Chadha Vs. Vikas Choudhary and Another  INSC 996 (27 May 2008)
S.B. SINHA & LOKESHWAR SINGH PANTA
(Arising out of SLP (CRL) NO. 6832 of 2007) REPORTABLE S.B. SINHA, J.
1. Leave granted.
2. How to determine the age of a juvenile in delinquency within the meaning
of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short
the Act) is in question in this appeal which arises out of a judgment
and order dated 11th September, 2001 passed by a learned Single Judge of the
Delhi High Court in Criminal Revision No. 156 of 2007 whereby and whereunder an
order dated 20th January, 2007 passed by a learned Additional Session Judge,
Delhi, was set aside.
3. Appellant before us is the first informant, the father of a boy, Parkash
Chadha @ Sunny who was kidnapped for ransom and later on murdered. He was aged
about 20 years. He was found missing after he had gone out with his friends on 18th January, 2003. A missing report was lodged on the said date. On or about 19th
January, 2003, Respondent No.1 was suspected of involvement in the said crime
by the police. He, on the basis of the investigation carried out for the said
purpose charge-sheeted for commission of offence under Sections 302/364/34 of
the Indian Penal Court by the Court. Although the first information report was
lodged on 19th January, 2003, the respondent No.1 was arrested on 4th May, 2003. A charge sheet was filed on 22nd July, 2003 wherein it was recorded that
calls for payment of ransom were being made from time to time and last of such
call for payment of ransom was received on 11th March, 2003. In regard to the finding out of the dead body of Parakh Chadha DD No. 40 under Section
302/201 of the Indian Penal Code was separately registered.
4. Upon his production, the respondent No.1 did not claim himself to be a
juvenile. Charges were framed. The prosecution started adduction of evidence on
or about 3rd February, 2005. Only on 31st May, 2005 respondent No.1 herein
filed an application for transfer of the case to the Juvenile Board on the plea
that he was a juvenile on the date of occurrence. A school leaving
certificate was also produced. The Learned Additional Sessions Judge, trying
the case, directed the Investigating Officer to submit a report. The report
pursuant thereto reads as under :- Inquiry conducted into the matter
revelas that Vikas Choudhary was admitted to Class-I in Lawrence School of
Ashok Vihar Phase-I, Delhi vide Admission NO.412. The date of birth showed in
the register 20.01.1985. There is no birth certificate or other document
available in support of date of birth. The date of admission is
5. The learned Sessions Judge was not satisfied therewith. The Investigating
Officer was directed to get the respondent No.1 medically examined for getting
his age determined. Pursuant thereto or in furtherance thereof, the respondent
was examined medically. A report was submitted on 9th August, 2005. It reads as under :- HRH Medical Report Advise X-Ray as per dorsal spine, medial ends
of clavicles, V-C Scapulae in bony feature upper ending element, lower ends of
radius iliac crusts have fixed. Interior angle of scapula, acromina processes,
iliac crests, medial ends of clavicles are ischail lubordsiles show fusion of
Upper end lower surfaces of vertera show no fusion of their end plates.
Radiological ages in between 22-25 yrs. The learned Judge on the said
report, opined :- The report of Dr. P.K. Jain, Senior Radiologist about
the bone age X-Ray determination of accused Vikas Choudhary received today. As
per the report, the age of accused/applicant Vikas Choudhary on the date of his
examination was between 22-25 years. On calculation, the age of accused Vikas
Choudhary on the date of incident, i.e.
18.01.2003 come to be 19 years and 5 months. So far as the matriculation
certificate of accused/applicant Vikas Choudhary is concerned, it is a common
practice that parents mention the age of their children on the lesser side in
the school in order to avail the benefit in the services later on. Hence, no
weightage can be given to the matriculation certificate in the presence of
medical evidence, which shows that the applicant/accused Vikas Choudhary was
more than 19 years of age on the date of incidents.
Considering the totality of the circumstances, I prima facisely hold that
the present applicant/accused Vikas Choudhary was major at the time of
occurrence. The application for sending him to the Juvenile Court stands
6. On a revision application filed thereagainst before the High Court, it by
an order dated 31st August, 2006 set aside the said order and directed :-
Anyhow, these are the matters which require a more detailed examination
particularly in view of the fact that there exists a School Certificate wherein
the date of birth of the petitioner has been given.
The veracity of the School Certificate and Transfer Certificate submitted by
the petitioner is not doubted. In these circumstances, the impugned order is
set aside and the learned Additional Sessions Judge is directed to consider the
matter afresh and if it appears to the learned Additional Sessions Judge that
the petitioner is a Juvenile on the basis of the material on records, he is
required to be sent to the Juvenile Justice Board for further proceedings.
7. Again by reason of an order dated 20th January, 2007 the learned Judge
held :- As per School Leaving Certificate, the date of birth of the
accused is 20.01.1985. The only question before the Court is whether the School
Leaving Certificate of the accused has to be relied upon or Bone Age X-Ray
record is to be relied upon. School Leaving Certificate of the accused was
verified during the proceedings and report was filed by IO wherein it has been
mentioned that no birth certificate or other certificate is available in
support of the date of the accused in the School record. Relying on the
decision of this Court in Pratap Singh v. State of Jharkhand and another, [
(2005) 3 SCC 551 ] it was held :- From the judgments cited by the learned
APP, it is clear that to ascertain the age of accused persons only School
Leaving Certificate cannot be relied upon alone and the court has to see all
the other facts and circumstances along with the other material placed on
record. If assuming that the age of the accused was 22 years on the date of his
examination as per Bone Age X-ray Examination report, after giving margin of
two years from the age reported upto 25 years, even then n the date of alleged
offence, he was more than 18 years of age.
According to the conviction slip dated 04.05.2003, of the accused, which was
filled on the basis of the information given by the accused, the age of the
accused has been mentioned as 19 years and even after calculation, he was more
than 18 years of age on the date of alleged offence. 8. Respondent moved
the High Court again in revision.
By reason of the impugned judgment dated 11th September, 2007, the High
Court held :- As far as the ossification test and the medical evidence is
concerned there too the approach of the learned Additional Sessions Judge is in
my opinion, erroneous.
According to the expert the petitioner was 22-25 years on the date of his
examination i.e. 9.8.2005. The Learned Additional Sessions Judge acknowledged
that such determination is a rough estimate and the individual would have to be
given benefit by deducing some years but proceeded to do so from the outer age
indicated. This is an incorrect approach as the juvenile is entitled to
beneficial interpretation in such case.
Therefore, the two years deduction made would have be (sic) from the lower
age indicated namely, 22 years. That would mean that as in August, 2005 the
Petitioner was probably 20 years; as on the date of incident, (20.01.2003) in
all probability he was less than 18 years. This interpretation is also in
consonance with the claims based on the Board Certificate relied upon by the
9. Mr. Sushil Kumar, learned senior counsel appearing on behalf of the
appellant would submit :- 1) That the High Court committed a serious error in
passing the impugned judgment in so far as it failed to take into consideration
that from the conduct of the respondent No.1 it is evident that he did not
claim to be a juvenile at the first instance and only when the trial started,
he filed a purported school leaving certificate, which is suspect.
2) The approach of the High Court in analysing the medical report is not
correct as the starting point should not have been taken to be 22 but should
have been taken at 25.
3) In any event, having regard to the provisions contained in Section 472 of
the Code of Criminal Procedure the offence must be held to have been a
continuous one and as ransom calls were being made till 11th May, 2003, the
said date should be considered to be the cut off date for the purpose of
determination of the age.
10. Mr. G.K. Kaushik, learned counsel appearing on behalf of respondent No.1
on the other hand would submit:
1. That at all stages 18th January, 2003 has been taken to be the date of
occurrence, and even the charges have been framed on the premise that the
occurrence had taken place on the said date.
2 The conclusion of the High Court that the appellant is, on 17th January,
2003, would be 17 years 5 months corroborates with the medical report that if
on the date of examination his examination, respondent No.1 is taken to be 22
years of age.
11. Determination of age of a juvenile in delinquency must be
determined as and when an application is filed. In view of the decision of the
Constitution Bench in Pratap Singh (supra) it is no longer res integra that
that the relevant date for determination is the age of the accused would be the
date on which the occurrence took place.
12. What would be the date on which offence has been committed in a given
case has to be decided having regard to the fact situation obtaining therein.
Indisputably our Criminal Laws contemplate a continuing offence. Section 472
of the Code of Criminal Procedure reads as under :- 472. Continuing
In the case of a continuing offence, a fresh period of limitation shall
begin to run at every moment of the time during which the offence
continues. If an offence has been a continuing offence, then the age of
the juvenile in delinquency should be determined with reference to the date on
which the offence is said to have been committed by the accused. It may be true
that the prosecution proceeded on the basis that the entire offence had taken
place on 18th January, 2003. We have, however, been taken through the
charge-sheet, from a perusal whereof it appears that the appellant had been
getting calls for payment of ransom despite the fact that the deceased had, in
the meanwhile, been killed.
It is one thing to say that a missing report has been filed on a particular
date but it is another thing to say that in a case of this nature when the
actual offence(s) had taken place would remain uncertain.
Giving calls for payment of ransom is an offence. In case of murder coupled
with abduction in a given case may be considered to be a continuous offence.
13. This Court in a catena of decisions have laid down the criteria for
determining the age. We would notice some of them.
In Ravinder Singh Gorkhi v. State of U.P., [(2006) 5 SCC 584] this Court
opined :- 38. The age of a person as recorded in the school register or
otherwise may be used for various purposes, namely, for obtaining admission;
for obtaining an appointment; for contesting election; registration of
obtaining a separate unit under the ceiling laws; and even for the purpose
of litigating before a civil forum e.g. necessity of being represented in a
court of law by a guardian or where a suit is filed on the ground that the
plaintiff being a minor he was not appropriately represented therein or any
transaction made on his behalf was void as he was a minor. A court of law for
the purpose of determining the age of a party to the lis, having regard to the
provisions of Section 35 of the Evidence Act will have to apply the same
standard. No different standard can be applied in case of an accused as in a
case of abduction or rape, or similar offence where the victim or the
prosecutrix although might have consented with the accused, if on the basis of
the entries made in the register maintained by the school, a judgment of
conviction is recorded, the accused would be deprived of his constitutional
right under Article 21 of the Constitution, as in that case the accused may
unjustly be convicted.
39. We are, therefore, of the opinion that until the age of a person is
required to be determined in a manner laid down under a statute, different
standard of proof should not be adopted. It is no doubt true that the court
must strike a balance. In case of a dispute, the court may appreciate the
evidence having regard to the facts and circumstances of the case. It would be
a duty of the court of law to accord the benefit to a juvenile, provided he is
one. To give the same benefit to a person who in fact is not a juvenile may
cause injustice to the victim.
14. This aspect of the matter has also been considered in Jitendra Ram alias
Jitu v. Stateof Jharkhand, [ (2006) 9 SCC 428 ] wherein it was held :- 20.
We are, however, not oblivious of the decision of this Court in Bhola Bhagat v.
State of Bihar wherein an obligation has been cast on the court that where
such a plea is raised having regard to the beneficial nature of the socially
oriented legislation, the same should be examined with great care.
We are, however, of the opinion that the same would not mean that a person
who is not entitled to the benefit of the said Act would be dealt with
leniently only because such a plea is raised. Each plea must be judged on its
own merit. Each case has to be considered on the basis of the materials brought
on records. (emphasis supplied)
15. This Court in Jyoti Prakash Rai @ Jyoti Prakash v. State of Bihar, [ JT
2008 (3) SC 397 ] held :- It is in the aforementioned situation, we are of
the opinion that the test which may be applied herein would be to take the
average of the age as opined by both the medical boards. Even applying that
test, the age of the appellant as on 01.04.2001 would be above 18 years.
We, however, hasten to add that we have taken recourse to the said method
only for the purpose of this case and we do not intend to lay down any general
proposition of law in this behalf As indicated hereinbefore, in so doing, we
have also taken into consideration the fact that the appellant had filed
documents in support of his claim that he was a juvenile but the same were
found to be forged and fabricated which is itself a factor to show that he was
making attempts to obtain a benefit to which he might not have been entitled
to. [ See also Balu @ Bakthvatchalu vs. State of Tamilnadu, [ JT 2008 (2)
SC 321 ].
16. The question came up for consideration recently again in Jameel v. State
of Maharashtra, [2007 (2) SCALE 32] wherein it has been held :- 9. It was
furthermore submitted that although the age of the appellant on the date of the
occurrence was more than sixteen years but below eighteen years, having regard
to the provision of the Juvenile Justice (Care and Protection of Children) Act,
2000, (for short, the 2000) it was imperative on the part of the
court to follow the procedures laid down therein.
13. So far as the submission of the learned counsel in regard to the
applicability of the 2000 Act, is concerned, it is not in dispute that the
appellant on the date of occurrence had completed sixteen years of age. The
offence having been committed on 16.12.1989, the 2000 Act has no application.
In terms of Juvenile Justice Act, 1986, juvenile was defined to
mean a body who had not attained the age of sixteen years or a girl who
had attained the age of eighteen years:.
17. We have, however, been informed that the effect of Model Rules having
come into force and, if so, the applicability thereof may have to be considered
in a given case but keeping in view the facts of the case, we are of the
opinion that the matter may be considered afresh in the light of the provisions
of Section 472 of the Code of Criminal Procedure by the learned trial court.
The judgment of the trial court is set aside accordingly. The appeal is
Applications for impleadment, modification/clarification of order dated
2.11.2007 and bail have become infructuous and are dismissed as such.