Bakthvatchalu Vs. State of Tamilnadu
 Insc 170 (12
Sinha & V.S. Sirpurkar
APPEAL NO. 295 OF 2008 (Arising out of SLP (Crl.) No. 4905 of 2007) S.B. SINHA,
Appellant was prosecuted for commission of an offence under Section 302 of the
India Penal Code. The occurrence took place on 20th April, 1998.
arrested on the charge of murder of one Ramu Maistry on 8th May, 1998. Upon completion of investigation a
charge sheet was filed against him on 30th November, 1998. The learned trial court delivered
a judgment on 28th
April, 2000. In the
said judgment his age was shown to be '18'. An application was filed for
sending him to Borstal School in terms of Section 10-A of the Tamil Nadu Borstal Schools
Act, which was refused. An appeal preferred by the appellant before the High
Court has been dismissed by reason of the impugned judgment.
Court issued a limited notice as to whether the appellant was a juvenile on the
date of occurrence of the incident.
Mukherjee, the learned counsel appearing on behalf of the appellant, submitted
that in view of the materials placed on records, an inquiry should have been
initiated as regards the age of the appellant.
Juvenile Justice Act, 1986 (hereinafter referred to as "the Act" was
applicable when the incident took place, In terms whereof, a juvenile, under
Section 2(h) was defined as a boy who has not attained the age of 16 years.
Parliament, however, enacted, the Juvenile Justice (Care and Protection of
Children) Act, 2000. It came into force with effect from 1st April, 2001.
Section 2(k) defines 'juvenile' to mean a person who has not completed eighteen
years of age.
Section 20 of the Act reads as under:- "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."
question was raised as to whether the date on which the incident took place or
the date on which the accused was produced before the Court would be the
relevant date for computing the age of juvenile in view of the decision of this
Court in Arnit Das vs. State of Bihar : (2000) 5 SCC 488.
correctness of the said decision came up for consideration before a
Constitution Bench of this Court in Pratap Singh vs. State of Jharkhand : (2005) 3 SCC 551. The
Constitution Bench held;
. Section 20 of the Act as quoted above deals with the special provision in
respect of pending cases and begins with a non obstante clause. The sentence
"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 came into force" has great significance. The proceedings in
respect of a juvenile pending in any court referred to in Section 20 of the Act
are relatable to proceedings initiated before the 2000 Act came into force and
which are pending when the 2000 Act came into force. The term "any
court" would include even ordinary criminal courts. If the person was a
"juvenile" under the 1986 Act the proceedings would not be pending in
would be pending in criminal courts only if the boy had crossed 16 years or the
girl had crossed 18 years.
shows that Section 20 refers to cases where a person had ceased to be a
juvenile under the 1986 Act but had not yet crossed the age of 18 years then
the pending case shall continue in that court as if the 2000 Act has 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, shall forward the juvenile to the Board which shall pass orders in
respect of that juvenile. "
:- "37 . The net result is:
. .. ..
( b )
The 2000 Act would be applicable in a pending proceeding in any court/authority
initiated under the 1986 Act and is pending when the 2000 Act came into force
and the person had not completed 18 years of age as on 1-4-2001."
separate judgment, one of us (S.B. Sinha, J.) stated :- "95. Section 20 of
the Act of 2000 would, therefore, be applicable when a person is below the age
of 18 years as on 1-4-2001. For the purpose of attracting
Section 20 of the Act, it must be established that:
the date of coming into force the proceedings in which the petitioner was
accused were pending; and
that day he was below the age of 18 years.
the purpose of the said Act, both the aforementioned conditions are required to
be fulfilled. By reason of the provisions of the said Act of 2000, the
protection granted to a juvenile has only been extended but such extension is
not absolute but only a limited one. It would apply strictly when the
conditions precedent therefor as contained in Section 20 or Section 64 are
fulfilled. The said provisions repeatedly refer to the words
"juvenile" or "delinquent juveniles" specifically. This
appears to be the object of the Act and for ascertaining the true intent of
Parliament, the rule of purposive construction must be adopted. The purpose of
the Act would stand defeated if a child continues to be in the company of an
adult. Thus, the Act of 2000 intends to give the protection only to a juvenile
within the meaning of the said Act and not an adult. In other words, although
it would apply to a person who is still a juvenile having not attained the age
of 18 years but shall not apply to a person who has already attained the age of
18 years on the date of coming into force thereof or who had not attained the
age of 18 years on the date of commission of the offence but has since ceased
to be a juvenile."
Recently the Parliament has introduced Juvenile Justice (Care and Protection of
Children) Amendment Act, 2006 (which came into force with effect from
23.8.2006), in terms whereof retrospective and restorative meaning was given to
the definition of 'juvenile' stating :- ` "4. In section 2 of the
principal Act, - (iv) for clause (l), the following clause shall be
substituted, namely :- (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;"
view of the decision of the Constitution Bench of this Court as also the
amendments carried out by the Parliament, evidently the question as to whether
the appellant was aged '18' as on 1st April, 2001 requires consideration.
a situation of this nature, where despite the possibility of a juvenile having
been tried and convicted for rigorous imprisonment for life by the trial court
or the High Court, this Court has in a large number of decisions directed an
enquiry to be made as regards the age of the juvenile.
shall refer to a few of them.
Gurpreet Singh vs. State of Punjab :
(2005) 12 SCC 615 a Bench of this Court opined :- "18. Shri Prabha Shanker
Misra, learned Senior Counsel appearing in support of Criminal Appeal No. 710
of 1995 apart from challenging the conviction of the appellant Mohinder Pal
Singh on merits, which we have already dealt with, submitted that on the date
of the alleged occurrence, he was a juvenile within the meaning of Section 2( h
) of the Juvenile Justice Act, 1986 (hereinafter referred to as "the
Act") as on that date he had not attained the age of 16 years. It appears
that this point was not raised either before the trial court or the High Court.
But it is well settled that in such an eventuality, this Court should first
consider the legality or otherwise of conviction of the accused and in case the
conviction is upheld, a report should be called for from the trial court on the
point as to whether the accused was juvenile on the date of occurrence and upon
receipt of the report, if it is found that the accused was juvenile on such
date and continues to be so, he shall be sent to juvenile home. But in case it
finds that on the date of the occurrence, he was juvenile but on the date this
Court is passing final order upon the report received from the trial court, he
no longer continues to be juvenile, the sentence imposed against him would be
liable to be set aside.
in this connection may be made to a decision of this Court in Bhoop Ram v.
State of U.P. 7 in which case at the time of grant of special leave to appeal,
report was called for from the trial court as to whether the accused was
juvenile or not which reported that the accused was not a juvenile on the date
of the occurrence but this Court, differing with the report of the trial court,
came to the conclusion that the accused was juvenile on the date the offence
was committed and as he was no longer a juvenile on the day of judgment of this
Court, sentence awarded against him was set aside, though the conviction was
upheld. In the present case, we have already upheld the conviction of the
appellant Mohinder Pal Singh as well but it would be just and expedient to call
for a report from the trial court in relation to his age on the date of the
directed :- "20. In Criminal Appeal No. 710 of 1995 filed by appellant Mohinder
Pal Singh, call for a report from the trial court as to whether on the date of
occurrence this appellant was juvenile within the meaning of Section 2(h) of
the Juvenile Justice Act, 1986? The trial court shall give opportunity to both
the parties to adduce evidence on this point. Let the entire original records
of the trial court be returned to it. Report as well as records must be sent to
this Court within a period of three months from the receipt of this order. Upon
receipt of report from the trial court, final order shall be passed in this
Ravinder Singh Gorkhi vs. State of U.P
: (2006) 5 SCC 584 this Court held :- "21. Determination of the date of
birth of a person before a court of law, whether in a civil proceeding or a
criminal proceeding, would depend upon the facts and circumstances of each
case. Such a date of birth has to be determined on the basis of the materials
on records. It will be a matter of appreciation of evidence adduced by the
parties. Different standards having regard to the provision of Section 35 of
the Evidence Act cannot be applied in a civil case or a criminal case.
furthermore held :- "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 marriage; 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
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. In this case, the appellant had never been serious in projecting
his plea that he on the date of commission of the offence was a minor. He made
such statement for the first time while he was examined under Section 313 of
the Code of Criminal Procedure.
The family background of the appellant is also a relevant fact. His father was
a "Pradhan" of the village.
found to be in possession of an unlicensed firearm. He was all along
represented by a lawyer. The court estimated his age to be 18 years. He was
tried jointly with the other accused. He had been treated alike with the other
accused. On merit of the matter also the appellant stands on the same footing
as the other accused.
prosecution has proved its case. In fact no such plea could be raised as the
special leave petition of the persons similarly situated was dismissed when the
Court issued notice having regard to the contention raised by him for the first
time that he was a minor on the date of occurrence."
However, in Jitendra Ram vs. State of Jharkhand : (2006) 9 SCC 428 this Court noticed that in a similar situation it
would be necessary to make an enquiry. It was stated :- "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.
plea must be judged on its own merit. Each case has to be considered on the
basis of the materials brought on records."
furthermore held :-
We, therefore, are of the opinion that the determination of the age of the
appellant as on the date of the commission of the offence should be done afresh
by the learned Sessions Judge."
are, therefore, of the view that in this case the trial judge should be
directed to hold the enquiry in regard to the age of the appellant on the date
of commission of the offence and in the event it is found that the appellant
was a juvenile within the meaning of the provisions of the said Act, he should
proceed with the matter in accordance with law. It is directed accordingly.
The appeal is allowed on the aforesaid terms.
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