of the 2000

Act as in the present case, on applying the doctrine of finality?

(ii) Whether the law laid down by prescribing a procedure of allowing

the question to be raised in a criminal appeal as an alternate

substitute through a miscellaneous application under the judgment

dated 13.10.2014 by the learned Single Judge is correct or not?

(iii) Whether in view of the law laid down by the Apex Court

particularly in the case of Abuzar Hossain @ Gulam Hossain (supra)

and Abdul Razzaq Vs. State of U.P. (supra), the issue presently

raised, would also stand covered by the ratio and the observations

made therein or not ?

Shri Dharmendra Singhal, Advocate submits that the

provisions of The Juvenile Justice (Care and Protection of Children)

Act, 2000 is a beneficial piece of legislation for the benefit of the

juvenile and the scheme of Act would go to show that once it is

substantiated from the record in question that the incumbent was

juvenile on the relevant date i.e. commission of the offence, then

he/she cannot be sentenced and for this purpose he has proceeded

to point out that all such cases are liable to be reopened at any

stage and even those matters that have attached finality are also

liable to be reopened and in view of this, liberal view should be

taken in the matter that would achieve the object of the Act and

substantial justice should not be shackled by procedures as justice is

not at all handmade of procedures and in view of this, once there is

no order of determining age in consonance with sub-rule 3 of Rule

12 of The Juvenile Justice (Care and Protection of Children) Rules,

2007, the reference should be answered accordingly.

Shri Imran Ullah, learned Additional Advocate General, on the

other hand, contended that closed chapter should not be permitted

to be reopened and in view of this, the reference in question should

be answered accordingly.

Shri Vimlendu Tripathi, Advocate appearing for the State also

supplanted the argument advanced on behalf of the State by

submitting that once a competent authority had proceeded to take a

decision and full fledged remedial mechanism has been provided for

to avail the said benefit and the same has been availed, then

collateral challenge is not at all permissible in law and as such, the

reference be answered accordingly.

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

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 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, 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.

(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;

(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 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 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.

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

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

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. Legislative intent was also made clear by

means of Section 64 of J.J. Act to extend benefit of the provisions of

the said Act qua juvenile in conflict with law who were undergoing

sentence for reviewing their respective case on the parameters of

clause (l) of Section 2 and other provisions contained in the Act and

the Rules and then taking consequential action. 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 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 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 obviate the outcome of the decision of the Apex Court in the

case of Pratap Singh (supra), as has been observed in various

decisions of the Apex Court in the case of Hari Ram v. State of

Rajasthan:(2009) 13 SCC 211 has held 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 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.-