VINOD KATARA versus STATE OF UTTAR PRADESH on 12 September 2022

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SUPREME COURT REPORTS

[2022] 9 S.C.R.

VINOD KATARA

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STATE OF UTTAR PRADESH

(Writ Petition (Criminal) No. 121 of 2022)

BSEPTEMBER 12, 2022

[DINESH MAHESHWARI AND J. B. PARDIWALA, JJ.]

Juvenile Justice (Care and Protection of Children) Act, 2000:ss. 3, 7A, 16, 20 – Applicability of the 2000 Act – Plea of juvenilityat belated stage – Determination of juvenility – On facts, writCapplicant while undergoing sentence of life imprisonment for offencepunishable u/s. 302/34 subjected to medical examination by theState in pursuant of the judgment by the High Court wherein theHigh Court directed the Juvenile Justice Boards to hold an enquiryfor determination of the age of prisoners languishing in jails whoDclaimed to have been juveniles in conflict with the law – MedicalBoard certified that on the date of the commission of the allegedoffence, the writ applicant could have been around 15 years of age– Thereafter, writ applicant obtained a Family Register Certificatewhich shows his age as 14 years – Instant writ petition filed by theapplicant claiming juvenility – Held: In view of s. 7A, the plea ofEjuvenility could be raised in any court, at any stage even after thefinal disposal of the Special Leave Petition – It is the documentaryevidence placed on record that plays a major role in determiningthe age of a juvenile in conflict of law – It is only in the cases wherethe documents or certificates placed on record by the accused inFsupport of his claim of juvenility are found to be fabricated ormanipulated, that the Court, the Juvenile Justice Board or theCommittee need to go for medical test for age determination – Onfacts, the Family Register cannot be accepted as equivalent tomatriculation certificate to prove the age of the accused – Convictwas subjected to medical examination, however, the report on recordGdoes not inspire much confidence – Despite all the odds against thewrit applicant, the matter to be looked into, in the larger interest ofjustice – Sessions court directed to examine the claim of the writapplicant to juvenility in regard with law within the stipulated period– If the Family Register is found to be authentic and genuine,H

ossification test report would not be required – Presiding Officer toascertain the authenticity and genuineness of the Family Register,and the Sessions Court to conduct ossification test or any othermodern recognized method of age determination, and submit itsreport – Juvenile Justice (Care and Protection of Children) Act,2015 – s. 94 – Juvenile Justice (Care and Protection of Children)Rules, 2007 – rr. 3(1), 3(2) and 12(3)(b) – Constitution of India –Arts. 32 and 39 – Juvenile Justice (Care and Protection of Children)Amendment Act, 2011.

Issuing directions, the Court

HELD: 1.1 It is well settled that in terms of Section 20 ofthe Juvenile Justice (Care and Protection of Children) Act, 2000,in all cases where the accused was above 16 years but below 18years of age on the date of occurrence, the proceedings pendingin the Court would continue and be taken to the logical endsubject to an exception that upon finding the juvenile to be guilty,the Court would not pass an order of sentence against him butthe juvenile would be referred to the Board for appropriate ordersunder the 2000 Act. From a reading of Section 7A what becomesvery obvious is that whenever a claim of juvenility is raised, aninquiry has to be made and such inquiry would take place byreceiving evidence which would be necessary but not an affidavitso as to determine the age of such person. [Paras 25, 28][856-F-G; 857-D-E]

1.2 Sub-clause (3) of the Rule 12 of the Juvenile Justice(Care and Protection of Children) Rules, 2007 clearly mandatesthat while conducting an inquiry about the juvenility of an accused,the Juvenile Justice Board would seek evidence by obtainingthe matriculation or equivalent certificates and in the absencewhereof the date of birth certificate from the school first attendedand in absence whereof the birth certificate given by a corporationor a Municipal authority or a Panchayat. It is made clear by sub-clause (b) that only in the absence of the said three documents,medical information would be sought from a duly constitutedMedical Board which will declare the age of the juvenile or child.Thus, it is only in the absence of the aforesaid documents thatthe Juvenile Justice Board could have asked for medicalinformation/ossification test. The 2000 Act stands repealed by AB

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Athe 2015 Act. The procedure for determining the age is now partof Section 94 of the 2015 Act which was earlier provided underthe Rule 12 of the Rules. [Para 32, 33][861-C-F]

1.3 Section 7A(1) of the 2000 Act and the proviso theretoprovided that a claim of juvenility might be raised before anyBcourt and it shall be recognized at any stage, even after the finaldisposal of the case, and such claim shall be determined in termsof the provisions contained in the 2000 Act and the Rules madethereunder, even if the juvenile has ceased to be so, on or beforethe date of commencement of the 2000 Act. Sub-section (2) ofSection 7A mandates that if the Court finds a person to be aCjuvenile on the date of the commission of offence under sub-section (1), it shall forward the juvenile to the Juvenile JusticeBoard for passing an appropriate order, and the sentence, if any,passed by a Court shall be deemed to have no effect. [Paras 39,40][871-A-C]D

1.4 The maximum period of detention in respect of ajuvenile is three years as provided in Section 15(1)(g). The saidSection provides that where the Juvenile Justice Board is, oninquiry, satisfied that the juvenile has committed an offence, thennotwithstanding anything to the contrary contained in any otherElaw for the time being in force, the Juvenile Justice Board may, ifit thinks fit, make an order directing the juvenile to be sent to aspecial home for a period of three years. [Para 42][872-B-C]

1.5 In view of Section 7A of the 2000 Act, applicable to thewrit applicant, the plea of juvenility could be raised in any court,Fat any stage even after the final disposal of the Special LeavePetition under Article 136 of the Constitution. In the case of thewrit applicant, his Special Leave Petition had also been dismissedby this Court. However, this Court is still obliged to consider theplea of juvenility taken by the writ applicant and grant himappropriate relief. The fact that the 2000 Act has later beenGreplaced by the 2015 Act would make no difference. [Para 43][872-C-D]

1.6 In deciding whether an accused is juvenile or not, ahyper technical approach should not be adopted. While H

appreciating the evidence adduced on behalf of the accused insupport of the plea that he is a juvenile, if two views are possibleon the same evidence, the Court should lean in favour of holdingthe accused to be juvenile in borderline cases. The inquirycontemplated is not a roving inquiry. The Court can accept asevidence something more than an affidavit i.e. documents,certificates etc. as evidence in proof of age. It is the documentaryevidence placed on record that plays a major role in determiningthe age of a juvenile in conflict of law. And, it is only in the caseswhere the documents or certificates placed on record by theaccused in support of his claim of juvenility are found to befabricated or manipulated, that the Court, the Juvenile JusticeBoard or the Committee need to go for medical test for agedetermination. [Para 45][876-D-G]

Ashwani Kumar Saxena v. State of Mahya Pradesh, AIR2013 SC 553 : [2012] 10 SCR 540 – relied on.

1.7 In the instant case, the accused has not produced anymatriculation certificate or equivalent certificate to prove his age.What is produced by him is only the Family Register issued underthe U.P. Panchayat Raj Act, 1947. The document cannot beaccepted as equivalent to matriculation certificate to prove theage of the accused. However, the evidentiary value of the FamilyRegister will have to be looked into in the course of the inquirythat this Court may order. [Para 48][877-D-E]

1.8 Ideally, there should not be any dispute as to the age ofa person if the birth is registered in accordance with law and dateof birth is entered in the school records on the basis of genuinerecord of birth. However, in India, the factors like poverty,illiteracy, ignorance, indifference and inadequacy of the systemoften lead to there being no documentary proof of a person’sage. Therefore, in those cases where the plea of juvenility is raisedat a belated stage, often certain medical tests are resorted toforage determination in absence of the documents enumeratedin Section 94 of the Act 2015. The rule allowing plea of juvenilityto be raised at a considerably belated stage has its rationale inthe contemporary child rights jurisprudence which requires thestakeholders to act in the best interest of the child. [Para 49][877-F-G]

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A1.9 The bone ossification test is a test that determines agebased on the “degree of fusion of bone” by taking the x-ray of afew bones. In simple words, the ossification test or osteogenesisis the process of the bone formation based on the fusion of jointsbetween the birth and age of twenty-five years in an individual.Bone age is an indicator of the skeletal and biological maturity ofBan individual which assists in the determination of age. The mostcommon method used for the calculation of the bone age isradiography of the hand and wrist until the age of 18 yearsbeyondwhich the medial age of clavicle is used for bone age calculationtill the age of 22 years as the hand and wrist bone radiographsCcannot be computed beyond 18 years of age as the elongation ofthe bone is complete after adolescence. However, it must be notedthat the ossification test varies slightly based on individualcharacteristics, therefore the ossification test though is relevanthowever it cannot be called solely conclusive. [Para 55][879-B- D]D

1.10 The 2015 Act under Section 94(2)(iii) read with Rule12(3) of the 2007 Rules provides the legislative sanction for theconduct of ossification test or other medical age determinationtest available in the absence of other documentary proof of agei.e. matriculation certificate or birth certificate, which has to beEgiven within 15 days from the date of such order. The test is tobe conducted by the Child Welfare Committee (CWC). Theprovision mentioned is the basis for determining the age of achild under the 2000 Act which even includes a child who is avictim of crime in addition to a child in conflict with the law. [ParaF56][879-D-F]

1.11 The bone ossification test is not an exact science thatcan provide with the exact age of the person. The individualcharacteristics such as the growth rate of bones and skeletalstructures can affect the accuracy of this method. [Para 58][880-GA-B]

1.12 In the case on hand the convict was subjected tomedical examination after being referred to the Medical Board.However, the report on record does not inspire much confidence.Over and above the same, the decision in the case of Ram VijayHSingh’s case makes it very clear that in the absence of a reliable

and trustworthy medical evidence to find out the age of theappellant, the ossification test conducted in the year 2021 whenthe appellant was above 50 years of age cannot be conclusive todeclare him as a juvenile on the date of the incident. This Courtobserved that when a person is around 18 years of age, theossification test can be said to be relevant for determining theapproximate age of a person in conflict with law. However, whenthe person is around 40-55 years of age, the structure of bonescannot be helpful in determining the age. In such circumstances,it will be a matter of debate as to what extent the new ossificationtest report that may come on record can be relied upon and towhat extent the same would be helpful to the appellant herein.Despite all the odds against the writ applicant, this Court wouldstill like to look into the matter in the larger interest of justice. Itwill be in fitness of things if the writ applicant convict is onceagain subjected to the ossification test at the Civil Hospital orany other latest medical age determination test and such testshall be carried out by a team of three doctors, one of whomshould be the head of the Department of Radiology. [Paras 63,64][882-D-H; 883-A]

1.13 In view thereof, the Sessions Court is directed toexamine the claim of the writ applicant to juvenility in regardwith law within one month from the date of communication of thisorder; the concerned Sessions Court shall also examine theauthenticity and genuineness of the Family Register sought tobe relied upon by writ applicant convict considering that thedocument does not appear to be contemporaneous. Thisdocument assumes importance, more particularly in the light ofthe fact that the ossification test report may not be absolutelyhelpful in determining the exact age of the writ applicant on thedate of incident. If the Family Register on record is ultimatelyfound to be authentic and genuine, then this Court may not haveto fall upon the ossification test report. In such circumstances,the Presiding Officer concerned shall pay adequate attentiontowards this document and try to ascertain the authenticity andgenuineness of the same. If need be, the statements of thepersons concerned i.e. from the concerned governmentdepartment may also be recorded; the Sessions Court shallensure that the writ applicant convict is medically examined by AB

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Ataking an ossification test or any other modern recognized methodof age determination; and the Sessions Court concerned shallsubmit its report as regards the aforesaid to this Court withinthe stipulated period. [Para 65][883-B-F]

Abuzar Hossain ALIAS Gulam Hossain v. State of WestBBengal reported in (2012) 10 SCC 489 : [2012] 9 SCR244; Ashok v. State of Madhya Pradesh; Pratap Singhv. State of Jharkhand, (2005) 3 SCC 551 : [2005] 1SCR 1019; Shah Nawaz v. State of Uttar Pradesh,(2011) 13 SCC 751 : [2011] 9 SCR 859; Arnit Das v.State of Bihar, (2000) 5 SCC 488 : [2000] 1 Suppl.CSCR 69; Bijender Singh v. State of Haryana (2005) 3SCC 685; Dharambir v. State (NCT of Delhi), (2010) 5SCC 344 : [2010] 5 SCR 137; Kalu v. State of Haryana,(2012) 8 SCC 34 : 2012 (7) JT 417; Manoj v. State ofHaryana, reported in (2022) 6 SCC 187 : 2022 (6) JTD547; Vishnu v. State of Maharashtra, (2006) 1 SCC 283: [2005] 5 Suppl. SCR 474; Madan Gopal Kakkad v.Naval Dubey, (1992) 3 SCC 204 : [1992] 2 SCR 921;Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681: (2010) 2 SCC (Cri) 1194; Jyoti Prakash Rai v. Stateof Bihar, (2008) 15 SCC 223 : (2009) 3 SCC (Cri) 796;EMukarrab v. State of Uttar Pradesh, reported in (2017)2 SCC 210 : [2016] 8 SCR 557; Rajendra Chandra v.State of Chhattisgarh, (2002) 2 SCC 287 : 2002 (1) JT265; Rishipal Singh Solanki v. State of Uttar Pradesh,(2021) SCC OnLine SC 1079; Court On Its OwnFMotion v. Dept. of Women and Child Development,reported in 2012 SCC OnLine Del 2774; Ram VijaySingh v. State of U.P., (2021) SCC Online SC 142-referred to.

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CRIMINAL ORIGINAL JURISDICTION: Writ Petition(Criminal) No. 121 of 2022.

Under Article 32 of The Constitution of India Rishi Malhotra, Jaydip Patil, Advs. for the Appellant.

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Andhendumauli Kr. Prasad, AAG, Vishnu Shankar Jain,Ms. Shreya Srivastava, Ashish Madaan, Ms. Ananya S., Advs. for theRespondent.

The Judgment of the Court was delivered by

J. B. PARDIWALA, J.

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1. Personal liberty of a person is one of the oldest concepts to bepurported by national courts. As long ago as in 1215, the English MagnaCarta provided that:- “No free man shall be taken or imprisoned.... but..... by lawof the land.”

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2. Today, the concept of personal liberty has received a far moreexpansive interpretation. The notion that is accepted today is that libertyencompasses these rights and privileges which have long been recognizedas being essential to the orderly pursuit of happiness by a free man andnot merely freedom from bodily restraint. There can be no cavil in sayingthat lodging juveniles in adult prisons amounts to deprivation of theirpersonal liberty on multiple aspects.

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3. This Writ Application under Article 32 of the Constitution is atthe instance of a convict accused undergoing life imprisonment for theoffence of murder seeking appropriate directions to the respondent State H

Aof Uttar Pradesh to verify the exact age of the convict on the date ofthe commission of the offence as it is the case of the convict that on thedate of the commission of the offence i.e. 10.09.1982 he was a juvenileaged around 15 years.

4. The facts giving rise to this litigation may be summarized asBunder:

(a) The writ applicant along with other co-accused persons wasput to trial for the offence punishable under Section 302 r/w 34 ofthe IPC; (b) The 5[th] Additional Sessions Judge, Agra in the sessions trialCNo. 535 of 1983 arising from the case crime no. 126 of 1982registered with the Fatehpur Sikri District, Agra held the writapplicant herein and the co-accused persons guilty of the offenceof murder and sentenced them to life imprisonment;

(c) The writ applicant herein and the other convicts went in appealDbefore the Allahabad High Court by filing the Cr. Appeal No. 133of 1986 questioning the legality and validity of the judgment &order of conviction passed by the trial court dated 06.01.1986;

(d) The appeal was heard by the High Court and vide judgmentand order dated 04.03.2016 came to be dismissed therebyEaffirming the judgment and order of conviction passed by thetrial court; (e) The writ applicant herein dissatisfied with the order passed bythe High Court dismissing his appeal, referred to above, camebefore this Court by filing application for Special Leave to AppealF(Crl.) No. 6048 of 2016. This Court vide order dated 16.08.2016declined to grant leave as prayed for and dismissed the SpecialLeave Petition.

5. It may not be out of the place to state at this stage that till thisCourt dismissed the Special Leave Petition vide the order dated 16.08.2016,Gthe writ applicant herein had not raised the question of him being a juvenileon the date of the commission of the alleged offence on 10.09.1982.

6. It appears that while the writ applicant was undergoing sentenceof life imprisonment, he was subjected to medical examination by theMedical Board constituted by the respondent State in pursuance of theHjudgment rendered by a Division Bench of the Allahabad High Court in the Criminal Writ Public Interest Litigation No. 855 of 2012, wherein theDivision Bench of the Allahabad High Court observed as under:

“Admittedly, as per the State’s earlier affidavits, it was claimedthat there were 72 prisoners, who may have been below 18years in age and who are detained in the various district orCentral jails. Their break up was as follows:

There were 23 such prisoners in Bareilly, 1 in Lucknow, 4in Allahabad, 2 in Etawah, 18 in Agra and 23 inFatehgarh. One such prisoner Raju, who belonged toFaizabad, whose age was determined to be below 18 yearsby the Principal Magistrate, Juvenile Justice Board wassent to Special Home after having been detained for a longtime in Faizabad jail.

Prima facie there appears to be some material for suggestingthat such prisoners, may have been below 18 years on thedate of commission of the offences. After the modification ofthe Juvenile Justice (Care and Protection of Children) Act,2000, (hereafter the Act) by Act No. 33 of 2006, under section2 (l) a juvenile in conflict with law means a juvenile who isalleged to have committed an offence and has not completedeighteen years of age as on the date of commission of suchoffence.

Under the proviso to section 7A (1) of the Act, it is mentionedthat a claim of juvenility may be raised before any court andit shall be recognised at any stage, even after the final disposalof the case, and such claim shall be determined in terms ofthe provisions contained in this Act and the Juvenile Justice(Care and Protection of Children) Rules, 2007 (hereinafterthe Rules).

We, therefore, direct the District Judges, who are Chairpersonsof their respective Legal Services Authorities to directlyoversee that efficient lawyers are appointed for the purposeof providing legal aid to the prisoners, (who are unable toengage private lawyers) who have been mentioned in the listfurnished by the State Government and described to be below18 years in age on the date of commission of offence. Thesaid legal aid lawyers should get the ages of the prisoners A

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ascertained by obtaining documents and carrying out theother measures provided under Rule 12 of the Juvenile JusticeAct and Rules and also on the lines suggested by the DelhiHigh Court in WP (C) No. 8889 of 2011 (Court on its ownmotion vs. Department of Women and Child Development andothers) in its order dated 11.5.2012. Obtaining informationabout the probable date of birth of other siblings can alsobe taken into account for ascertaining the true age of theseprisoners. The legal aid lawyers may also find out whetherthere are other prisoners in jail, who may be below 18 yearsof age on the date of commission of the offence and whoappear to be wrongly lodged in the regular prisons for adultsand the bases for their conclusions.

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Thereafter the matter may be placed before the PrincipalJudge, Juvenile Justice Board for determining of the ages asper the criteria set out above.

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The prosecution and the complainant will also of course begiven an opportunity to examine their own witnesses and tocross-examine the witnesses, who have been got examined onbehalf of the accused and for that purpose notices of theproceedings before the JJ Board shall be served on theEcomplainant/ prosecution. As it is possible that in some casesthe prisoners mentioned in the State’s list may indeed be below18 years in age on the date of offence, but as the basis forarrival at the conclusion in the State’s list were usually somepreliminary medical examinations and no detailed steps forascertaining ages had been taken after hearing both parties,Fand it cannot be ruled out that in certain cases extraneousmeasures may have been used for reducing the ages, we thinkthat such an exercise as detailed above wherein the ages areascertained after hearing both parties was needed. The saidexercise is to be competed within a period of two months andGthe reports submitted to this Court on its next listing.

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The District Judges/District Legal Services Authorities shalltake strict measures in future for ensuring that prisoners below18 years of age on the date of offence are not lodged inadults prisons in violation of the Juvenile Justice Act and Rules.

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So far as district Allahabad is concerned, we direct the DistrictJudge, Allahabad to permit Sister Sheeba Jose, Advocate andShri Rohan Gupta, Advocate to visit and interview theconcerned prisoners for the purpose of ascertaining their agesand for submitting the report to the Court on the next date oflisting.

It was further submitted by the learned counsel for thepetitioner that so far as the prisoner Raju is concerned, whoseage was determined to be below 18 years, he was earlierlodged in Faizabad jail and was subsequently sent to theSpecial Home. As he was convicted as far back as in theyear 2001 in a case under section 302 IPC. The respondentsshould inform this Court about the total period spent in jailby this prisoner and in case it exceeds 3 years (which wasthe maximum permissible sentence in view of section 15 of theAct) the basis for his being presently detained in the SpecialHome.”

Thus, vide the order dated 24.05.2012 referred to above passedin a Public Interest Litigation being Criminal (PIL) Misc. W.P. No. 855of 2012, the Allahabad High Court directed the Juvenile Justice Boardsto hold an enquiry for determination of the age of prisoners languishingin jails who claimed to have been juveniles in conflict with the law.

7. The Medical Board subjected the writ applicant herein to theX-rays of the skull and sternum. Upon medical examination of the writapplicant herein, the Medical Board gave its report dated 10.12.2021certifying that on 10.09.1982 i.e. the date of the commission of the allegedoffence, the writ applicant could have been around 15 years of age as onthe date of the medical examination, the convict was around 56 years ofage.

8. It appears that sometime later, the writ applicant was in a positionto obtain a document in the form of Family Register dated 02.03.2021issued under the U.P. Panchayat Raj (Maintenance of Family Registers)Rules, 1970. In the Family Register certificate, the year of birth of thewrit applicant herein is shown as 1968. If 1968 is the correct birth yearof the writ applicant herein, then in 1982 he was about 14 years of age.

9. In such circumstances referred to above, the writ applicant ishere before this Court. He claims that as he was a juvenile on the date A

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Aof the commission of the alleged offence sometime in the year 1982, hecould not have been put to trial along with other co- accused and shouldhave been dealt with under the provisions of the Juvenile Justice Act asprevailing at the relevant point of time. It is the prayer of the writ applicantthat the respondent State be directed to get the claim of the writ applicantin regard to the juvenility verified through the concerned Sessions CourtBor the Juvenile Justice Board.

Submissionsonbehalfofthewritapplicantconvict:

10. Mr. Rishi Malhotra, the learned counsel appearing for the writapplicant vehemently submitted that although till the dismissal of theCSpecial Leave Petition (Criminal) No. 6048 od 2016 by this Court videorder dated 16.08.2016, the convict had not raised the plea of juvenility,yet the law permits him to raise such a plea even at this point of timehaving regard to the provisions of the Juvenile Justice (Care and Protectionof Children) Amendment Act, 2011. It is submitted that there is clinchingevidence on record as on date in the form of certificate issued by theDMedical Board as well as the Family Register to indicate that in the year1982 the writ applicant could be around 15 years of age. The learnedcounsel would vehemently submit that there is no good ground to discardthe certificate issued by the Medical Board as well as the extract of theFamily Register.E11. To fortify the aforesaid submissions, the learned counsel seeksto rely upon a three-Judge Bench decision of this Court in the case ofAbuzar Hossain ALIAS Gulam Hossain v. State of West Bengalreported in (2012) 10 SCC 489.

12. In such circumstances referred to above, the learned counselFprays that there being merit in his writ petition, the same may be allowedand appropriate directions may be issued to do complete justice in thematter.

SubmissionsonbehalfoftheState

13. Mr. Ardhendhumauli Kr. Prasad, the learned AdditionalGAdvocate General appearing for the State, on the other hand, hasvehemently opposed the present writ application. The learned counselwould submit that the Family Register is not admissible in evidence andthe entries made therein are not decisive to determine the age. It isargued that the writ applicant has not placed on record any document ofH

any educational institution. It is also argued that no ossification test wasundertaken or no modern recognized method was adopted for thepurpose of determination of age.

14. The learned counsel appearing for the State invited the attentionof this Court towards the order passed by a Coordinate Bench of thisCourt in the case of Ashok v. State of Madhya Pradesh, Special Leaveto Appeal (Criminal) No. 643 of 2020 dated 29.11.2021. The order passedby the Coordinate Bench referred to above reads thus:- “By a judgment and order dated 29.07.1999, the AdditionalSessions Judge, Gohad, District Bhind, Madhya Pradesh,convicted the petitioner inter alia for offence under Section302 of the Indian Penal Code and sentenced him inter alia tolife imprisonment in Sessions Trial No. 260 of 1997. In thecause title of the said judgment and order, the petitioner hasbeen described as Ashok, S/o Balram Jatab age 16 yrs 9months and 19 days, R/o Village Anjani Pura, District Bhind.

The petitioner filed an appeal being Criminal Appeal No. 455of 1999 challenging his conviction and sentence. The saidcriminal appeal has been dismissed by the High Court by anorder dated 14.11.2017, which is impugned in the SpecialLeave Petition (Crl.) No. 643 of 2020, filed by the petitioner.The incident which led to the conviction of the petitioner, tookplace on 26.07.1997.

The petitioner claims that the petitioner was born on05.01.1981. The petitioner was, therefore, approximately16 years and 7 months old on the date of the incident. Inthis Court, the petitioner has for the first time contended thathe was a juvenile on the date of the incident. His convictionand sentence are, therefore, liable to be set- aside. The claimof juvenility was not raised in the High Court. The learnedAdditional Advocate General, appearing on behalf of the Stateargued that the claim of juvenility has been raised for thefirst time in this special leave petition. The Juvenile JusticeAct, 1986, which was in force on the date of commission ofthe offence as also the date of the judgment and order ofconviction and sentence by the Sessions Court was repealedby the Juvenile Justice (Care and Protection of Children) Act, A

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2000. The Act of 2000 received the assent of the President ofIndia on 30.12.2000 and came into force on 01.04.2001. TheAct of 2000 defined juvenile in conflict with the law to mean ajuvenile, who was alleged to have committed an offence andhad not completed 18th year of age as on the date ofcommission of such an offence.

Under the 1986 Act, the age of juvenility was up to the 16thyear. Section 7A of the 2000 Act as inserted by Act 33 of2006 with effect from 22.08.2006 provided as follows:- “7A. Procedure to be followed when claim of juvenility israised before any Court.-(1) Whenever a claim of juvenilityis raised before any court or a court is of the opinion thatan accused person was a juvenile on the date ofcommission of the offence, the court shall make an inquiry,take such evidence as may be necessary (but not anaffidavit) so as to determine the age of such person, andshall record a finding whether the person is a juvenile ora child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raisedbefore any Court and it shall be recognised at any stage,even after final disposal of the case, and such claim shallbe determined in terms of the provisions contained in thisAct and the rules made thereunder, even if the juvenile hasceased to be so on or before the date of commencement ofthis Act. (2) If the court finds a person to be a juvenile onthe date of commission of the offence under sub-section(1),it shall forward the juvenile to the Board for passingappropriate orders and the sentence, if any, passed by acourt shall be deemed to have no effect.”

The claim of juvenility can thus be raised before any Court,at any stage, even after final disposal of the case and if theCourt finds a person to be a juvenile on the date of commissionof the offence, it is to forward the juvenile to the Board forpassing appropriate orders, and the sentence, if any, passedby a Court, shall be deemed to have no effect. Even thoughthe offence in this case may have been committed before theenactment of the Act of 2000, the petitioner is entitled to the benefit of juvenility under Section 7A of the Act of 2000, if oninquiry it is found that he was less than 18 years of age onthe date of the alleged offence.

It is true as pointed out by the learned Additional AdvocateGeneral appearing on behalf of the State that the certificateof Akikrit Shash, High School School Endouri, District Bhind,Madhya Pradesh relied upon by the petitioner is stated tohave been issued on 17.07.2021. The said certificate doesnot specifically mention that the date of birth 01.01.1982 hadbeen entered at the time of first admission of the petitioner atthe primary school level.

Furthermore, there is a birth certificate issued by the GramPanchayat, Endouri, District Bhind, Madhya Pradesh whichindicates the date of birth of the petitioner as 05.01.1982 andnot 01.01.1982 as recorded in the school certificate referredto above.

The entry in the records of the Gram Panchayat, Endouri,District Bhind, Madhya Pradesh, also do not appear to becontemporaneous and the certificate has been issued in theyear 2017.

However, as pointed out by Mr. M.P. Parthiban, learnedcounsel appearing on behalf of the petitioner that the SessionsCourt has recorded the age of the petitioner as 16 years, 9months and 19 days. The petitioner has been in actual custodyfor over three years.

The 2000 Act has been repealed and replaced by the JuvenileJustice (Care and Protection of Children) Act, 2015. Section21 of the 2015 Act provides as follows:

“21. Order that may not be passed against a child in conflictwith law. – No child in conflict with law shall be sentencedto death or for life imprisonment without the possibility ofrelease, for any such offence, either under the provisionsof this Act or under the provisions of the Indian PenalCode or any other law for the time being in force.”

Considering that the Trial Court has recorded the age of thepetitioner as 16 years and odd, and has been in actual custody AB

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Ain excess of three years, which is the maximum for a juvenile,we deem it appropriate to grant the petitioner interim bail onsuch terms and conditions as may be imposed by the SessionsCourt. We further direct the Sessions Court to examine theclaim of the petitioner to juvenility in accordance with law,and submit a report to this Court within one month from theBdate of communication of this order.

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The concerned Sessions Court shall be entitled to examinethe authenticity and genuineness of the documents sought tobe relied upon by the petitioner, considering that thedocuments do not appear to be contemporaneous.

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In the event the documents are found to be questionable/unreliable, it will be open to the Sessions Court to have thepetitioner medically examined by taking an ossification testor any other modern recognized method of age determination.”

D15. The aforesaid order passed by the Coordinate Bench has beenrelied upon by the learned counsel appearing for the State to fortify hissubmission that if at all the issue in regard to the juvenility of the writapplicant requires consideration, the same should be by the SessionsCourt i.e. the Court which had originally tried the writ applicant for thealleged offence.E

16. In such circumstances referred to above, the learned counselappearing for the State prays that let the Sessions Court look into thecertificate issued by the Medical Board including the Family Registermore particularly its authenticity and genuineness.

FAnalysis:

17. Having heard the learned counsel appearing for the partiesand having gone through the materials on record, the only question thatfalls for our consideration is that whether we should ask the SessionsCourt to examine the authenticity and genuineness of the documentssought to be relied upon by the writ applicant in support of his plea ofGbeing a juvenile on the date of the commission of the alleged offence inthe year 1982 and also subject the convict to further ossification test?

18. The first and the foremost issue that arises for our considerationin this writ petition is in regard to the applicability of the provisions of theJuvenile Justice (Care and Protection of Children) Act, 2000 (for short,H“the 2000 Act”).

19. In the aforesaid context, we must first look into the relevantdates as follows:- A

(a) The date of the incident is 10.09.1982. Thus, on the date ofincident even the Juvenile Justice Act, 1986 was not in force.What was in force was the Children Act, 1960. The ChildrenAct, 1960 was a beneficial legislation enacted to take care ofBthe delinquent and neglected children. Under the said Act, achild meant a person who had not attained the age of 16 yearsin the case of a boy or 18 years in the case of a girl.

(b) The petitioner herein came to be convicted by the trial courtvide judgment and order dated 06.01.1986. Even on the dateof conviction, the Juvenile Justice Act, 1986 was not in force.The Juvenile Justice Act, 1986 came in force with effect from01.12.1986. Thus, even on the date of conviction, the ChildrenAct, 1960 governed the field.

C

(c) The appeal filed by the petitioner herein in the High Court ofAllahabad against the judgment and order of conviction passedby the trial court came to be decided and was ordered to bedismissed vide judgment and order dated 04.03.2016. It isrelevant to note that on the date when the appeal came to bedismissed by the High Court, the 2000 Act was in force.

D

E

(d) Special Leave to Appeal (Crl.) No. 6048 of 2016 filed by thepetitioner herein in this Court came to be dismissed vide orderdated 16.08.2016.

20. On and with effect from 15.01.2016, the Juvenile Justice (Careand Protection of Children) Act, 2015 (for short, “the 2015 Act”) cameinto force which repealed the 2000 Act. While the appeal of the petitionerherein against his conviction and sentence was pending in the HighCourt, the 2000 Act came into force which repealed the Juvenile JusticeAct, 1986. The 2000 Act inter alia raised the age of juvenility from 16to 18 years and in terms of Section20 of the 2000 Act, the determinationof juvenility was required to be done in all pending matters in accordancewith Section2(1)of the 2000 Act.

F

G

21. The effect of Section 20of the 2000 Act was consideredin Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551, and it wasstated as under:- H

A“31. Section 20 of the Act as quoted above deals with the specialprovision in respect of pending cases and begins with a non obstanteclause. The sentence “notwithstanding anything contained in thisAct, all proceedings in respect of a juvenile pending in any courtin any area on the date on which this Act came into force” hasgreat significance. The proceedings in respect of a juvenile pendingBin any court referred to in Section 20of the Act are relatable toproceedings initiated before the 2000 Act came into force andwhich are pending when the 2000 Act came into force. The term“any court” would include even ordinary criminal courts. If theperson was a “juvenile” under the 1986 Act the proceedings wouldCnot be pending in criminal courts. They would be pending in criminalcourts only if the boy had crossed 16 years or the girl had crossed18 years. This shows that Section20refers to cases where aperson had ceased to be a juvenile under the 1986 Act but hadnot yet crossed the age of 18 years then the pending case shallcontinue in that court as if the 2000 Act has not been passed andDif the court finds that the juvenile has committed an offence, itshall record such finding and instead of passing any sentence inrespect of the juvenile, shall forward the juvenile to the Boardwhich shall pass orders in respect of that juvenile.”

22. In Bijender Singh v. State of Haryana,(2005) 3 SCC 685,Ethe legal position as regards Section20was stated in following words:- “8. One of the basic distinctions between the 1986 Act and the2000 Act relates to the age of males and females. Under the 1986Act, a juvenile means a male juvenile who has not attained theage of 16 years, and a female juvenile who has not attained theFage of 18 years. In the 2000 Act, the distinction between male andfemale juveniles on the basis of age has not been maintained.The age-limit is 18 years for both males and females.

9. A person above 16 years in terms of the 1986 Act was not ajuvenile. In that view of the matter the question whether a personGabove 16 years becomes “juvenile” within the purview of the 2000Act must be answered having regard to the object and purportthereof.

10. In terms of the 1986 Act, a person who was not juvenile couldbe tried in any court. Section20of the 2000 Act takes care of H

such a situation stating that despite the same the trial shall continuein that court as if that Act has not been passed and in the event,he is found to be guilty of commission of an offence, a finding tothat effect shall be recorded in the judgment of conviction, if any,but instead of passing any sentence in relation to the juvenile, hewould be forwarded to the Juvenile Justice Board (in short “theBoard”) which shall pass orders in accordance with the provisionsof the Act as if it has been satisfied on inquiry that a juvenile hascommitted the offence. A legal fiction has, thus, been created inthe said provision. A legal fiction as is well known must be givenits full effect although it has its limitations. …………

11. ………….

12. Thus, by reason of legal fiction, a person, although not ajuvenile, has to be treated to be one by the Board for the purposeof sentencing, which takes care of a situation that the personalthough not a juvenile in terms of the 1986 Act but still would betreated as such under the 2000 Act for the said limited purpose.”

23. In Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344,the determination of juvenility even after conviction was one of the issuesand it was stated:-

“11. It is plain from the language of the Explanation to Section20that in all pending cases, which would include not only trials buteven subsequent proceedings by way of revision or appeal, etc.,the determination of juvenility of a juvenile has to be in terms ofclause (l) of Section 2, even if the juvenile ceases to be a juvenileon or before 1-4-2001, when the Act of 2000 came into force, andthe provisions of the Act would apply as if the said provision hadbeen in force for all purposes and for all material times when thealleged offence was committed.

12. Clause (l) of Section 2of the Act of 2000 provides that “juvenilein conflict with law” means a “juvenile” who is alleged to havecommitted an offence and has not completed eighteenth year ofage as on the date of commission of such offence. Section20also enables the court to consider and determine the juvenility ofa person even after conviction by the regular court and alsoempowers the court, while maintaining the conviction, to set asidethe sentence imposed and forward the case to the Juvenile Justice AB

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[2022] 9 S.C.R.

ABoard concerned for passing sentence in accordance with theprovisions of the Act of 2000.”

24. Similarly, inKaluv.StateofHaryana, (2012) 8 SCC 34, thisCourt summed up as under:- “21. Section20makes a special provision in respect of pendingBcases. It states that notwithstanding anything contained in theJuvenile Act, all proceedings in respect of a juvenile pending inany court in any area on the date on which the Juvenile Act comesinto force in that area shall be continued in that court as if theJuvenile Act had not been passed and if the court finds that theCjuvenile has committed an offence, it shall record such finding andinstead of passing any sentence in respect of the juvenile forwardthe juvenile to the Board which shall pass orders in respect ofthat juvenile in accordance with the provisions of the Juvenile Actas if it had been satisfied on inquiry under the Juvenile Act that thejuvenile has committed the offence. The Explanation to SectionD20makes it clear that in all pending cases, which would includenot only trials but even subsequent proceedings by way of revisionor appeal, the determination of juvenility of a juvenile would be interms of clause (l) of Section2, even if the juvenile ceased to be ajuvenile on or before 1-4-2001, when the Juvenile Act came intoEforce, and the provisions of the Juvenile Act would apply as if thesaid provision had been in force for all purposes and for all materialtimes when the alleged offence was committed.”

25. It is thus well settled that in terms of Section 20of the 2000Act, in all cases where the accused was above 16 years but below 18Fyears of age on the date of occurrence, the proceedings pending in theCourt would continue and be taken to the logical end subject to anexception that upon finding the juvenile to be guilty, the Court would notpass an order of sentence against him but the juvenile would be referredto the Board for appropriate orders under the 2000 Act.

G26. Thus, in view of the aforesaid discussion, we now proceed toconsider the matter further keeping in view the 2000 Act.

27. Section 7A of the 2000 Act reads as under:

“7A. Procedure to be followed when claim of juvenility israised before any Court- H

(1) Whenever a claim of juvenility is raised before any courtor a court is of the opinion that an accused person was ajuvenile on the date of commission of the offence, the courtshall 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 ora child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before anyCourt and it shall be recognised at any stage, even afterfinal disposal of the case, and such claim shall be determinedin terms of the provisions contained in this Act and the rulesmade thereunder, even if the juvenile has ceased to be so onor before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date ofcommission of the offence under sub-section (1), it shallforward the juvenile to the Board for passing appropriateorders and the sentence, if any, passed by a court shall bedeemed to have no effect.”

28. From a reading of Section 7A what becomes very obvious isthat whenever a claim of juvenility is raised, an inquiry has to be madeand such inquiry would take place by receiving evidence which would benecessary but not an affidavit so as to determine the age of such person.

29. Reference is also required to be made to Chapter II of theJuvenile Justice (Care and Protection of Children) Rules, 2007 (for short“the 2007 Rules”), more particularly to Rule 3(1) and Principles II, IV,XI, XII, XIII & XIV enumerated in Rule 3(2). The said provisions andprinciples are extracted herein below- “3. Fundamental principles to be followed in administrationof these rules.—

(1) The State Government, the Juvenile Justice Board, the ChildWelfare Committee or other competent authorities or agencies,as the case may be, while

(2) The following principles shall, inter alia, be fundamentalto the application, interpretation and implementation of theAct and the rules made hereunder:

x x x x x

AB

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DE

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II. Principle of dignity and worth

(a) Treatment that is consistent with the Child’s sense of dignityand worth is a fundamental principle of juvenile justice. Thisprinciple reflects the fundamental human right enshrined inArticle I of the Universal Declaration of Human Rights thatall human beings are born free and equal in dignity and rights.Respect of dignity includes not being humiliated, personalidentity boundaries and space being respected, not beinglabeled and stigmatized, being offered information andchoices and not being blamed for their acts.

(b) The juvenile’s or Child’s right to dignity and worth has tobe respected and protected throughout the entire process ofdealing with the child from the first contact with lawenforcement agencies to the implementing of all measures fordealing with the child.

III. Principle of Right to be heard

Every child’s right to express his views freely in all mattersaffecting his interest shall be fully respected through everystage in the process of juvenile justice. Children’s right to beheard shall include creation of developmentally appropriatetools and processes of interacting with the child, promotingChildren’s active involvement in decisions regarding their ownlives and providing opportunities for discussion and debate.

IV. Principle of Best Interest

(a) In all decisions taken within the context of administrationof juvenile justice, the principle of best interest of the juvenileor the juvenile in conflict with law or child shall be the primaryconsideration.

(b) The principle of best interest of the juvenile or juvenilein conflict with law or child shall mean for instance that thetraditional objectives of criminal justice, retribution andrepression, must give way to rehabilitative and restorativeobjectives of juvenile justice.

(c) This principle seeks to ensure physical, emotional,intellectual, social and moral development of a juvenile in conflict with law or child so as to ensure the safety, well beingand permanence for each child and thus enable each child tosurvive and reach his or her full potential.

x x x x x

XI. Principle of right to privacy and confidentiality The juvenile’s or Child’s right to privacy and confidentialityshall be protected by all means and through all the stages ofthe proceedings ad care and protection processes.

XII. Principle of last resort

Institutionalization of a child or juvenile in conflict with lawshall be a step of the last resort after reasonable inquiry andthat too for the minimum possible duration.

XIII. Principle of repatriation and restoration (a) Every juvenile or child in conflict with law has the rightto be re-united with his family and restored back to the samesocio-economic cultural status that such juvenile or childenjoyed before coming within the purview of the Act orbecoming vulnerable to any form of neglect, abuse orexploitation.

(b) Any juvenile or child, who has lost contact with his family,shall be eligible for protection under the Act and shall berepatriated and restored, at the earliest, to his family, unlesssuch repatriation and restoration is likely to be against thebest interest of the juvenile or the child.

XIV. Principle of Fresh Start

(a) The principle of fresh start promotes new beginning forthe child or juvenile in conflict with law by ensuring erasureof his part records.

(b) The State shall seek to promote measures for dealing withchildren alleged or recognized as having impinged the penallaw, without resorting to juridical proceedings.”

b. It is submitted that Section 51 of the Act provides that thereport of a probation officer or a social worker shall beconfidential. It is further submitted that Rule 18 provides for A

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Aa procedure to be followed in respect of violation of Section21.”

30. Besides the International Convention and the provisions of the2000 Act resply, it may be noted that the Constitutional guarantee forthe protection of the child is enshrined in Article 39 of the Constitution.BArticle39reads as under:- “39. Certain principles of policy to be followed by the State- (e) that the health and strength of workers, men and women,and the tender age of children are not abused and thatcitizens are not forced by economic necessity to enterCavocations unsuited to their age or strength; (f) that children are given opportunities and facilities todevelop in a healthy manner and in conditions of freedomand dignity and that childhood and youth are protectedagainst exploitation and against moral and materialDabandonment.”

31. The procedure to be followed for the determination of age isprovided under Rule 12(3)(b) of the 2007 Rules, which reads as:

“12. Procedure to be followed in determination of age.—(3)In every case concerning a child or juvenile in conflict withElaw, the age determination inquiry shall be conducted by thecourt or the Board or, as the case may be, the Committee byseeking evidence by obtaining—

(a) (i) the matriculation or equivalent certificates, ifavailable; and in the absence whereof;F

(ii) the date of birth certificate from the school (other thana play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or amunicipal authority or a panchayat; G

(b) and only in the absence of either (i), (ii) or (iii) ofclause (a) above, the medical opinion will be sought froma duly constituted Medical Board, which will declare theage of the juvenile or child. In case exact assessment ofthe age cannot be done, the Court or the Board or, as theHcase may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to thechild or juvenile by considering his/her age on lower sidewithin the margin of one year.

and, while passing orders in such case shall, after taking intoconsideration such evidence as may be available, or themedical opinion, as the case may be, record a finding in respectof his age and either of the evidence specified in any of theclauses (a)(i), (ii), (iii) or in the absence whereof, clause (b)shall be the conclusive proof of the age as regards such childor the juvenile in conflict with law.”

32. Sub-clause (3) of the aforesaid Rule clearly mandates thatwhile conducting an inquiry about the juvenility of an accused, the JuvenileJustice Board would seek evidence by obtaining the matriculation orequivalent certificates and in the absence whereof the date of birthcertificate from the school first attended and in absence whereof thebirth certificate given by a corporation or a Municipal authority or aPanchayat. It is made clear by sub-clause (b) that only in the absenceof the aforesaid three documents, medical information would be soughtfrom a duly constituted Medical Board which will declare the age of thejuvenile or child. Thus, it is only in the absence of the aforesaid documentsthat the Juvenile Justice Board could have asked for medical information/ossification test.

33. The2000Actstandsrepealedbythe2015Act.TheprocedurefordeterminingtheageisnowpartofSection94ofthe 2015Actwhich was earlier provided under the abovementioned Rule 12 of theRules.

FamilyRegister

34. The Family Register Rules prescribes preparation of a FamilyRegister in the State of Uttar Pradesh which contains family-wise namesand particulars of all persons ordinarily residing in the village pertainingto the Gaon Sabha. Such Rules have been framed under Section 110 ofthe U.P. Panchayat Raj Act, 1947. Such Rules read as under:

“1. (1) These Rules may be called the U.P. Panchayat Raj(Maintenance of Family Registers) Rules, 1970.

2. Form and preparation of family register.—A family registerin form A shall be prepared containing family-wise the names AB

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and particulars of all persons ordinarily residing in the villagepertaining to the Gaon Sabha. Ordinarily one page shall beallotted to each family in the register. There shall be a separatesection in the register for families belonging to the ScheduledCastes. The register shall be prepared in Hindi in Devanagriscript.

A

B

3. General conditions for registration in the register.—Everyperson who has been ordinarily resident within the area ofthe Gaon Sabha shall be entitled to be registered in the familyregister.

Explanation.—A person shall be deemed to be ordinarilyresident in a village if he has been ordinarily residing in suchvillage or is in possession of a dwelling house therein readyfor occupation.

C

4. Quarterly entries in the family register.—At the beginningof each quarter commencing from April in each year, theDSecretary of a Gaon Sabha shall make necessary changes inthe family register consequent upon births and deaths, if anyoccurring in the previous quarter in each family. Such changesshall be laid before the next meeting of the Gaon Panchayatfor information.

E

5. Correction of any existing entry.—The Assistant DevelopmentOfficer (Panchayat) may on an application made to him inthis behalf order the correction of any existing entry in thefamily register and the Secretary of the Gaon Sabha shallthen correct the Register accordingly.

F

6. Inclusion of names in the Register.—(1) Any person whosename is not included in the family register may apply to theAssistant Development Officer (Panchayat) for the inclusionof his name therein.

(2) The Assistant Development Officer (Panchayat) shall, ifGsatisfied, after such enquiry as he thinks fit that the applicantis entitled to be registered in the Register, direct that the nameof the applicant be included therein and the Secretary of theGaon Sabha shall include the name accordingly.

6-A. Any person aggrieved by an order made under Rule 5 orHRule 6 may, within 30 days from the date of such order VINOD KATARA v. STATE OF UTTAR PRADESH[J. B. PARDIWALA, J.]

prefer and appeal to the Sub-Divisional Officer whose decisionshall be final.

7. Custody and preservation of the register.—(1) The Secretaryof the Gaon Sabha shall be responsible for the safe custodyof the family register.

(2) Every person shall have a right to inspect the Registerand to get attested copy of any entry or extract therefrom insuch manner and on payment of such fees, if any, as may bespecified in Rule 73 of the U.P. Panchayat Raj Rules.

FORM A

(See Rule 2)

***

Note.—In the remarks column the number and date of theorder, if any, by which any name is added or struck off shouldbe given along with the signature of the person making theentry.”

35. A perusal of the above Rules indicate that one page is allottedto each family and that any change in the family consequent upon thebirths and deaths is required to be incorporated on such page. The changesare also required to be laid before the next meeting of the Gram Panchayat.Thus, it is evident that such Rules are statutorily framed in pursuance ofan Act. The entries in the register are required to be made by the officialsof the Gram Panchayat as part of their official duty.

36. This Court in the case of Manoj v. State of Haryana, reportedin (2022) 6 SCC 187, observed in regard to the Family Register referredto above as under:- “39. We are unable to approve the broad view taken by theHigh Court in some of the cases that family register is notrelevant to determine age of the family members. It is a questionof fact as to how much evidentiary value is to be attached tothe family register, but to say that it is entirely not relevantwould not be the correct enunciation of law. The register isbeing maintained in accordance with the rulesframedunderastatute.Theentriesmadeinthe regularcourseoftheaffairsofthePanchayatwouldthus berelevantbuttheextentof A

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suchreliancewould be inviewofthepeculiarfactsandcircumstancesofeachcase.”

(Emphasis supplied)

37. In Abuzar Hossain (supra), this Court held as under:-

“30. As a matter of fact, prior to the decisions of this Court inHari Ram [(2009) 13 SCC 211 : (2010) 1 SCC (Cri) 987]and Akbar Sheikh [(2009) 7 SCC 415 : (2009) 3 SCC (Cri)431], a three-Judge Bench of this Court speaking throughone of us (R.M. Lodha, J.) in Pawan [(2009) 15 SCC 259 :(2010) 2 SCC (Cri) 522] had considered the question relatingto admissibility of claim of juvenility for the first time in thisCourt with reference to Section 7-A. The contention ofjuvenility was raised for the first time before this Court onbehalf of the two appellants, namely, A-1 and A-2. Theargument on their behalf before this Court was that they were“juvenile” within the meaning of the 2000 Act on the date ofincident and the trial held against them under the Code wasillegal. With regard to A-1, his school leaving certificate wasrelied on while as regards A- 2, reliance was placed on hisstatement recorded under Section 313 and the school leavingcertificate. Dealing with the contention of juvenility, thisCourt stated that the claim of juvenility could be raised atany stage, even after final disposal of the case. The Courtthen framed the question in para 41 of the Report as towhether an inquiry should be made or report be called forfrom the trial court invariably where juvenility is claimed forthe first time before this Court.

31. It was held in Pawan, (2009) 15 SCC 259 that where thematerials placed before this Court by the accused, prima facie,suggested that he was a “juvenile” as defined in the 2000 Acton the date of incident, it was necessary to call for the reportor an inquiry to be made for determination of the age on thedate of incident. However, where a plea of juvenility is foundunscrupulous or the materials lack credibility or do not inspireconfidence and even prima facie satisfaction of the court isnot made out, further exercise in this regard may not berequired. It was also stated that if the plea of juvenility wasnot raised before the trial court or the High Court and is raised for the first time before this Court, the judicialconscience of the court must be satisfied by placing adequatematerial that the accused had not attained the age of 18 yearson the date of commission of the offence. In the absence ofadequate material, any further inquiry into juvenility wouldnot be required.

32. Having regard to the general guidelines highlighted inpara 41 of Pawan case [(2009) 15 SCC 259 : (2010) 2 SCC(Cri) 522] with regard to the approach of this Court wherejuvenility is claimed for the first time, the Court then consideredthe documents relied upon by A-1 and A-2 in support of theclaim of juvenility on the date of incident. In respect of thetwo documents relied upon by A-2, namely, statement underSection 313 of the Code and the school leaving certificate,this Court observed that the statement recorded under Section313 was a tentative observation based on physical appearancewhich was hardly determinative of age and insofar as schoolleaving certificate was concerned, it did not inspire anyconfidence as it was issued after A-2 had already beenconvicted and the primary evidence like entry from the birthregister had not been produced. As regards school leavingcertificate relied upon by A-1, this Court found that the samehad been procured after his conviction and no entry from thebirth register had been produced. The Court was, thus, notprima facie impressed or satisfied by the material placed onbehalf of A-1 and A-2. Those documents were not foundsatisfactory and adequate to call for any report from the Boardor the trial court about the age of A-1 and A-2.”

In Para 39, the Court summarizes the legal position as under:-

In Para 39, the Court summarizes the legal position as under:- “39.1. A claim of juvenility may be raised at any stage evenafter the final disposal of the case. It may be raised for thefirst time before this Court as well after the final disposal ofthe case. The delay in raising the claim of juvenility cannotbe a ground for rejection of such claim. The claim of juvenilitycan be raised in appeal even if not pressed before the trialcourt and can be raised for the first time before this Courtthough not pressed before the trial court and in the appealcourt.

A

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39.2. For making a claim with regard to juvenility afterconviction, the claimant must produce some material whichmay prima facie satisfy the court that an inquiry into the claimof juvenility is necessary. Initial burden has to be dischargedby the person who claims juvenility.

A

B39.3. As to what materials would prima facie satisfy the courtand/or are sufficient for discharging the initial burden cannotbe catalogued nor can it be laid down as to what weightshould be given to a specific piece of evidence which may besufficient to raise presumption of juvenility but the documentsreferred to in Rules 12(3)(a)(i) to (iii) shall definitely beCsufficient for prima facie satisfaction of the court about theage of the delinquent necessitating further enquiry under Rule12. The statement recorded under Section 313 of the Code istoo tentative and may not by itself be sufficient ordinarily tojustify or reject the claim of juvenility. The credibility and/orDacceptability of the documents like the school leavingcertificate or the voters’ list, etc. obtained after convictionwould depend on the facts and circumstances of each caseand no hard-and- fast rule can be prescribed that they mustbe prima facie accepted or rejected. In Akbar Sheikh [(2009)7 SCC 415 : (2009) 3 SCC (Cri) 431] and Pawan [(2009) 15ESCC 259 : (2010) 2 SCC (Cri) 522] these documents were notfound prima facie credible while in Jitendra Singh [(2010)13 SCC 523 : (2011) 1 SCC (Cri) 857] the documents viz.school leaving certificate, marksheet and the medical reportwere treated sufficient for directing an inquiry and verificationFof the appellant’s age. If such documents prima facie inspireconfidence of the court, the court may act upon suchdocuments for the purposes of Section 7-A and order an enquiryfor determination of the age of the delinquent.

B

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39.4. An affidavit of the claimant or any of the parents or asibling or a relative in support of the claim of juvenility raisedfor the first time in appeal or revision or before this Courtduring the pendency of the matter or after disposal of thecase shall not be sufficient justifying an enquiry to determinethe age of such person unless the circumstances of the caseare so glaring that satisfy the judicial conscience of the court G

H

to order an enquiry into determination of the age of thedelinquent.

39.5. The court where the plea of juvenility is raised for thefirst time should always be guided by the objectives of the2000 Act and be alive to the position that the beneficent andsalutary provisions contained in the 2000 Act are not defeatedby the hypertechnical approach and the persons who areentitled to get benefits of the 2000 Act get such benefits. Thecourts should not be unnecessarily influenced by any generalimpression that in schools the parents/guardians understatethe age of their wards by one or two years for future benefitsor that age determination by medical examination is not veryprecise. The matter should be considered prima facie on thetouchstone of preponderance of probability.

39.6. Claim of juvenility lacking in credibility or frivolousclaim of juvenility or patently absurd or inherently improbableclaim of juvenility must be rejected by the court at thethreshold whenever raised.”

38. Justice T.S. Thakur (as His Lordship then was), by his separatebut concurring judgment, observed as under:-

“43.2. The second factor which must ever remain present inthe mind of the Court is that the claim of juvenility may attimes be made even in cases where the accused does nothave any evidence showing his date of birth by reference toany public document like the Register of Births and Deathsmaintained by the municipal authorities, panchayats orhospitals nor any certificate from any school, as the accusedwas never admitted to any school. Even if admitted to a schoolno record regarding such admission may at times be availablefor production in the court. Again, there may be cases in whichthe accused may not be in a position to provide a birthcertificate from the corporation, the municipality or thepanchayat, for we know that the registration of births anddeaths may not be maintained and if maintained may not beregular and accurate, and at times truthful.

44. Rule 12(3) of the Rules makes only three certificatesrelevant. These are enumerated in sub-rules 3(a)(i) to (iii) ofthe Rule which reads as under:

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“(3)(a)(i) the matriculation or equivalent certificates, ifavailable; and in the absence whereof;

(ii) the date of birth certificate from the school (other thana play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or amunicipal authority or a panchayat; Non-production of the above certificates or any one of themis not, however, fatal to the claim of juvenility, for sub-rule(3)(b) to Rule 12 makes a provision for determination of thequestion on the basis of the medical examination of the accusedin the “absence” of the certificates.

45. Rule 12(3)(b) runs as under:

“12.(3)(b) and only in the absence of either (i), (ii) or (iii) ofclause (a) above, the medical opinion will be sought from aduly constituted Medical Board, which will declare the age ofthe juvenile or child. In case exact assessment of the agecannot be done, the court or the Board or, as the case maybe, the Committee, for the reasons to be recorded by them,may, if considered necessary, give benefit to the child orjuvenile by considering his/her age on lower side within themargin of one year,”

The expression “absence” appearing in the above provisionis not defined under the Act or the Rules. The word shall,therefore, be given its literal dictionary meaning which isprovided by Concise Oxford Dictionary as under:

“Absence.—Being away from a place or person; time ofbeing away; non-existence or lack of; inattention due tothought of other things.”

Black’s Law Dictionary also explains the meaning of“absence” as under:

“Absence.—(1) The state of being away from one’s usual placeof residence. (2) A failure to appear, or to be available andreachable, when expected. (3) Louisiana law. The state ofbeing an absent person.— Also termed (in sense 3) absentia.”

46. It is axiomatic that the use of the expression and the contextin which the same has been used strongly suggests that“absence” of the documents mentioned in Rule 12(3)(a)(i) to(iii) may be either because the same do not exist or the samecannot be produced by the person relying upon them. Merenon-production may not, therefore, disentitle the accused ofthe benefit of the Act nor can it tantamount to deliberatenon-production, giving rise to an adverse inference unlessthe court is in the peculiar facts and circumstances of a caseof the opinion that the non-production is deliberate orintended to either mislead the court or suppress the truth. It isin this class of cases that the court may have to exercise itspowers and discretion with a certain amount of insight intothe realities of life.

47. One of such realities is that illiteracy and crime have aclose nexus though one may not be directly proportional tothe other. Juvenile delinquency in this country as elsewherein the world, springs from poverty and unemployment, morethan it does out of other causes. A large number of thoseengaged in criminal activities, may never have had theopportunity to go to school. Studies conducted by the NationalCrime Records Bureau (NCRB), Ministry of Home Affairs,reveal that poor education and poor economic set up aregenerally the main attributes of juvenile delinquents. Resultof the 2011 study further show that out of 33,887 juvenilesarrested in 2011, 55.8% were either illiterate (6122) oreducated only till the primary level (12,803). Further, 56.7%of the total juveniles arrested fell into the lowest incomecategory. A similar study is conducted and published by B.N.Mishra in his book Juvenile Delinquency and Justice System,in which the author states as follows:

“One of the prominent features of a delinquent is pooreducational attainment. More than 63 per cent ofdelinquents are illiterate. Poverty is the main cause of theirilliteracy. Due to poor economic condition they werecompelled to enter into the labour market to supplementtheir family income. It is also felt that poor educationalattainment is not due to the lack of intelligence but may be AB

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due to lack of opportunity. Although free education isprovided to Scheduled Castes and Scheduled Tribes, eventhen, the delinquents had a very low level of expectationsand aspirations regarding their future which in turn is dueto lack of encouragement and unawareness of their parentsthat they play truant.” (emphasis supplied)

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What should then be the approach in such cases, is thequestion. Can the advantage of a beneficial legislation bedenied to such unfortunate and wayward delinquents? Canthe misfortune of the accused never going to a school befollowed or compounded by denial of the benefit that thelegislation provides in such emphatic terms, as to permit anenquiry even after the last Court has disposed of the appealand upheld his conviction? The answer has to be in thenegative.

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48. If one were to adopt a wooden approach, one could sayDnothing short of a certificate, whether from the school or amunicipal authority would satisfy the court’s conscience,before directing an enquiry. But, then directing an enquiry isnot the same thing as declaring the accused to be a juvenile.The standard of proof required is different for both. In theEformer, the court simply records a prima facie conclusion. Inthe latter, the court makes a declaration on evidence, that itscrutinises and accepts only if it is worthy of such acceptance.The approach at thestage of directing the enquiryhasofnecessityto bemoreliberal,lest,thereisavoidablemiscarriageofjustice.Suffice it to say that while affidavitsFmay not be generally acceptedasagoodenoughbasisfordirectinganenquiry,thattheyarenotsoacceptedisnotaruleoflawbutarule ofprudence.TheCourtwould,therefore,ineachcase weightherelevantfactors,insistuponfilingofbetter affidavitsiftheneedsoarises,andevendirect,anyGadditionalinformationconsideredrelevantincludingtheinformationregardingtheageoftheparents,theageof siblingsandthelike,tobefurnishedbeforeitdecidesona casetocasebasiswhetherornotanenquiryunderSection7-Aoughttobeconducted.Itwilleventually dependonhowthecourtevaluatessuch material for aprima facie conclusion that theHcourt may or may not direct an enquiry.” (Emphasis supplied)

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39. Thus, Section 7A(1) of the 2000 Act and the proviso theretoprovided that a claim of juvenility might be raised before any court andit shall be recognized at any stage, even after the final disposal of thecase, and such claim shall be determined in terms of the provisionscontained in the 2000 Act and the Rules made thereunder, even if thejuvenile has ceased to be so, on or before the date of commencement ofthe 2000 Act.

40. Sub-section (2) of Section 7A mandates that if the Court findsa person to be a juvenile on the date of the commission of offenceunder sub-section (1), it shall forward the juvenile to the Juvenile JusticeBoard for passing an appropriate order, and the sentence, if any, passedby a Court shall be deemed to have no effect.

41. Section 16 of the 2000 Act provides as hereunder:- “—16. Order that may not be passed against juvenile.

(1) Notwithstanding anything to the contrary contained in anyother law for the time being in force, no juvenile in conflictwith law shall be sentenced to death or imprisonment for anyterm which may extend to imprisonment for life, or committedto prison in default of payment of fine or in default offurnishing security:

Provided that where a juvenile who has attained the age ofsixteen years has committed an offence and the Board issatisfied that the offence committed is of so serious in natureor that his conduct and behaviour have been such that it wouldnot be in his interest or in the interest of other juvenile in aspecial home to send him to such special home and that noneof the other measures provided under this Act is suitable orsufficient, the Board may order the juvenile in conflict withlaw to be kept in such place of safety and in such manner asit thinks fit and shall report the case for the order of the StateGovernment.

(2) On receipt of a report from a Board under sub-section (1),the State Government may make such arrangement in respectof the juvenile as it deems proper and may order such juvenileto be kept under protective custody at such place and on suchconditions as it thinks fit:

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AProvided that the period of detention so ordered shallnot exceed in any case the maximum period provided underSection 15 of this Act.”

42. The maximum period of detention in respect of a juvenile isthree years as provided in Section 15(1)(g). The said Section providesBthat where the Juvenile Justice Board is, on inquiry, satisfied that thejuvenile has committed an offence, then notwithstanding anything to thecontrary contained in any other law for the time being in force, the JuvenileJustice Board may, if it thinks fit, make an order directing the juvenile tobe sent to a special home for a period of three years.

C43. In view of Section 7A of the 2000 Act referred to hereinabove,applicable to the writ applicant herein, the plea of juvenility could beraised in any court, at any stage even after the final disposal of theSpecial Leave Petition under Article 136 of the Constitution. In the caseof the writ applicant herein, his Special Leave Petition had also beendismissed by this Court. However, this Court is still obliged to considerDthe plea of juvenility taken by the writ applicant and grant him appropriaterelief. The fact that the 2000 Act has later been replaced by the 2015Act would make no difference.

44. In regard to the nature of the inquiry to be conducted by thecourt in determining the age under Section 7A of the 2000 Act and RuleE12, this Court in Ashwani Kumar Saxena v. State of Mahya Pradesh,AIR 2013 SC 553, has held as follows:-

“25. Section 7-A, obliges the court only to make an inquiry,not an investigation or a trial, an inquiry not under the Codeof Criminal Procedure, but under the JJ Act. The criminalFcourts, Juvenile Justice Board, committees, etc. we havenoticed, proceed as if they are conducting a trial, inquiry,enquiry or investigation as per the Code. The statute requiresthe court or the Board only to make an “inquiry” and in whatmanner that inquiry has to be conducted is provided in the JJGRules. Few of the expressions used in Section 7-A and Rule12 are of considerable importance and a reference to them isnecessary to understand the true scope and content of thoseprovisions. Section 7-A has used the expressions “court shallmake an inquiry”, “take such evidence as may be necessary”and “but not an affidavit”. The Court or the Board can acceptHas evidence something more than an affidavit i.e. the Court or the Board can accept documents, certificates, etc. asevidence, need not be oral evidence.

26. Rule 12 which has to be read along with Section 7-A hasalso used certain expressions which are also to be borne inmind. Rule 12(2) uses the expression “prima facie” and “onthe basis of physical appearance” or “documents, ifavailable”. Rule 12(3) uses the expression “by seekingevidence by obtaining”. These expressions in our viewre-emphasise the fact that what is contemplated in Section7-A and Rule 12 is only an inquiry. Further, the agedetermination inquiry has to be completed and age bedetermined within thirty days from the date of making theapplication; which is also an indication of the manner in whichthe inquiry has to be conducted and completed. The word“inquiry” has not been defined under the JJ Act, but Section2(y) of the JJ Act says that all words and expressions usedand not defined in the JJ Act but defined in the Code ofCriminal Procedure, 1973 (2 of 1974), shall have the meaningsrespectively assigned to them in that Code.

27. Let us now examine the meaning of the words “inquiry”,“enquiry”, “investigation” and “trial” as we see in the Codeof Criminal Procedure and their several meanings attributedto those expressions. “Inquiry” as defined in Section 2(g)CrPC reads as follows:

2. (g) ‘inquiry’ means every inquiry, other than a trial,conducted under this Code by a Magistrate or court;”

The word “enquiry” is not defined under the Code ofCriminal Procedure which is an act of asking forinformation and also consideration of some evidence, maybe documentary.

“Investigation” as defined in Section 2(h) CrPC reads asfollows:

2. (h) ‘investigation’ includes all the proceedings underthis Code for the collection of evidence conducted by apolice officer or by any person (other than a Magistrate)who is authorised by a Magistrate in this behalf;”

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The expression “trial” has not been defined in the Code ofCriminal Procedure but must be understood in the light ofthe expressions “inquiry” or “investigation” as containedin Sections 2(g) and 2(h) of the Code of Criminal Procedure.

28. The expression “trial” has been generally understood asthe examination by court of issues of fact and law in a casefor the purpose of rendering the judgment relating to someoffences committed. We find in very many cases that the court/the Juvenile Justice Board while determining the claim ofjuvenility forget that what they are expected to do is not toconduct an inquiry under Section 2(g) of the Code of CriminalProcedure, but an inquiry under the JJ Act, following theprocedure laid down under Rule 12 and not following theprocedure laid down under the Code.

29. The Code lays down the procedure to be followed in everyinvestigation, inquiry or trial for every offence, whether underthe Indian Penal Code or under other Penal laws. The Codemakes provisions for not only investigation, inquiry into ortrial for offences but also inquiries into certain specific matters.The procedure laid down for inquiring into the specific mattersunder the Code naturally cannot be applied in inquiring intoother matters like the claim of juvenility under Section 7Aread with Rule 12 of the 2007 Rules. In other words, the lawregarding the procedure to be followed in such inquiry mustbe found in the enactment conferring jurisdiction to holdinquiry.

30. Consequently, the procedure to be followed under the J.J.Act in conducting an inquiry is the procedure laid down inthat statute itself i.e. Rule 12 of the 2007 Rules.

We cannot import other procedures laid down in the Code ofCriminal Procedure or any other enactment while making aninquiry with regard to the juvenility of a person, when theclaim of juvenility is raised before the court exercising powersunder Section 7A of the Act. Many of the cases, we have comeacross, it is seen that the Criminal Courts are still having thehangover of the procedure of trial or inquiry under the Codeas if they are trying an offence under the Penal laws forgetting the fact that the specific procedure has been laid down inSection 7A read with Rule 12.

31. We also remind all Courts/J.J. Board and the Committeesfunctioning under the Act that a duty is cast on them to seekevidence by obtaining the certificate etc. mentioned in Rule12 (3) (a) (i) to (iii). The courts in such situations act as aparens patriae because they have a kind of guardianship overminors who from their legal disability stand in need ofprotection.

32. “Age determination inquiry” contemplated under Section7A of the Act r/w Rule 12 of the 2007 Rules enables the courtto seek evidence and, in that process, the court can obtainthe matriculation or equivalent certificates, if available. Onlyin the absence of any matriculation or equivalent certificates,the court need obtain the date of birth certificate from theschool first attended other than a play school. Only in theabsence of matriculation or equivalent certificate or the dateof birth certificate from the school first attended, the courtneed obtain the birth certificate given by a corporation or amunicipal authority or a panchayat (not an affidavit butcertificates or documents). The question of obtaining medicalopinion from a duly constituted Medical Board arises only ifthe above mentioned documents are unavailable. In case exactassessment of the age cannot be done, then the court, forreasons to be recorded, may, if considered necessary, give thebenefit to the child or juvenile by considering his or her ageon lower side within the margin of one year.

33. Once the court, following the above mentioned procedures,passes an order; that order shall be the conclusive proof ofthe age as regards such child or juvenile in conflict with law.It has been made clear in sub- section (5) or Rule 12 that nofurther inquiry shall be conducted by the court or the Boardafter examining and obtaining the certificate or any otherdocumentary proof after referring to sub-rule (3) of the Rule12. Further, Section 49 of the J.J. Act also draws apresumption of the age of the juvenility on its determination.

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Alegislations, like entry in service, retirement, promotion etc.There may be situations where the entry made in thematriculation or equivalent certificates, date of birthcertificate from the school first attended and even the birthcertificate given by a Corporation or a Municipal Authorityor a Panchayat may not be correct. But Court, J.J. Board or aBCommittee functioning under the J.J. Act is not expected toconduct such a roving enquiry and to go behind thosecertificates to examine the correctness of those documents,kept during the normal course of business. Only in cases wherethose documents or certificates are found to be fabricated orCmanipulated, the Court, the J.J. Board or the Committee needto go for medical report for age determination”.

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45. What is discernible from the dictum laid down in AshwaniKumar Saxena (supra) is that, in deciding whether an accused is juvenileor not, a hyper technical approach should not be adopted. WhileDappreciating the evidence adduced on behalf of the accused in supportof the plea that he is a juvenile, if two views are possible on the sameevidence, the Court should lean in favour of holding the accused to bejuvenile in borderline cases. The inquiry contemplated is not a rovinginquiry. The Court can accept as evidence something more than anaffidavit i.e. documents, certificates etc. as evidence in proof of age. AEmere opinion by a person as to the accused looking one or two yearsolder than the age claimed by him (as the opinion of the head master inthe present case) or the fact that the accused told his age to be morethan what he alleges in the case while being arrested by the police officerwould not hold much water. It is the documentary evidence placed on Frecord that plays a major role in determining the age of a juvenile inconflict of law. And, it is only in the cases where the documents orcertificates placed on record by the accused in support of his claim ofjuvenility are found to be fabricated or manipulated, that the Court, theJuvenile Justice Board or the Committee need to go for medical test forage determination.G

46. Clause (a) of Rule 12(3) of the 2007 Rules contains ahierarchical ordering, evident from the use of the language “in the absencewhereof”. This indicates that where a matriculation or equivalentcertificate is available, the documents adverted to in (ii) and (iii) cannotbe relied upon. The matriculation certificate, in other words, is givenH

precedence. It is in the absence of a matriculation certificate that thedate of birth certificate of the school first attended, can be relied upon. Itis in the absence of both the matriculation and the birth certificates ofthe first school attended that a birth certificate issued by the corporation,municipal authority or panchayat could be obtained.

47. In Shah Nawaz v. State of Uttar Pradesh, (2011) 13 SCC751, this Court, while examining the scope of Rule 12 of the 2007 Rules,has reiterated that medical opinion from the Medical Board should besought only when the matriculation certificate or equivalent certificateor the date of birth certificate from the school first attended or any birthcertificate issued by a corporation or a municipal authority or a panchayator municipality is not available. This Court had held that the entry relatedto the date of birth entered in the marksheet is a valid evidence fordetermining the age of the accused person so also the school leavingcertificate for determining the age of the appellant.

48. In the instant case, the accused has not produced anymatriculation certificate or equivalent certificate to prove his age. Whatis produced by him is only the Family Register issued under the U.P.Panchayat Raj Act, 1947. The document cannot be accepted as equivalentto matriculation certificate to prove the age of the accused. However,the evidentiary value of the Family Register will have to be looked into inthe course of the inquiry that we may order.

Determination of plea of juvenility at a belated stage

49. Ideally, there should not be any dispute as to the age of aperson if the birth is registered in accordance with law and date of birthis entered in the school records on the basis of genuine record of birth.However, in India, the factors like poverty, illiteracy, ignorance,indifference and inadequacy of the system often lead to there being nodocumentary proof of a person’s age. Therefore, in those cases wherethe plea of juvenility is raised at a belated stage, often certain medicaltests are resorted to forage determination in absence of the documentsenumerated in Section 94 of the Act 2015. The rule allowing plea ofjuvenility to be raised at a considerably belated stage has its rationale inthe contemporary child rights jurisprudence which requires thestakeholders to act in the best interest of the child.

50. In Court On Its Own Motion v. Dept. of Women and ChildDevelopment, reported in 2012 SCC OnLine Del 2774, the petitioners A

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Atherein highlighted that how several hundred children were languishingin the Tihar Jail because the police mentioned them as adults in thearrest memo.

51. The same is the story in the State of Uttar Pradesh whichled the High Court of Allahabad to pass the order in Writ Petition PublicBInterest Litigation referred to above in para 6.

52. Awareness about the rights of the child and correlated dutiesremain low among the functionaries of the juvenile justice system. Oncea child is caught in the web of adult criminal justice system, it is difficultfor the child to get out of it unscathed. The bitter truth is that even theClegal aid programmes are mired in systemic bottlenecks and often it isonly at a considerably belated stage of the proceeding that the personbecomes aware of the rights, including the right to be differently treatedon the ground of juvenility.

53. What needs to be kept in mind is the main object and purposeDof the Juvenile Justice Act. The focus of this legislation is on the juvenile’sreformation and rehabilitation so that he also may have an opportunity toenjoy as other children. In Pratap Singh (supra), this Court, elaboratingon the objects and purpose of the Juvenile Justice Act, made the followingobservations:- E“...The said Act is not only a beneficent legislation, but alsoa remedial one. TheActaims at grant of care, protection andrehabilitation of a juvenile vis-à-vis the adult criminals.Having regard to Rule 4 of the United Nations StandardMinimum Rules for the Administration of Juvenile Justice, itmust also be borne in mind that the moral and psychologicalFcomponents of criminal responsibility were also one of thefactors in defining a juvenile. The first objective, therefore,is the promotion of the well-being of the juvenile and thesecond objective to bring about the principle ofproportionality whereby and whereunder the proportionalityGof the reaction to the circumstances of both the offender andthe offence including the victim should be safeguarded...”

What is bone ossification test?

54. The famous American philosopher Mark Twain once said,“Age is an issue of Mind over matter. If you don’t mind, it doesn’tH

matter.” But the above is not the case in criminal jurisprudence when itcomes to age. Here, age matters because law is mindful to it.

55. The bone ossification test (hereinafter “ossification test”) is atest that determines age based on the “degree of fusion of bone” bytaking the x-ray of a few bones. In simple words, the ossification test orosteogenesis is the process of the bone formation based on the fusion ofjoints between the birth and age of twenty-five years in an individual.Bone age is an indicator of the skeletal and biological maturity of anindividual which assists in the determination of age. The most commonmethod used for the calculation of the bone age is radiography of thehand and wrist until the age of 18 years beyond which the medial age ofclavicle is used for bone age calculation till the age of 22 years as thehand and wrist bone radiographs cannot be computed beyond 18 yearsof age as the elongation of the bone is complete after adolescence.However, it must be noted that the ossification test varies slightly basedon individual characteristics, therefore the ossification test though isrelevant however it cannot be called solely conclusive.

56. The 2015 Act under Section 94(2)(iii) read with Rule 12(3) ofthe 2007 Rules provides the legislative sanction for the conduct ofossification test or other medical age determination test available in theabsence of other documentary proof of age i.e. matriculation certificateor birth certificate, which has to be given within 15 days from the date ofsuch order. The test is to be conducted by the Child Welfare Committee(CWC). The provision mentioned herein is the basis for determining theage of a child under the 2000 Act which even includes a child who is avictim of crime in addition to a child in conflict with the law.

57. In Vishnu v. State of Maharashtra, (2006) 1 SCC 283, thisCourt clarified that the ossification test by the medical officer is toassist the court which falls under the ambit of medical expert opinion i.e.,advisory in nature and not binding. However, such an opinion cannotoverride ocular or documentary evidence, which has been proved to betrue and admissible as they constitute “statement of facts”. This Court inVishnu (supra) placed reliance on Madan Gopal Kakkad v. NavalDubey, (1992) 3 SCC 204, to hold that a medical witness is not a witnessof fact therefore the opinion rendered by such a medical expert is merelyadvisory until accepted by the Court, however, once accepted, theybecome the opinion of the Court.

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AMarginoferrorprinciple

58. The bone ossification test is not an exact science that canprovide us with the exact age of the person. As discussed above, theindividual characteristics such as the growth rate of bones and skeletalstructures can affect the accuracy of this method. This Court hasBobserved in Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681:(2010) 2 SCC (Cri) 1194, and Jyoti Prakash Rai v. State of Bihar,(2008) 15 SCC 223: (2009) 3 SCC (Cri) 796, that the ossification test isnot conclusive for age determination because it does not reveal the exactage of the person, but the radiological examination leaves a margin oftwo years on either side of the age range as prescribed by the testCirrespective of whether the ossification test of multiple joints is conducted.The courts in India have accepted the fact that after the age of thirtyyears the ossification test cannot be relied upon for age determination. Itis trite that the standard of proof for the determination of age is thedegree of probability and not proof beyond reasonable doubt.D

59. In the aforesaid context, we may also refer to a decision ofthis Court in the case of Mukarrab v. State of Uttar Pradesh, reportedin (2017) 2 SCC 210, wherein this Court has observed in para 27 asunder:-

E“… Following Babloo Pasi v. State of Jharkhand, (2008) 13SCC 133 and State of M.P. v. Anoop Singh, (2015) 7 SCC773, we hold that ossification test cannot be regarded asconclusive when it comes to ascertaining the age of a person.More so, the appellants herein have certainly crossed the ageof thirty years which is an important factor to be taken intoFaccount as age cannot be determined with precision. …”

60. In Arnit Das v. State of Bihar, (2000) 5 SCC 488, it wasobserved that the Court should not take a hyper-technical approach whileappreciating evidence for determination of age of the accused. If twoviews are possible, the Court should lean in favour of holding the accusedGto be a juvenile in border line cases. This approach was further reiteratedby this Court in Rajendra Chandra v. State of Chhattisgarh, (2002) 2SCC 287, in which it laid down that the standard of proof of agedetermination is the degree of probability and not proof beyond reasonabledoubt.

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61. In Rishipal Singh Solanki v. State of Uttar Pradesh, (2021)SCC OnLine SC 1079, this Court observed explicitly that Section 94 ofthe 2015 Act does not give precedence to the matriculation and othercertificates, to determine the age of person, since the said section onlydeals with the matter of procedure. This Court held that lex non cogitad impossibilia (law does not demand the impossible) and when theossification test cannot yield trustworthy and reliable results, such testcannot be made a basis to determine the age of the person and otheravailable certificates may be taken into consideration.

62. Similarly, in the case of Ram Vijay Singh v. State of U.P.,(2021) SCC Online SC 142, this Court, while negativing the contentioncanvassed on behalf of the appellant convict therein that the procedureas contained in Rule 12(3)(b) of the 2007 Rules now being part of Section94 of the 2015 Act and once the statute has provided the ossification testas the basis for determining juvenility, the findings of such ossificationtest cannot be ignored, held in paras 15 and 16 resply as under:- “15. We find that the procedure prescribed in Rule 12 is notmaterially different than the provisions of Section 94 of theAct to determine the age of the person. There are minorvariations as the Rule 12(3)(a)(i) and (ii) have been clubbedtogether with slight change in the language. Section 94 ofthe Act does not contain the provisions regarding benefit ofmargin of age to be given to the child or juvenile as wasprovided in Rule 12(3)(b) of the Rules. The importance ofossification test has not undergone change with the enactmentof Section94of the Act. The reliability of the ossification testremains vulnerable as was under Rule 12 of the Rules.

16. As per the Scheme of the Act, when it is obvious to theCommittee or the Board, based on the appearance of theperson, that the said person is a child, the Board or Committeeshall record observations stating the age of the Child as nearlyas may be without waiting for further confirmation of the age.Therefore, the first attempt to determine the age is by assessingthe physical appearance of the person when brought beforethe Board or the Committee. It is only in case of doubt, theprocess of age determination by seeking evidence becomesnecessary. At that stage, when a person is around 18 years A

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Aof age, the ossification test can be said to be relevant fordetermining the approximate age of a person in conflict withlaw. However, when the person is around 40-55 years of age,the structure of bones cannot be helpful in determining theage. This Court in Arjun PanditraoKhotkar v. KailashKushanrao GorantyalandOrs. held, in the context ofBcertificate required under Section 65B of the Evidence Act,1872, that as per the Latin maxim, lex non cogit adimpossibilia, law does not demand the impossible. Thus, whenthe ossification test cannot yield trustworthy and reliableresults, such test cannot be made a basis to determine the ageCof the person concerned on the date of incident. Therefore,in the absence of any reliable trustworthy medical evidenceto find out age of the appellant, the ossification test conductedin year 2020 when the appellant was 55 years of age cannotbe conclusive to declare him as a juvenile on the date of theincident.”D

63. We are conscious of the fact that in the case on hand theconvict was subjected to medical examination after being referred to theMedical Board. However, the report on record does not inspire muchconfidence. Over and above the same, the decision in the case of RamVijay Singh (supra) makes it very clear that in the absence of a reliableEand trustworthy medical evidence to find out the age of the appellantherein, the ossification test conducted in the year 2021 when the appellantwas above 50 years of age cannot be conclusive to declare him as ajuvenile on the date of the incident. This Court observed that when aperson is around 18 years of age, the ossification test can be said to beFrelevant for determining the approximate age of a person in conflict withlaw. However, when the person is around 40-55 years of age, the structureof bones cannot be helpful in determining the age. In such circumstances,it will be a matter of debate as to what extent the new ossification testreport that may come on record can be relied upon and to what extentthe same would be helpful to the appellant herein.G

64. Despite all the odds against the writ applicant, we would stilllike to look into the matter in the larger interest of justice. It will be infitness of things if the writ applicant convict is once again subjected tothe ossification test at the Civil Hospital, Allahabad or any other latestmedical age determination test and such test shall be carried out by aH

team of three doctors, one of whom should be the head of theDepartment of Radiology.

65. In view of the aforesaid, we issue the following directions:

(i) We direct the Sessions Court, Agra to examine the claim ofthe writ applicant to juvenility in regard with law within onemonth from the date of communication of this order;

(ii) The concerned Sessions Court shall also examine theauthenticity and genuineness of the Family Register soughtto be relied upon by writ applicant convict considering thatthe document does not appear to be contemporaneous. Thisdocument assumes importance, more particularly in the lightof the fact that the ossification test report may not be absolutelyhelpful in determining the exact age of the writ applicant onthe date of incident. If the Family Register on record isultimately found to be authentic and genuine, then we maynot have to fall upon the ossification test report. In suchcircumstances, the Presiding Officer concerned shall payadequate attention towards this document and try to ascertainthe authenticity and genuineness of the same. If need be, thestatements of the persons concerned i.e. from the concernedgovernment department may also be recorded;

(iii) The Sessions Court shall ensure that the writ applicant convictis medically examined by taking an ossification test or anyother modern recognized method of age determination;

(iv) The Sessions Court concerned shall submit its report as regardsthe aforesaid to this Court within one month from the date ofcommunication of this order;

(v) The Registry is directed to forward one copy of this order toSessions Court, Agra;

(vi) We request the learned counsel appearing for the State totake appropriate steps to facilitate the Sessions Court tocomplete the enquiry.

66. Notify this matter after a period of four weeks along with thereport that may be received from the Sessions Court, Agra. The final A

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(Assisted by : Shubhanshu Das, LCRA)

Directions issued.

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