Delhi High Court
State vs Jagtar & Ors. on 1 August, 2014
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 1st August, 2014
+ DEATH SENTENCE REFERENCE No.5/2010
STATE ..... Petitioner
Through Ms.Swati Goswami, Adv. for
Mr.Dayan Krishnan, ASC with
Inspector Rajveer Singh, PS S.P.
Badli
Versus
JAGTAR & ORS. ..... Respondents
Through Mr. Sidharth Aggarwal, Adv. with
Adit S. Pujari, Adv. & Mr.Rahul
Kumar, Adv.
Crl.A. No.979/2008
AMAR BHADUR THAPAS S/O GYAN
BHADUR THAPA .... Petitioner
Through Mr.Sumer K. Sethi, Adv.
Versus
STATE ..... Respondents
Through Ms.Ritu Gauba, APP
S.I. Amit Rathee, PS Model Town.
WITH
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 1
+ Crl.A. No.1087/2010
RAVINDER ..... Petitioner
Through Mr.Sumer K. Sethi, Adv.
Versus
STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through Ms.Ritu Gauba, APP
AND
+ Crl.A. No.1301/2010
NOOR JAHAN ALIAS HASEENA & ORS. ..... Petitioner
Through Mr.Vivek Sood & Mr.Vishwanath
Pratap Singh, Advs.
Versus
STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through Ms.Ritu Gauba, APP
Insp. Rajveer Singh, PS S.P. Badli
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
GITA MITTAL, J
1. A question stands raised before this court that is, if a plea of juvenility of the
convict, raised for the first time at the appellate stage in the High Court, is
accepted, what happens to his appeal against the conviction? Consequently,
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 2
another issue follows. Does the Appellate Court have the power to order the
removal of the disqualification attaching to the conviction? In other words, what is
the fate of the conviction and the order on the sentence which stands imposed upon
such a person?
2. This plea was raised by one or more of the appellants in the above appeals.
We have therefore heard learned counsels in the appeals on these two issues.
I. Statutory Framework
3. So far as the issues at hand are concerned, it would be useful to first and
foremost set out, in extenso, the provisions of Section 2(k), 2l, 6, 7, 19, 20 of the
Juvenile Justice (Care & Protection of Children) Act, 2000 (hereinafter the „JJ
Act‟) as well as Rule 3(IX) and (XIV) of Chapter II of the Juvenile Justice (Care &
Protection of Children) Rules of 2007 (hereinafter referred to as the „Rules‟). The
same read as hereunder :-
"2(k) "juvenile" or "child" means a person who has not completed
eighteenth year of age;
2(l) "juvenile in conflict with law" means a juvenile who is alleged to have
committed an offence;
6. Powers of Juvenile Justice Board.- (1) Where a Board has been
constituted for any district or a group of districts, such Board shall,
notwithstanding anything contained in any other law for the time being in
force but save as otherwise expressly provided in this Act, have power to
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 3
deal exclusively with all proceedings under this Act relating to juvenile in
conflict with law. (2) The powers conferred on the Board by or under this
Act may also be exercised by the High Court and the Court of Session, when
the proceeding comes before them in appeal, revision or otherwise.
7. Procedure to be followed by a Magistrate not empowered under the
Act.- Procedure to be followed by a Magistrate not empowered under the
Act.-(1) When any Magistrate not empowered to exercise the powers of a
Board under this Act is of the opinion that a person brought before him
under any of the provisions of this Act (other than for the purpose of giving
evidence), is a juvenile or the child, he shall without any delay record such
opinion and forward the juvenile or the child and the record of the
proceeding to the competent authority having jurisdiction over the
proceeding.
(2) The competent authority to which the proceeding is forwarded under
sub-section (1) shall hold the inquiry as if the juvenile or the child had
originally been brought before it.
7A. Procedure to be followed when claim of juvenility is raised before
any court. - (1) Whenever a claim of juvenility is raised before any court or
a court is of the opinion that an accused person was a juvenile on the date of
commission of the offence, the court shall make an inquiry, take such
evidence as may be necessary (but not an affidavit) so as to determine the
age of such person, and shall record a finding whether the person is a
juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court
and it shall be recognized at any stage, even after final disposal of the
case, and such claim shall be determined in terms of the provisions
contained in this Act and the rules made thereunder, even if the juvenile
has ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to be juvenile on the date of
commission of the offence under sub-section (1), it shall forward the
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 4
juvenile to the Board for passing appropriate orders and the sentence, if any,
passed by the court shall be deemed to have no effect."
4. How the Juvenile Justice Board is to proceed against the juvenile and what
are the possible orders which may be passed on finding him guilty of commission
of offences is prescribed under Section 15 of the Statute which reads as follows:-
"15. Order that may be passed regarding juvenile.- (1) Where a Board is
satisfied on inquiry that a juvenile has committed an offence, then
notwithstanding anything to the contrary contained in any other law for the
time being in force, the Board may, if it thinks so fit,-
(a) allow the juvenile to go home after advice or admonition following
appropriate inquiry against and counselling to the parent or the guardian and
the juvenile;
(b) direct the juvenile to participate in group counselling and similar
activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he
is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and
placed under the care of any parent, guardian or other fit person, on such
parent, guardian or other fit person executing a bond, with or without surety,
as the Board may require, for the good behaviour and well-being of the
juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed
under the care of any fit institution for the good behaviour and well-being of
the juvenile for any period not exceeding three years;
(g) make an order directing the juvenile to be sent to a special home,- i.
in the case of juvenile, over seventeen years but less than eighteen years
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 5
of age for a period of not less than two years; ii. in case of any other
juvenile for the period until he ceases to be a juvenile:
Provided that the Board may, if it is satisfied that having regard to the
nature of the offence and the circumstances of the case it is expedient so to
do, for reasons to be recorded, reduce the period of stay to such period as it
thinks fit.
2. The Board shall obtain the social investigation report on juvenile either
through a probation officer or a recognised voluntary organisation or
otherwise, and shall take into consideration the findings of such report
before passing an order.
3. Where an order under clause (d), clause (e) or clause (f) of sub-section (1)
is made, the Board may, if it is of opinion that in the interests of the juvenile
and of the public, it is expedient so to do, in addition make an order that
the juvenile in conflict with law shall remain under the supervision of a
probation officer named in the order during such period, not exceeding
three years as may be specified therein, and may in such supervision order
impose such conditions as it deems necessary for the due supervision of the
juvenile in conflict with law :
Provided that if at any time afterwards it appears to the Board on
receiving a report from the probation officer or otherwise, that the
juvenile in conflict with law has not been of good behaviour during the
period of supervision or that the fit institution under whose care the
juvenile was placed is no longer able or willing to ensure the good behaviour
and well-being of the juvenile it may, after making such inquiry as it
deems fit, order the juvenile in conflict with law to be sent to a special
home.
4. The Board shall while making a supervision order under sub-section (3),
explain to the juvenile and the parent, guardian or other fit person or fit
institution, as the case may be, under whose care the juvenile has been
placed, the terms and conditions of the order shall forthwith furnish one
copy of the supervision order to the juvenile, the parent, guardian or other fit
person or fit institution, as the case may be, the sureties, if any, and the
probation officer."
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 6
5. Conviction for a criminal offence has widespread ramifications. It
immediately impacts employability in public positions. To erase such
consequences upon a juvenile, in recognition of social responsibility for his
actions/omissions, the legislature has mandated removal of any disqualification in
Section 19 which is as follows:-
"19. Removal of disqualification attaching to conviction.-
(1)Notwithstanding anything contained in any other law, a juvenile who has
committed an offence and has been dealt with under the provisions of
this Act shall not suffer disqualification, if any, attaching to a conviction
of an offence under such law. (2) The Board shall make an order directing
that the relevant records of such conviction shall be removed after the expiry
of the period of appeal or a reasonable period as prescribed under the rules,
as the case may be."
6. The legislation contains a special provision as to manner in which courts
would proceed in cases pending on the date the statute came into force. Section 20
in this regard reads thus:-
"20. Special provision in respect of pending cases.- Notwithstanding
anything contained in this Act, all proceedings in respect of a juvenile
pending in any court in any area on the date on which this Act comes
into force in that area, shall be continued in that court as if this Act had
not been passed and if the court finds that the juvenile has committed
an offence, it shall record such finding and instead of passing any
sentence in respect of the juvenile, forward the juvenile to the Board
which shall pass orders in respect of that juvenile in accordance with the
provisions of this Act as if it had been satisfied on inquiry under this Act that
a juvenile has committed the offence."
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 7
7. It is also necessary to advert to some portions of Rule 3 of the Juvenile
Justice (Care and Protection of Children) Rules, 2007, the relevant extract
whereof reads as follows:
"Rule 3. Fundamental principles to be followed in administration of
these rules.―
xxx xxx xxx
IX. Principle of non-waiver of rights:
(a) No waiver of rights of the child or juvenile in conflict with law, whether
by himself or the competent authority or anyone acting or claiming to act on
behalf of the juvenile or child, is either permissible or valid.
(b) Non-exercise of a fundamental right does not amount to waiver.
xxx xxx xxx
XI. Principle of right to privacy and confidentiality
The juvenile‟s or child‟s right to privacy and confidentiality shall be
protected by all means and though all the stages of the proceedings and care
and protection processes.
XIV. Principle of Fresh Start:
(a) The principle of fresh start promotes new beginning for the child or
juvenile in conflict with law by ensuring erasure of his past records.
(b) The State shall seek to promote measures for dealing with children
alleged or recognized as having impinged the penal law, without resorting to
judicial proceedings."
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 8
8. As per section 2(k) of the JJ Act, a juvenile is a person who has not
completed the 18th year of age. Under Section 2l, „a juvenile in conflict with law‟
is a person who has not completed the 18th year of age as on the date of
commission of such offence and is alleged to have committed an offence.
9. A literal construction of section 2l suggests that a „juvenile in conflict with
law‟ includes persons who had not completed 18 years of age as on the date of
commission of the offence but could be beyond such age on the date of
consideration of the issues of conviction and sentencing.
10. As per section 6, the power of the Juvenile Justice Board „JJB‟ or the Board,
hereafter) is restricted to „a juvenile in conflict with law‟. Confinement in a special
home under Section 15(1)(g) is also restricted to a juvenile who is over seventeen
years of age and less than eighteen years of age.
11. The spirit, object and intendment of the JJ Act is obvious from a bare
reading of the statutory provisions. Section 7(1) mandates that when any
Magistrate (other than one empowered to exercise the power of the JJ Bord) is of
the opinion that a person brought before him under any of the provisions of the JJ
Act (other than as a witness), is a juvenile, he shall without any delay record such
opinion and forward the juvenile and the record of the proceeding to the competent
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 9
authority having jurisdiction over the proceeding. Under Sub-Section (2) of
Section 7, the competent authority to which the proceeding is forwarded is
mandated to hold the inquiry as if the juvenile or the child had originally been
brought before it.
12. Section 7A mandates that if the court finds a person to be a juvenile on the
date of commission of the offence under sub-section 1, the juvenile shall be
forwarded to the Board for passing appropriate orders and the sentence, if any,
passed by the court shall be deemed to have no effect.
13. Section 7A is concerned with a claim of juvenility raised before any court.
Upon the court being of the opinion that an accused person may have been a
juvenile on the date of commission of the offence, the court is mandated to conduct
an inquiry so as to determine the age of such person and to record a finding
whether a person is a juvenile or not, stating his age as nearely as may be.
14. The proviso to Section 7A of the JJ Act states that a claim of juvenility as on
the date of the offence may be made by a person at any stage of a proceeding,
before any court, even after the final disposal of the case. If such a claim is made,
the court is required to determine if the individual was a juvenile on the date of
commission of the offence. It does not matter if the individual has ceased to be a
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 10
juvenile before the JJ Act of 2000 came into force. Further, Section 7A(2) states
that if a court finds a person to be a juvenile on the date of commission of the
offence, it shall forward the juvenile to the Juvenile Justice Board for passing
appropriate orders. If a sentence has been imposed by a court, such sentence shall
be deemed to have no effect. Sub-section 2 of Section 7A thus confined its scope
to a person being a juvenile on the date the court accepts such plea.
15. Section 7A does not deal with the case wherein a person claims to have been
a juvenile on the date of commission of the offence, but has ceased to be a juvenile
either on the date on which such plea is taken in the court or it is taken in the
appellate or revisional jurisdiction. It also does not deal with a situation where a
person is not a juvenile, on the date when such plea is accepted by the court. This
is the situation with which we are faced in these cases. We are also unable to find
any judicial precedent which has considered this question. This issue would require
to be thus tested keeping in view the spirit, intendment and purpose of the statute.
16. Another important aspect of the statutory scheme is the provision enacted
with regard to removal of disqualifications attaching to a conviction contained in
Section 19 of the statute. Section 19(1) states that if a person has been convicted
for committing an offence and has been dealt with under the provisions of the JJ
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 11
Act, such person shall not suffer the consequences that attach because of such of a
conviction. Section 19(2) states that the Juvenile Justice Board shall order the
records of the conviction to be removed after the period of appeal has expired.
17. Section 19(1) thus provides a general statutory right for removal of
disqualification but only where the juvenile has been dealt with and convicted
under the `Act‟. This right therefore is limited to proceedings before the Juvenile
Justice Board and not to a conviction by the Magistrate or a court. Section 19(2)
provides the procedure to be followed by the Board, in implementing an order for
removal of disqualification. Thus, when an order is made for the removal of
disqualification, it is the Board which implements the order in actuality, by
removing the records and thus, cleaning the slate so that the juvenile can
commence life afresh.
18. In this context, also of relevance is Rule 3 of the Rules, 2007, which lists the
fundamental principles to be followed in administration of the rules. Rule 3(IX)
unequivocally and absolutely prohibits waiver of the rights of the juvenile. As per
Rule 3 (XIV) (a), one of these fundamental principles is the "Principle of Fresh
Start," which is sought to be achieved by ensuring removal of past records. The
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 12
Board, exercising its power to direct the removal of the records under Section
19(2) of the JJ Act, facilitates the implementation of the "principle of fresh start."
19. The statutory scheme would show that this enactment confers exclusivity on
the Juvenile Justice Board for dealing with all proceedings, which relate to
juveniles.
20. We may briefly notice the factual matrix in these cases before examining the
questions in hand. The same are considered appeal wise hereafter.
II. Crl.(A) No.979/2008 Amar Bahadur Thappa v. State
21. This appeal arises out of an incident which allegedly took place in the night
intervening 22nd/23rd December, 2000 and resulted in the registration of FIR
No.762/2000 implicating the appellant - Amar Bahadur Thappa and co-accused
Raju Chakravarthy on the 23rd December, 2000 by the police station Model Town
for the commission of offences under Sections 302, 392 read with 34 IPC. They
jointly stood trial in Sessions Case No.26/2011 and were convicted for commission
of offence under Sections 302/392 read with Section 34 of the IPC by the judgment
dated 24th September, 2004 of the learned Additional Sessions Judge. By the order
dated 27th September, 2004, the learned trial judge sentenced both the appellants to
imprisonment for life along with a fine of Rs.10,000/- each in default one year
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 13
rigorous imprisonment under Section 302 read with 34 of the IPC. Additionally,
for the offence under Section 392 read with 34 of the IPC, both the accused were
sentenced to rigorous imprisonment for ten years along with a fine of Rs.5,000/-
each in default six months rigorous imprisonment. It was further ordered that both
the sentences imposed on the accused persons shall run concurrently.
22. Crl.(A)No.152/2005 was separately filed by Raju Chakravarthy impugning
the order dated 24th September, 2004. This appeal was allowed by an order dated
4th November, 2011 passed by the Division Bench of this Court.
23. On 28th February, 2012 a plea was orally taken by learned counsel for the
appellant in his appeal (Crl.(A)No.979/2008) that Amar Bahadur Thappa was a
juvenile on the date of commission of offence. No documentation of Amar
Bahadur Thapa‟s date of birth was available. A detailed inquiry was conducted by
this court which included directions to the Investigating Officer to place a report
with regard to the details of marriage of the appellant‟s parents; date of birth and
ages of the siblings of the appellant; constitution of a medical board for the
medical examination of the appellant, first by the Safdarjung Hospital, and then by
the All India Institute of Medical Sciences. After consideration of the material
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 14
placed before the court, the plea of the appellant was accepted that he was juvenile
on the date of commission of the offence by the order dated 28th May, 2012.
24. It is noteworthy that on 28th February, 2012, as per the nominal roll received
from the Central Jail, Tihar, the appellant Amar Bahadur Thappa had undergone 11
years, 2 months and four days in jail. The appellant Amar Bahadur Thapa thus
had undergone imprisonment which is not permissible under Section 15(1)(g) of
the Juvenile Justice (Care and Protection of Children) Act, 2000 (the JJ Act
hereafter). The incarceration for a long period of 11 years is also way beyond the
maximum period of three years which could be ordered to be spent by a juvenile in
a special home as prescribed under the JJ Act.
25. As a result, by the order dated 28th May, 2012, it was directed that the
appellant be released from jail forthwith. As on 28th May, 2012, Amar Bahadur
Thapa would be between 25 - 29 years of age.
III. Crl.(A) No.1087/2010 Ravinder v. State
26. This appeal arises out of an alleged incident on 15 th November, 2004 which
resulted in registration of the FIR No.1035/2004 implicating the present appellant
- Ravinder and co-accused Monu Thappa; Raj Kumar and Arjun Singh Rawat by
the police station Kalkaji for the commission of offences under Sections 302, 397
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 15
read with 34 IPC. They jointly stood trial in Sessions Case No.21/2005. The trial
court convicted the accused Ravinder and Arjun Singh Rawat for commission of
offences under Sections 392/394/302 read with Section 34 of the IPC by the
judgment dated 4th March, 2010. However the other two accused, namely Raj
Kumar and Monu Thappa @ Nepali were given the benefit of doubt for the reason
that no incriminating article had been recovered from them or at their instance and
hence no role could be attributed to these two accused persons. As such they were
acquitted by the trial court.
27. By the order dated 6th March, 2010, the learned trial judge sentenced both
Ravinder and Arjun Singh Rawat to imprisonment for life along with a fine of
Rs.2,000/- each and in default of payment of fine, further one year rigorous
imprisonment for commission of the offence under Section 302 read with 34 of the
IPC. Additionally, for commission of the offence under Section 392 read with 34
of the IPC, both the accused were sentenced to rigorous imprisonment for ten years
along with a fine of Rs.2,000/- each in default of payment of fine one year rigorous
imprisonment and for commission of the offence under Section 392 of the IPC,
both the accused were awarded a sentence of three years rigorous imprisonment
and a fine of Rs.2,000/- and in default of payment of the fine imposed, they were
liable to undergo six months rigorous imprisonment. It was further ordered that the
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 16
substantive sentences under Section 392 and 394 imposed on the accused persons
shall run concurrently with his life imprisonment.
28. Ravinder impugned his conviction as well as the order dated 4th March, 2004
by way of Crl.(A)No.1087/2010. On 13th September, 2010, Crl.M.B.No.1297/2010
was filed in Crl.A.No.1087/2010 seeking a clarification as to whether the co
accused Arjun Singh who has been convicted by the learned Sessions judge has
filed any appeal or not.
29. On 23rd September, 2011 a written plea to file documents on the basis of
which the claims to be juvenile plea was taken by learned counsel for the appellant
in Crl.M.A.No.11306/2011 filed in Crl.A.No.1087/2010 that Ravinder was a
juvenile on the date of commission of offence. Again no documentation to support
this plea was forthcoming. A detailed inquiry was conducted by this court which
included directions to the Investigating Officer to place a report with regard to the
details of marriage of the appellant‟s parents; date of birth and ages of the siblings
of the appellant; constitution of a medical board for the medical examination of the
appellant, first by Safdarjung Hospital. Directions were issued to the Joint
Registrar to conduct an inquiry and record evidence and submit a report with
regard to the juvenility claimed by the appellant. After consideration of the
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 17
material placed before the court, the plea of the appellant that he was juvenile on
the date of commission of the offence was accepted by the order dated 17th July,
2012.
30. It is noteworthy that on 21st September, 2010, as per the nominal roll
received from the Central Jail, Tihar, the appellant Ravinder had undergone 5
years, 9 months and 21 days in jail. It would therefore, appear that the appellant
Ravinder - a juvenile on the date of commission of the offence, had undergone
imprisonment which is completely impermissible under the JJ Act. The
incarceration for the long period of 5 years is also way beyond the maximum
period of three years to be spent in a special home by juvenile which would be
prescribed under the JJ Act.
31. As a result, by the order dated 17th July, 2012, it was directed that the
appellant shall be set at liberty forthwith. As on 17th July, 2012, Ravinder would
be around 26 years of age.
IV. Crl.(A) No.1301/2010 Noor Jahan @ Haseena & Ors. v. State -
32. This appeal was jointly filed by Noor Jahan @Haseena, Abdul Waheed and
Imran Khan assailing their conviction by the judgment dated 22nd September 2010
and the sentence imposed by the order dated 29 th September 2010. The appeal
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 18
arises out of an alleged incident which took place on 8th October, 2008 resulting in
the registration of FIR No.280/2008 implicating the appellants by the police
station Gokul Puri for the commission of offences under Sections 302 and 506
IPC. They jointly stood trial in Sessions Case No.24/2009.
33. By the judgment dated 22nd September, 2010 of the learned Additional
Sessions Judge, the appellants were held guilty for commission of the offences
under Section 302 read with Section 34 IPC and convicted thereunder. Accused
Imran Khan was additionally held guilty for commission of offence under Section
506 of the IPC. The learned trial judge by the order dated 29 th September, 2010,
sentenced the three convicted persons to imprisonment for life along with a fine of
Rs.5,000/- each for offence punishable under Section 302 read with Section 34 of
the IPC. In default of payment of fine, they would further undergo rigorous
imprisonment for one year each. Convict Imran was also further sentenced to
undergo rigorous imprisonment for three years and to pay a fine of Rs.3,000/- for
commission of the offence under Section 506 IPC. In default of payment of fine,
he would further undergo rigorous imprisonment for six months.
34. Crl.(M). (Bail) No.468/2012 was filed by Imran Khan seeking suspension of
sentence. On 16th July 2012, a plea that Imran Khan was a juvenile on the date of
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 19
commission of offence was orally taken by learned counsel for the appellant. No
documentation with regard to his date of birth was available. A detailed inquiry
was conducted by this court which included directions to be produced before the
Medical Superintendent of Lok Nayak Jai Prakash Hospital for conducting the
dental and ossification examination of the appellant. A report dated 1 st July, 2012
was received from the medical experts opining that the appellant was 18 years 2
months 2 days on 8th of October, 2008, the date of the incident. As per Rule 12 of
the Juvenile Justice (Care and Protection of Children) Rules 2000, one year margin
is given on the lower side of the age as opined on medical examination. The plea of
juvenility as on the date of commission of the offence had to be accepted. As a
result, by the order dated 16th August 2012, it was directed that the appellant be set
at liberty by the jail authorities.
35. It is noteworthy that as per the nominal roll received from the Central Jail,
Tihar on the 24th December, 2010, the appellant Imran Khan had undergone 2
years, 2 months and nine days in jail. By 16th August, 2012, Imran Khan would
have undergone over 3 years 10 months of imprisonment, which is more than the
permissible period for which a juvenile delinquent could be sent to a special home
under the JJ Act. As on 16th August, 2012 Imran Khan could be over 27 years of
age.
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 20
V. Death Reference 5/2010 - State v. Jagtar
36. This reference under Section 366 Cr.P.C. is before this court for
confirmation of the death sentence awarded to convicts namely, Jagtar, Sheela,
Gian Chand and Ashok @ Ganja, arising out of an alleged incident which took
place in the night intervening 6th/7th June, 2003 resulting in registration of FIR
No.264/2003 dated 7th June, 2003 by the police station Samey Pur Badli. They
jointly stood trial in Session Case No.123/2008. The accused Jagtar, Sheela, Gian
Chand and Ashok @ Ganja have been convicted under Section 302 read with 34
IPC. The accused Jagtar further stands convicted under Section 25/27 of the Arms
Act by the judgment dated 29th November, 2010 of the learned Additional Sessions
Judge. By the order dated, 2nd December 2010, the appellants have been sentenced
to death subject to confirmation of the sentence by the High Court of Delhi.
Convict Jagtar was further sentenced to undergo rigorous imprisonment for a
period of one year and fine of Rs.5,000/- in default of payment of which, he shall
undergo simple imprisonment for a period of two months for committing offence
under Section 25/27 of the Arms Act and in this regard, benefit under the
provisions of Section 428 Cr.P.C. were also extended to the convict Jagtar.
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 21
37. In Death Reference 5/2010, Sheela and her brother Jagtar filed an
application being Crl.App.No.14021/2011 contending that they were juvenile on
the 7th of June, 2003 when the incident took place. On this application, the court
called for a report to be filed by the State. On the 18th of August, 2011, it was
observed that Sheela‟s claim with regard to date of birth had been verified and a
report of the Sarpanch of the concerned village as well as office of the Additional
District Registrar (Birth and Death) - cum District Health Officer, Panipat
supported her claim. The court was of the view that a further inquiry under
Section 7A of the JJ Act and Rule 12 and 98 of the JJ Rules 2007 be held by the
trial court. Pending inquiry, on a prima facie view that she was juvenile on the
date of the incident, she was granted interim suspension of sentence for a period of
three months which was extended from time to time.
38. Jagtar and Sheela were subjected to medical examination and the inquiry
with regard to their plea of juvenility was undertaken by the trial court in
accordance with law. The report was considered by this court on 20 th of April,
2012 when it was found that on the date of incident, i.e., 7 th of June, 2003, Jagtar
was approximately 16 years of age and that Sheela was older to him by one year
only. As such Sheela would have been 17 years on the date of the incident. They
were therefore, juveniles within the meaning of expression under the JJ Act, 2000.
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 22
39. In view thereof, both the Jagtar and Sheela were held to be juvenile on the
date of the offence and by the order dated 21st September, 2011 directed to be
released forthwith from custody.
40. As on 21st September, 2011, Jagtar would be over 24 years of age while
Sheela would be above 25 years of age.
41. It is noteworthy that on 21st September, 2011, Sheela had undergone 8 years,
3 months and 14 days in jail as per the nominal roll received from Central Jail,
Tihar which imprisonment is not permissible under JJ Act. The incarceration is
also beyond the maximum period of three years which would be ordered to be
spent in a special home by a juvenile delinquent as prescribed under JJ Act.
42. As on 21st April, 2012, Jagtar had undergone 8 years, 10 months and 9 days
in jail as per the nominal roll received from Central Jail, Tihar. Jagtar has also
undergone imprisonment which is not permissible under JJ Act. His incarceration
of 8 years is also way beyond the maximum period of three years which could be
ordered to be spent in a special home by a Juvenile delinquent as prescribed under
JJ Act.
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 23
Ashok Kumar @ Ganja
43. Ashok @ Ganja was produced in this court on 13th of February, 2012. His
physical appearance had suggested that he was still of young age and he was
questioned briefly. The court was of the opinion that an inquiry with regard to his
juvenility on the date of commission of offence was required to be made under
Section 7(A) of the JJ Act, 2000. A direction was issued to the Inquiry Officer to
submit a report with regard to full details of the family including the siblings of the
respondent Ashok Kumar @ Ganja and file the same with documentary materials,
details of marriage of the parents of the respondents, full details of the date of birth
of the siblings as well as school and other records if any. The appellant was also
directed to be produced in custody before the Medical Superintendent of the LNJP
Hospital for a medical examination to obtain a report of his age. The Inquiry
Officer was directed to ensure that a complete inquiry from the concerned
authority and village as well was made and the consolidated report was directed to
be placed before the trial court with a direction to conduct inquiry in terms of
Section 7(A) of the JJ Act.
44. A report was received on 10th April, 2012 from the learned Additional
Sessions Judge which records that the father of the convict Ashok Kumar @ Ganja
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 24
had not submitted any record regarding the birth of his son. The date of birth
recorded in the admission register was based on an affidavit submitted by the
father. As it was unsafe to place reliance on this record, the trial court relied on the
report of the Medical Board according to which he is estimated to be 24 years as
on 1st March, 2012. Computed on this basis, as on 7 th June, 2003, Ashok Kumar
would have been around 15 years of age and hence would fall under the definition
of juvenile as on the date of the offence.
45. By the order dated 20th April, 2012, it was also directed that Ashok Kumar
@ Ganja be released from custody.
46. It is noteworthy that on 21st April, 2012, Ashok Kumar @ Ganja had
undergone 8 years, 10 months and 11 days in jail as per the nominal roll received
from Central Jail, Tihar. Ashok Kumar @ Ganja also has thus undergone
imprisonment which is not permissible under JJ Act. The incarceration is also
beyond the maximum period of three years which a juvenile delinquent could be
ordered to spend in a special home under JJ Act.
47. Other than in Crl.Appeal.No.979/2008, the offences in the above cases were
post 1st April, 2000 when the Juvenile Justice (Care and Protection of Children)
Act, 2000 had come into force.
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 25
48. So far as Crl.A.No.979/2008 is concerned, the same arises out of incident
which took place in the night intervening 22nd/23rd December, 2000. Therefore
Section 20 of the JJ Act would come apply.
VI. Issues arising for consideration
49. The legislature has anticipated the situation where a criminal case may be
pending when the JJ Act came into force, against a person who was juvenile on the
date of commission of the offence. A perusal of Section 20 of the JJ Act would
shows that it postulates that the court would record findings and forward such
juvenile to the Board which shall pass orders in respect of that juvenile in
accordance with the statutory provisions as if it had been satisfied on inquiry under
the JJ Act that the juvenile has committed the offence. The question which has
been raised in these appeals is regarding persons who after facing a full-fledged
trial before courts, have been convicted and are found by an appellate court to be a
juvenile on the date of commission of the offence. How is such person to be
treated? The further question to be answered is as to how the person, a juvenile on
the date of the crime, but has ceased to be so on the date of the finding of his
juvenility, is to be treated.
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 26
50. What happens to the finding of guilt by the trial court as well as the sentence
which has been awarded to the person? Can such a person who is an adult on the
date of the adjudication of the juvenility plea, be forwarded to the Board for fresh
trial or passing of orders on the sentence (as in section 20 of the JJ Act?) A further
question which arises is as to whether the High Court (or the appellate/revisional
court) itself can order removal of the disqualification attached to the conviction by
the trial court, without referring the matter to the Board?
VII. Plea of juvenility on date of offence accepted at appellate stage - status of
appeal against conviction
51. We are here concerned with the course of action to be adopted by the court
when a plea of juvenility on the date of commission of the offence is taken before
an appellate court after the appellant ceased to remain a juvenile or when the
finding of juvenility came to be returned by the appellate court before which the
plea was raised in proceedings pending on the date of the Juvenile Justice Act
coming into force.
52. In the judgment reported at (2009) 13 SCC 211 Hari Ram v. State of
Rajasthan & Anr., the court has extensively considered the provisions of the
Juvenile Justice (Care & Protection of Children) Act, 2000 especially the
provisions of Sections 2(k), 2(l), 7A (Explanation), and 49 (as amended by the Act
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 27
of 2006). The question which was raised before the Supreme Court was as to
whether a person who was below 18 years of age on the date of commission of
the offence, prior to the commencement of the 2000 Act, was entitled to the benefit
under the Act of 2000. The court held that though such person was not a
"juvenile" under a literal application of Section 2(h) of the Juvenile Justice Act,
1986 nor a "juvenile in conflict with law" under Section 2(l), however in all cases
pending in any court on the date the Act came into force, the determination of
juvenility shall be in terms of clause (l) of Section 2 by virtue of the explanation to
Section 20 of the Act of 2000. Therefore, a claim of juvenility was tenable even
after the accused had crossed the age of 18 years on or before the commencement
of the JJ Act 2000 or was undergoing a sentence after conviction.
The permissibility of raising the plea for determination of juvenility for the
first time at the appellate stage is, therefore, no more res integra.
53. Taking note of previous decisions on this point in (2011) 2 SCC 251
Lakhan Lal v. State of Bihar, the Supreme Court has allowed such plea raised
before the Court for the first time and has observed thus:
"21. The fact remains that the issue as to whether the appellants were
juvenile did not come up for consideration for whatever reason, before
the courts below. The question is whether the same could be considered
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 28
by this Court at this stage of the proceedings. A somewhat similar
situation had arisen in Umesh Singh v. State of Bihar [(2000) 6 SCC 89
: 2000 SCC (Cri) 1026] wherein this Court relying upon the earlier
decisions in Bhola Bhagat v. State of Bihar [(1997) 8 SCC 720 : 1998
SCC (Cri) 125], Gopinath Ghosh v. State of W.B. [1984 Supp SCC 228
: 1984 SCC (Cri) 478] and Bhoop Ram v. State of U.P. [(1989) 3 SCC
1 : 1989 SCC (Cri) 486] while sustaining the conviction of the
appellant therein under all the charges, held that the sentences awarded
to them need to be set aside. It was also a case where the appellant
therein was aged below 18 years and was a child for the purposes of the
Bihar Children Act, 1970 on the date of the occurrence. The relevant
paragraph reads as under (Umesh Singh case [(2000) 6 SCC 89 : 2000
SCC (Cri) 1026] , SCC pp. 93-94, para 6):
"6. So far as Arvind Singh, appellant in Criminal Appeal No.
659 of 1999 is concerned, his case stands on a different
footing. On the evidence on record, the learned counsel for the
appellant was not in a position to point out any infirmity in the
conviction recorded by the trial court as affirmed by the
appellate court. The only contention put forward before the
court is that the appellant is born on 1-1-1967 while the date of
the incident is 14-12-1980 and on that date he was hardly 13
years old. We called for a report of experts being placed
before the court as to the age of the appellant, Arvind Singh.
The report made to the court clearly indicates that on the date
of the incident he may be 13 years old. This fact is also
supported by the school certificate as well as the matriculation
certificate produced before this Court which indicate that his
date of birth is 1-1-1967. On this basis, the contention put
forward before the court is that although the appellant is aged
below 18 years and is a child for the purpose of the Bihar
Children Act, 1970 on the date of the occurrence, his trial
having been conducted along with the other accused who are
not children is not in accordance with law. However, this
contention had not been raised either before the trial court or
before the High Court. In such circumstances, this Court
in Bhola Bhagat v. State of Bihar [(1997) 8 SCC 720 : 1998
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 29
SCC (Cri) 125] following the earlier decisions in Gopinath
Ghosh v. State of W.B. [1984 Supp SCC 228 : 1984 SCC
(Cri) 478] and Bhoop Ram v. State of U.P. [(1989) 3 SCC 1 :
1989 SCC (Cri) 486] and Pradeep Kumar v. State of
U.P. [1995 Supp (4) SCC 419 : 1995 SCC (Cri) 395] while
sustaining the conviction of the appellant under all the
charges, held that the sentences awarded to them need to be
set aside. In view of the exhaustive discussion of the law on
the matter in Bhola Bhagat case [(1997) 8 SCC 720 : 1998
SCC (Cri) 125] , we are obviated of the duty to examine the
same but following the same, with respect, we pass similar
orders in the present case. Conviction of the appellant Arvind
Singh is confirmed but the sentence imposed upon him stands
set aside. He is, therefore, set at liberty, if not required in any
other case.‟"
54. Relying on the above pronouncements in several appeals against convictions
and sentences awarded by session‟s court pending in this court, the convicts, as
appellants, have raised a plea of juvenility which if supported by the inquiry in this
regard, has been accepted by the court.
55. The issue as to the procedure to be adopted by the court on such a plea, gets
vexed when it comes to dealing with a case where the person stands convicted and
sentenced by the trial court and has ceased to be juvenile on the date that a plea of
juvenility of the offender as on the date of commission of the offence, is set up
before an appellate court.
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 30
56. The investigating officer as well as the court before whom the challan was
filed, remained oblivious of the juvenility of the accused on the date of
commission of the offence. Such person as well as his counsel also failed to take
such plea in the proceedings before the criminal court. The trial proceedings
culminated in a conviction and a sentence of imprisonment stands imposed upon
the accused person. The plea of juvenility was raised in the appellate proceedings
long after the person ceased to be a juvenile. We attempt to examine the questions
noted hereinabove by the present consideration.
57. We have been ably assisted in the present consideration by Mr. Dayan
Krishnan, Additional Standing Counsel (Criminal), Mr. Siddharth Agarwal, Mr.
Sumer Sethi, Mr. Vivek Sood, learned amicus on behalf of the appellants.
58. Appearing on behalf of the State, Mr. Dayan Krishnan has taken us carefully
through the applicable statutory provisions and judicial precedents and drawn our
attention to similar provisions in statutes regarding juveniles in different countries
including Bangladesh, South Africa, Canada, Nepal, United Kingdom. Mr.
Krishnan has also placed several international instruments including the United
Nations Convention on the Rights of the Child which was adopted and opened for
ratification and accession by the General Assembly Resolution No. 44/25 of 20 th
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 31
November, 1989 and entered into force on 2nd September, 1990; the United
Nations Standard Minimum Rules for the Administration of Juvenile Justice dated
29th November, 1985 and the United Nations Rules for the Protection of Juveniles
Deprived of their Liberty dated 14th November, 1990.
Position in other jurisdictions
59. Mr. Dayan Krishnan, learned Additional Standing Counsel (Criminal) has
submitted that some guidance on the issue can be taken from the position in other
countries. Our attention has been drawn to the provisions of the Children Act, 1974
of the Republic of Bangladesh and the Children Rules, 1976 framed thereunder.
As a matter of illustration of legislative prohibitions, Sections 6, 8, 70, 71 and 76
of this Act deserve to be considered in extenso and read as follows :-
"6. No Joint trial of child and adult - (1) Notwithstanding anything contained
in section 239 of the Code or any other law for the time being in force, no
child shall be charged with, or tried for, any offence together with an adult.
(2) If a child is accused of an offence for which under section 239 of the
Code or any other law for the time being in force such child but for the
provisions of sub-section (1) could have been tried together with an adult,
the Court taking cognizance of the offence shall direct separate trials of the
child and the adult.
8. Adult to be committed to sessions in a case to be committed to sessions--
(1) When a child is accused along with an adult of having committed an
offence and it appears to the Court taking cognizance of the offence that the
case is a fit one for committal to the Court of Session, such Court shall, after
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 32
separating the case in respect of the child from that in respect of the adult,
direct that the adult alone be committed to the Court of Session for trial.
(2) The case in respect of the child shall then be transferred to a Juvenile
Court if there is one or to a Court empowered under section 4, if there is no
Juvenile Court for the local area, and the Court taking cognizance of the
offence is not so empowered:
Provided that the case in respect of the child shall be transferred to the Court
of Session under section 5 (3) if it is exclusively triable by the Court of
Session in accordance with the Second Schedule of the Code.
xxx
70. When a child is found to have committed any offence, the fact that
he has been so found shall not have any effect under section 75 of the
Penal Code (XLV of 1860), or section 565 of the Code or operate as a
disqualification for any office, employment or election under any law.
71. Save as provided in this Act, the words „conviction' and „sentenced' shall
cease to be used in relation to children or youthful offenders dealt with under
this Act, and any reference in any enactment to a person convicted, a
conviction or a sentence shall, in the case of a child or youthful offender be
construed as a reference to a person found guilty of an offence, a finding of
guilty or an order made upon such a finding, as the case may be.
xxxx
76. (1) Notwithstanding anything contained in the Code, an appeal from an
order made by a Court under the provisions of this Act shall lie-
(a) if the order passed by a Juvenile Court or a Magistrate empowered under
section 4, to the Court of Session; and
(b) if, the order is passed by a Court of Session or Court of an Additional
Sessions Judge or of an Assistant Sessions Judge, to the High Court
Division.
(2) Nothing in this Act shall affect the powers of the High Court Division to
revise any order passed by a Court under this Act."
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 33
To try a child for commission of offences, in the ordinary course is,
therefore, statutorily prohibited under the Children Act, 1974.
60. An issue similar to the one with which we are concerned herein had arisen
before the Supreme Court of Bangladesh and High Court division in W.P.(C)
No.1341/2000 in the matter of Bangladesh Legal Aid and Services Trust and Anr.
V. Bangladesh & Ors. The judgment of the Division Bench was delivered on 6 th
November, 2001.
61. In this case, the petitioner no. 2 stood convicted and sentenced by a
judgment dated 1st December, 1998 passed by Mr. Iktedar Ahmed, Bicharak
(District and Sessions Judge), Nari-O-Shishu Nirjatan Daman Bishesh Adalat,
Comilla, in Nari-O-Shishu Case No.4 of 1998. The petitioner no. 2 stood
convicted for offences under Sections 5 (kha) and 5 (gha) of the Nari-O- Shishu
Nirjatan (Bishesh Bidhan) Ain, 1995 and was sentenced to suffer imprisonment for
life as well as the fine and in default to undergo other punishments of lesser
duration on other counts. In this case, the Special Tribunal itself found that the
petitioner no. 2 was 14-15 years of age at the time of occurrence. A challenge was
laid to this conviction and sentence on the grounds that the same was violative of
the aforenoticed statute as well as of the repeated directions of the High Court
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 34
Division; was unconstitutional; was without jurisdiction and of no legal effect.
The Bangladesh court had referred to the pronouncement of the Supreme Court of
India reported at AIR 1986 SC 1777 Sheela Barse & Ors. vs. UOI & Ors. while
referring to the issue as to whether an accused, if found to be a child, could be
lodged in prison. It was further observed that the Children Act, 1974 provided
different processes and modes of arrest, detention and trial of the juvenile
offenders being below 16 years of age. Consequently, the court found that the trial
of the petitioner no. 2 held by the Special Tribunal was "without jurisdiction" and
without lawful authority; and that as such the impugned judgment and order of
conviction was void ab initio. The court referred to other precedents wherein also
it had been so ruled as far as conviction of persons who were below the age of 16
years at the time of trial was concerned. The court also found that there was no
evidence to support the order of conviction and sentence as the charge against the
petitioner no. 4 had not been proved by even a single witness and that the order of
conviction had been passed on the basis of his uncorroborated confessional
statement which was made when the convict was a minor and hence, did not have
the required competency to make it. The court found that the child had no maturity
to understand the consequences of such statement and that he had, in a written
statement, categorically stated that the statement was procured through coercion,
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 35
threat and false promises to release him on giving the statement, before the
magistrate as tutored by the police.
62. The principle reiterated by the court was that the very trial of the person was
in violation of the statute and therefore completely without jurisdiction. This case
however, does not deal with a issue of plea of juvenility being taken post
conviction in proceedings in the appellate court. It also does not envisage the
conditions anticipated by the Indian legislature and the prescription in Section 20
of the JJ Act, 2000. The Indian legislature has empowered the court to complete
the pending proceedings, record findings and thereafter to forward the juvenile and
the proceedings to the JJB for passing the sentence.
63. In this regard, Mr. Dayan Krishnan, learned Additional Standing Counsel
has also referred to us the consideration by the Supreme Court of the United States
of America in the judgment reported at 383 U.S. 541 : 16 L.Ed.2d 84 in the case
titled Morris A. Kent, Jr. v. United States. In this case, the petitioner was
prosecuted for house breaking, robbery and rape. The United States District Court
for the District of Columbia entered a judgment of conviction on counts of
housebreaking and robbery. The defendant appealed to the United States Courts of
Law for the District of Columbia Circuit which affirmed the judgment of the trial
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 36
court and granted certiorari. The Supreme Court held that the District of Columbia
Juvenile Court Act allowed the Juvenile Court to waive jurisdiction over the
juvenile after full investigation. As a condition to a valid waiver order, the
juvenile was entitled to a hearing including access by his counsel to the social
records and probation or similar reports, which presumably were considered by the
court. It was also observed that the same included a statement of reasons for the
decision of the juvenile court. In this case, the juvenile court waived jurisdiction
and the petitioner was indicted by a grand jury of the United States District Court
for the District of Columbia on eight counts. The petitioner moved the District
Court to dismiss the indictment on the ground that the waiver was invalid and also
moved the District Court to constitute itself a Juvenile Court in accordance with
law. The District Court denied the motion to dismiss the indictment and ruled that
it would not „go behind‟ the Juvenile Court judge‟s recital that his order was
entered „after full investigation‟. The District Court held that the petitioner was
guilty and sentenced to imprisonment. The challenge to the findings was laid
before the Supreme Court inter alia on the ground that his detention and
interrogation were unlawful and that the police failed to follow the procedure
prescribed by the Juvenile Court and also that they failed to notify the parents of
the juvenile. The petitioner attacked the waiver of jurisdiction on the ground that
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 37
no hearing was held; that no findings and no reasons were given by the Juvenile
Court for the waiver and because counsel was denied access to the social service
file.
64. The Supreme Court ruled that full investigation was required before waiver
of jurisdiction and that the same could not be granted as a matter of routine. The
procedural regularity required satisfaction of the basic requirements of due process
and fairness as well as compliance of the statutory requirement of a „full
investigation‟. Though the statute conferred substantial degree of discretion on the
juvenile court, it did not confer upon it a license for arbitrary procedure and did not
permit the juvenile court to determine in isolation and without the participation
or any representation of the child, of the „critically important‟ question whether a
child would be deprived of the special protection and provisions of the Juvenile
Court Act. The Supreme Court concluded that the petitioner was by statute
entitled to certain procedures and benefit as a consequence of his statutory right to
be tried by the exclusive jurisdiction of the juvenile court and as a condition to a
valid waiver order, the petitioner was entitled to a hearing, including access by his
counsel to the social records and probation and similar reports which were
presumably considered by the court and to a statement of reasons.
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 38
65. This pronouncement was relied upon by the US Supreme Court in the later
decision reported at 387 U.S. 1 (1967) In Re Gault wherein observations of the
court on the history underlying the development of the juvenile court movement
shed valuable light on the ethos and background behind similar provisions in other
jurisdictions which observations read as follows :-
"3. In such proceedings the child and his parents must be advised of their
right to be represented by counsel and, if they are unable to afford counsel,
that counsel will be appointed to represent the child. Mrs. Gault's statement
at the habeas corpus hearing that she had known she could employ counsel,
is not "an `intentional relinquishment or abandonment' of a fully known
right."
4. The constitutional privilege against self-incrimination is applicable in
such proceedings: "an admission by the juvenile may [not] be used against
him in the absence of clear and unequivocal evidence that the admission was
made with knowledge that he was not obliged to speak and would not be
penalized for remaining silent." "[T]he availability of the privilege does not
turn upon the type of proceeding in which its protection is invoked, but upon
the nature of the statement or admission and the exposure which it invites. . .
. [J]uvenile proceedings to determine `delinquency,' which may lead to
commitment to a state institution, must be regarded as `criminal' for
purposes of the privilege against self-incrimination." Furthermore,
experience has shown that "admissions and confessions by juveniles require
special caution" as to their reliability and voluntariness, and "[i]t would
indeed be surprising if the privilege against self-incrimination were available
to hardened criminals but not to children." "[S]pecial problems may arise
with respect to waiver of the privilege by or on behalf of children, and . . .
there may well be some differences in technique but not in principle
depending upon the age of the child and the presence and competence of
parents. . . . If counsel was not present for some permissible reason when an
admission was obtained, the greatest care must be taken to assure that the
admission was voluntary. . . ." Gerald's admissions did not [387 U.S. 1,
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 39
3] measure up to these standards, and could not properly be used as a basis
for the judgment against him."
66. The jurisprudence from Bangladesh as well as judgments by the Supreme
Court of the United States of America manifest the concern of the courts and
authorities with the rights of the child, specially those in conflict with law. Strict
compliance with the letter and spirit of legislation stipulating special procedures
and courts for trials of juvenile offenders has been mandated in all jurisdictions.
Failure to do so has rendered the trial court proceedings and judgments as violative
of law and held to be without jurisdiction.
67. These very concerns are manifested in the statutory provisions in India as
well as the jurisprudence which has developed here as would be evident from the
following discussion. As is evident from Principle IX of Rule 3 of the JJ Rules
reproduced above, there can be no waiver of the rights of the juvenile in India.
VIII. Judicial precedents
68. There is scanty jurisprudence with regard to the pleas of juvenility being
raised in criminal appeals against conviction by the convicts before the High
Courts, though several instances of such plea being pressed before the Supreme
Court are available. It would be useful to examine such jurisprudence to answer
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 40
the question as to whether this court can order removal of the disqualification of
conviction for criminal offences or is it essential for this Court to refer the matter
to the Juvenile Justice Board upon arriving at a conclusion that the
appellant/convict was a juvenile on the date of commission of the offence.
69. Prior to the JJ Act, 2000 coming into force, these issues were dealt under the
Children‟s Act as applied and were in vogue in the different states.
70. The examination of the jurisprudence on the subject would show that the
Supreme Court has followed three approaches in dealing with the issue of
juvenility when it has been raised before it for the first time. We have available a
set of cases whereby the Supreme Court upheld the conviction of the individual
while quashing/suspending the sentence without making any reference to the
removal of the disqualification which is attached to the conviction and/or the
sentence.
71. In the second set of cases we find that the Supreme Court has referred the
cases to the Juvenile Justice Board for appropriate action. It is obvious therefrom
that, in such cases, the Juvenile Justice Board while passing the requisite order
under Section 15 of the JJ Act, would also pass an order under Section 19(2) for
removal of any disqualification attached to the conviction.
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 41
72. The third approach followed by the Supreme Court in some cases is to itself
direct that any disqualification incurred shall be removed.
73. We would firstly discuss the approaches adopted by the Supreme Court
before adverting to the few instances where the such issue has arisen before the
High Courts.
Conviction sustained, sentence set aside.
74. The judgment of the Supreme court reported at (1981) 4 SCC 149 Jayendra
& Anr. V. State of U.P. has been placed before us. In this case a question arose in
the context of a plea of juvenility by the appellant Jayendra that he was about 15
years on the date of the offence and sought benefit under the Uttar Pradesh
Children Act, 1951. Section 29 of this Act was similar to the provisions of Section
7A of the JJ Act. Section 29 provided that if the child is found to have committed
an offence punishable with imprisonment, the court may order him to be sent to an
approved school for a period of stay as will not exceed his attaining the age of 18
years. Jayendra was 23 years of age on the date of the report of his juvenility plea
and therefore, in view of the provision of Section 29 of the Uttar Pradesh Children
Act, 1951 could not be sent to an approved school. For this reason, the Supreme
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 42
Court upheld the conviction of the appellant of Jayendra and quashed the sentence
imposed upon him and directed that he shall be released forthwith.
75. In (1989) 3 SCC 9 Bhoop Ram v. State of U.P. the appellant stood
convicted with five others for commission of offences under Section 148, 302, 323,
324 read with Section 149 of the IPC and sentenced to life imprisonment besides
concurrent sentences for lesser terms of imprisonment. Placing reliance on a
school certificate showing his date of birth, the appellant had claimed that he
should have been treated as a child within the meaning of Section 2(4) of the U.P.
Children Act, 1951. The learned Sessions Judge did not go into the question as to
whether the appellant was below 16 years of age on the date of offence and
proceeded to award the lesser sentence of imprisonment of life instead of the
extreme penalty of death sentence. In the face of this plea, at the stage of
admission of the Special Leave Petition, the Supreme Court was of the view that
the Sessions Judge, Bareilly be called upon to enquire into the age of the appellant
and submit a report with the option to have the appellant examined by the Chief
Medical Officer of the State. Liberty was given to the parties to adduce evidence
on this aspect. In this case, the Chief Medical Officer, Bareilly gave a certificate
that the appellant appeared to be 30 years of age as on 30 th April, 1987. The
appellant had placed only his school certificate before the Sessions Judge to prove
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 43
that he had not completed 16 years on 3 rd October, 1975, the date of commission
of the offence. This certificate was rejected by the learned Sessions Judge on the
ground that it was not unusual that in schools, ages are understated by one or two
years for future benefits.
76. The Supreme Court rejected the finding of the learned Sessions Judge and
opined that the appellant could not have completed 16 years of age on 3 rd October,
1975 and ought to have been treated as a child within the meaning of Section 2(4)
of the U.P. Children Act and dealt with u/s 29 of the Act because of the following
three factors :-
"i) The first is that the appellant has produced a school certificate
which carries the date 24-6-1960 against the column 'date of birth'.
There is no material before us to hold that the school certificate does
not relate to the appellant or that the entries therein are not correct in
their particulars."
(ii) The second factor is that the Sessions Judge has failed to bear in
mind that even the Trial Judge had thought it fit to award the lesser
sentence of imprisonment for life to the appellant instead of capital
punishment when he delivered judgment on 12-9-1977 on the ground
the appellant was a boy of 17 years of age. The observation of the trail
judge would lend credence to the appellant's case that he was less than
10 years of age on 3-10-1975 when the offences were committed.
(iii) The third factor is that though the doctor has certified that the
appellant appeared to be 30 years of age as on 30-4-1987, his opinion
is based only on an estimate and the possibility of an error of estimate
creeping into the opinion cannot be ruled out. As regards the opinion
of the Sessions Judge, it is mainly based upon the report of the Chief
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 44
Medical Officer and not on any independent material. On account of
all these factors, we are of the view that the appellant would not have
completed 16 years of age on the date the offences were committed. It
therefore follows that the appellant should have been dealt with under
the U.P. Children Act instead of being sentenced to imprisonment
when he was convicted by the Sessions Judge under various counts."
(Underlining by us)
77. It is noteworthy that in Bhoop Ram v. State of U.P. (Supra), the Supreme
Court followed the reasoning of Jayendra & Another v. State of U.P. (Supra). On
the date of consideration of the appeal by the Supreme Court, the appellant Bhoop
Ram was aged more than 28 years of age and there was no question of his being
sent to an approved school in accordance with the provisions of U.P. Children Act,
1951 and for being detained there. The appellant had crossed the maximum age of
detention at the time of consideration of the issue.
78. Therefore, so far as the manner in which the appellant Bhoop Ram was to be
treated as he was more than 28 years of age at the time of consideration of the case
by the Supreme Court is concerned, the court adopted the course followed in
Jayendra v. State of U.P.(supra) and observed that the course which was to be
followed is to sustain the conviction but however, quash the sentence imposed on
the accused. The court accordingly sustained the conviction of the appellant under
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 45
all the charges framed against him but quashed the sentence awarded to him and
directed his release forthwith. In this regard, the court had observed as follows:-
"8. Since the appellant is now aged more than 28 years of age,
there is no question of the appellant now being sent to an approved
school under the U.P. Children Act for being detained there. In a
somewhat similar situation, this Court held in Jayendra v. State of
U.P. (1981) 4 SCC 149 : 1982 Cri LJ 1000 that where an accused had
been wrongly sentenced to imprisonment instead of being treated as a
"child" under Section 2(4) of the U.P. Children Act and sent to an
approved school and the accused had crossed the maximum age of
detention in an approved school viz. 18 years, the course to be
followed is to sustain the conviction but however quash the sentence
imposed on the accused and direct his release forthwith. Accordingly,
in this case also, we sustain the conviction of the appellant under all
the charges framed against him but however quash the sentence
awarded to him and direct his release forthwith. The appeal is
therefore partly allowed in so far as the sentence imposed upon the
appellant are quashed."
(Underlining by us)
79. At this stage, we may notice another pronouncement of the Supreme Court.
An issue of juvenility was raised for the first time before the Supreme Court of
India by the appellant in the judgment reported at (2005) 12 SCC 615 Gurpreet
Singh vs. State of Punjab and the connected appeal. In this regard, the court laid
down the procedure which was required to be followed under the following terms:-
"18. .............It appears that this point was not raised
either before the trial court or the High Court. But it is
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 46
well settled that in such an eventuality, this Court
should first consider the legality or otherwise of
conviction of the accused and in case the conviction is
upheld, a report should be called for from the trial court
on the point as to whether the accused was juvenile on
the date of occurrence and upon receipt of the report, if it
is found that the accused was juvenile on such date and
continues to be so, he shall be sent to juvenile home. But
in case it finds that on the date of the occurrence, he was
juvenile but on the date this Court is passing final order
upon the report received from the trial court, he no
longer continues to be juvenile, the sentence imposed
against him would be liable to be set aside."
(Emphasis by us)
80. It is noteworthy that the dicta in Bhoop Ram (Surpa) is cited as an authority
for suspension of sentence while upholding the conviction in cases involving the
Juvenile Justice Act, 1986 as well.
81. The Supreme Court had observed that it is well settled that in such an
eventuality, the court should first consider the legality, or otherwise, of the
conviction of the accused. In case the conviction is upheld, a report should be
called for from the trial court on the point as to whether the accused was juvenile
on the date of occurrence and upon receipt of the report, if it is found that the
accused was juvenile on such date and continues to be so, he shall be sent to
juvenile home. In case the court finds that on the date of the occurrence, he was
juvenile but on the date the Court is passing the final order upon the report
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 47
received from the trial court, he no longer continues to be juvenile, the sentence
imposed against him would be liable to be set aside.
82. In (2010) 5 SCC 344 Dharambir v. State (NCT of Delhi) & Anr., the court
reiterated the well settled principles that a claim of juvenility would be
maintainable and can be raised before any court or forum and has to be recognised
at any stage even after disposal of the case. In this case, by the impugned
judgment, the High Court had upheld the conviction of the appellant for
commission of the offences under Sections 302 and 307 read with Section 34 of
the Indian Penal Code, 1860. The appellant had been sentenced to imprisonment
for life under sections 302/34 IPC as well as fine. Additionally, for commission of
offence under Section 307/34 IPC, he stood sentenced to undergo rigorous
imprisonment for a term of seven years and fine. The Supreme Court noted that at
the time of pronouncement, the appellant had undergone an actual period of
sentence of 2 years, 4 months and 4 days and was now aged about 35 years. The
court was of the view that keeping in mind the age of the appellant, it may not be
conducive to the environment in the Special Home and to the interest of other
juveniles housed in the Special Home, to refer him to the Board for passing orders
for sending the appellant to Special Home or for keeping him at some other place
of safety for the remaining period of less than eight months, the maximum period
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 48
for which he can now be kept in either of the two places in accordance with the
provisions of the Juvenile Justice Act, 1986. For these reasons, while sustaining
the conviction of the appellant for the aforestated offences, the sentence imposed
upon him was quashed and he was directed to be released forthwith.
83. We find that this issue arose in yet another pronouncement reported at
(2012) 8 SCC 800 Babla @ Dinesh v. State of Uttrakhand before the Supreme
Court of India. The plea of juvenility had been raised by the appellant before the
High Court which stood rejected by the High Court on the ground that it was not
raised before the trial court and no evidence has been adduced in defence and no
suggestion had been made to the witnesses. The High Court had also relied on the
statement made by the appellant with regard to his age being 20 years at the time
of recording of his statement under Section 313 of the Code of Criminal Procedure.
The High Court had examined the appeal on merits in great detail. The appellant
had challenged the rejection of the juvenility plea by the High Court. The Supreme
Court directed an inquiry to be conducted with regard to the age of the appellant on
the date of commission of offence and to submit a report as envisaged under Rule
12 of the JJ Act. The Supreme Court accepted the inquiry report dated 3 rd
December, 2011 wherein it was concluded that the appellant was aged between 10
to 15 years on the date of commission of offence and therefore, held that on the
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 49
date of the offence the appellant was juvenile. The court noted that the appellant
had undergone actual period of sentence of more than three years out of the
maximum period prescribed under Section 15 of the Juvenile Justice Act. In these
circumstances, while sustaining the conviction of the appellant, the sentence
awarded to him by the trial court (which stood confirmed by the High Court) was
set aside.
84. Again in an judgment reported at (2012) 8 SCC 763 Vijay Singh v. State of
Delhi the issue of juvenility was raised for the first time only before the Supreme
Court. In this case as well, in para 7 of the pronouncement, the Supreme Court
noted that there was overwhelming evidence led before the trial court which on
being convinced of proof of guilt against the appellant, had convicted him for the
offence under Section 307 of the IPC and had imposed a sentence of five years
rigorous imprisonment with fine. The Supreme Court also noted that on a detailed
analysis of the evidence available on record and the injuries sustained by the
victim, supported by medical evidence, the High Court had dismissed the appeal.
In these circumstances, the Supreme Court noted that it did not find any scope to
interfere with the order of conviction imposed on the appellant. After returning
this finding, the court proceeded to examine the impact of the plea of juvenility
raised by the appellant for the first time before it.
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 50
In paras 14 and 15 of the pronouncement, the court considered the juvenility
plea of the appellant and concluded that he was below 18 years on the date of
commission of offence and therefore, the provisions of the JJ Act, 2000 would
apply in full force in his case. Having so concluded in para 16, the court held the
following: -
"16. Having regard to the above conclusion, in the normal course we
would have remitted the matter to the Juvenile Justice Court, Itawa for
disposal in accordance with law. However, since the offence was
alleged to have been committed more than 10 years ago and having
regard to the course adopted by this Court in certain other cases
reported in Jayendra v. State of U.P. [(1981) 4 SCC 149 : 1981 SCC
(Cri) 809] , Bhoop Ram v.State of U.P. [(1989) 3 SCC 1 : 1989 SCC
(Cri) 486] which were subsequently followed in Bhola Bhagat v.State
of Bihar [(1997) 8 SCC 720 : 1998 SCC (Cri) 125] , Pradeep
Kumar v. State of U.P. [1995 Supp (4) SCC 419 : 1995 SCC (Cri) 395]
, Upendra Kumar v. State of Bihar [(2005) 3 SCC 592 : 2005 SCC
(Cri) 778] and Vaneet Kumar Gupta v. State of Punjab [(2009) 17 SCC
587 : (2011) 1 SCC (Cri) 1092] , we are of the view that at this stage
when the appellant would have now crossed the age of 30 years, there
is no point in remitting the matter back to the Juvenile Justice Court.
Instead, following the abovereferred decisions, appropriate orders can
be passed by this Court itself."
85. The precedents noted in para 16 of Vijay Singh (supra) above were
considered at length. In each of these cases, the evidence before the trial court and
the conviction by court stood considered and upheld by the High Court. The
conviction was therefore, sustained by the Supreme Court. However, the sentence
awarded to them had been quashed. Consequently, in para 27 of [Vijay Singh
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 51
(Supra)] also while upholding the conviction of the appellant, the Supreme Court
set aside the sentence imposed upon him and directed that he be released forthwith,
if not required in other cases.
86. It is important to note that so far as the judgments of the Supreme Court in
Jayendra; Vijay Singh; Bhoop Ram; Dharambir; Babla @ Dinesh as well as
Gurpreet Singh (Supra) are concerned, the issue of juvenility was being
considered by the Supreme Court. In all these judicial precedents, the convictions
by the trial courts had been challenged before the High Courts in appeals. The
evidence recorded before the trial courts stood tested and considered in the appeals
by the High Courts. The findings of guilt of the appellants were found justified by
the High Courts which had considered the evidence and rejected the appeals of
these persons. It was in these circumstances, while confirming the conviction, the
Supreme Court had set aside the sentence imposed upon the appellants.
Conviction set aside
87. We may now consider the second approach which has been followed in
some cases by the Supreme Court. In some cases, the court not only accepted the
plea of juvenility but also set aside the conviction. In this regard we may usefully
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 52
refer to the judgment reported at 1984 (Supp.) SCC 228 Gopinath Ghosh v. State
of West Bengal which arose in the context of the West Bengal Children Act.
In this case, the entire trial was conducted before the Additional Sessions
Judge, Nadia who found that the appellant had caused the fatal injury to the
deceased in furtherance of the common intention of the three accused and
convicted all of them for commission of an offence under Section 302 read with
Section 34 of the Indian Penal Code and sentenced each of them to suffer
imprisonment for life. The High Court rejected the appeal filed by the appellant
who thus moved the Supreme Court. At this stage, a plea was urged on his behalf
that as on 19th August, 1974, the date of the offence, the appellant was aged below
18 years and was therefore a child entitled to the benefit of the benevolent
provisions of the West Bengal Children Act, 1959.
88. The Supreme Court remitted the issue for decision on the age of the
appellant after recording evidence to the Sessions Judge, Nadia. Section 24 of the
West Bengal Act contained a non-obstante clause and took away the jurisdiction of
the court to impose the sentence of death on a juvenile delinquent as well as the
power to impose a sentence of imprisonment or commitment to prison in default of
payment of fine or in default of furnishing security of a juvenile delinquent. As
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 53
per the proviso to sub-clause 2 of Section 24, the court was empowered to impose
a sentence of imprisonment on the juvenile delinquent if the conditions prescribed
therein are satisfied. An application to the court to report the case to the State
Government and direct the juvenile delinquent to such custody as it may deem fit
was made.
89. Section 4 conferred power on the State Government to establish juvenile
courts by a notification in this behalf. It was held that, from a reading of the
statute, that a juvenile delinquent ordinarily has to be released on bail irrespective
of the nature of the offence alleged to have been committed, unless it is shown that
there appears reasonable grounds for believing that the release was likely to bring
him under the influence of any criminal or expose him to moral danger or defeat
the ends of justice. Section 25 forbade any trial of a juvenile delinquent and only
an inquiry could be held in accordance with the provisions of the Code of Criminal
Procedure („Cr.P.C.‟) for the trial of a summons case. The court called for a report
of the Additional Sessions Judge, which, on unassailable evidence, established
that, on the date of offence, the appellant was a juvenile delinquent. The Supreme
Court held that the learned Magistrate therefore, could not have committed his case
to the court of sessions in view of the statutory provisions and thus the entire trial
of the appellant was without jurisdiction and vitiated. The Supreme Court
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 54
therefore set aside as unsustainable the conviction of the appellant for having
committed an offence under Section 302 IPC and the consequential sentence for
imprisonment for life imposed by the learned Additional Sessions Judge as well as
confirmed by the High Court.
As to what should follow, in para 12 of the judgment, the court directed
thus:-
"12. The next question is what should be the sequel to our decision ? The
appellant has been in prison for some years. But neither his antecedents nor
the background of his family are before us. It is difficult for us to gauge how
the juvenile court would have dealt with him. Therefore, we direct that the
appellant be released on bail forthwith by the learned Additional Sessions
Judge, Nadia. The case is remitted to the learned Magistrate for proceeding
further in accordance with law keeping in view the provisions of the Act."
(Underlining by us)
90. A similar view was taken in the pronouncement of the Karnataka High Court
reported at ILR 2005 KAR 1572 State of Karnataka v. Harshad. The High Court
reiterated the legislative mandate that Juvenile Justice Board having been
constituted, it therefore alone would have the exclusive power of dealing with the
issue of juvenility and to that extent the jurisdiction of any court including that of
the Sessions Court or Fast Track Court is barred.
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 55
91. In (1981) 4 SCC 210 Raghbir v. State of Haryana, a question was raised as
to whether a person under 16 years of age and accused of offence under Section
302 of the Penal Code can get the benefit of the Haryana Children Act, 1974. The
High Court sustained the conviction and the sentence. The discussion by the
Supreme Court in para 19 of the pronouncement sheds valuable light on the issue
under consideration and reads as follows:-
"19. Mr Bhagat in support of his contention has relied on a Full
Bench decision of the Madhya Pradesh High Court in Devi
Singh v. State of M.P [1978 Cri LJ 585] . The Full Bench of three
judges considered the jurisdiction of the Madhya Pradesh Bal
Adhiniyam, 1970 (15 of 1970) to try a juvenile offender for offences
punishable with death or imprisonment for life. There was a difference
of opinion.
The view of the majority was that the juvenile courts constituted under
the Madhya Pradesh Bal Adhiniymn have exclusive jurisdiction to try a
delinquent child (a person under sixteen years of age) for all
offences except those punishable with death or imprisonment for life
even after the commencement of the Code of Criminal Procedure, 1973
(Act 2 of 1974), while the minority view of Verma, J. was to the
contrary. With respect, the majority view is erroneous. Verma, J. has
observed as follow:
"...Such a conclusion is supported also by the fact that the Bal
Adhiniyam is a special local Act while the new Code is a general
enactment applicable throughout the country on account of which the
special local Act would apply within this State in preference to the
general law on the subject. It is in this light that the question has to be
examined with a view to determine whether there is any such
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 56
irreconcilable conflict so as to attract Article 254 of the Constitution.
This is the real question for decision."
He has held:
"Applying the tests indicated by the settled principles, I have no
hesitation in holding that there is no real conflict between the
provisions of the new Code, particularly Section 27 thereof, and the
provisions of the Bal Adhiniyam. In short, the provisions of the new
Code clearly save any special or local law like the Bal Adhiniyam and
Section 27 of the new Code is merely an enabling provision which does
not express any contrary intention to undo the saving provided in
Section 5 of the new Code. There being thus no conflict or repugnancy,
the question of Article 254 of the Constitution being attracted does not
arise."
With respect, Verma, J. has expressed the correct opinion."
Matter referred to the Juvenile Justice Board
92. We may now examine the third approach, which is to refer the matter to the
Juvenile Justice Board.
93. Section 7(A) of the Juvenile Justice (Care and Protection of Children) Act,
2006 permits the claim of juvenility to be made by a person at any stage of
proceedings and before any court, even after the disposal of the case.
94. In the judgment reported at (2009) 17 SCC 574 Rambir Singh & Ors. v.
State of Uttar Pradesh, upon the plea of juvenility being raised before it, the court
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 57
sustained the conviction. Instead of suspending the sentence, the matter was
referred to the Juvenile Justice Board for the purposes of sentencing. The case of
the appellant no.4 who had taken the plea of juvenility was transmitted to the
Juvenile Justice Board for passing appropriate orders in terms of Section 15 of the
Act read with Rule 98 of the Juvenile Justice (Care and Protection of Children) and
Rules framed thereunder.
95. Thus the Juvenile Justice Board had to take action under Section 15 of the
Juvenile Justice Act read with Rule 98 of the Rules framed thereunder. This
procedure requires to be followed upon plea of juvenility being raised before the
court.
IX. Procedure to be followed when the plea is raised in an appeal before the
High Court and matter of removal of disqualification.
96. The Supreme Court has also made observations on the manner in which the
High Court would proceed where the plea of juvenility is raised for the first time
before it in an appeal against the conviction and order of sentence by the trial
court. In the case reported at (2012) 8 SCC 34 Kalu @ Amit v. State of Haryana,
the court noted that on 7th April, 1999 when the offence in question took place,
Kalu @ Amit was a juvenile. He was convicted by the trial court on 7th September,
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 58
2000. The Juvenile Justice Act came into force on 1 st April, 2001. The appeal of
Kalu @ Amit was decided by the High Court on 11th July, 2006.
97. We have set out Section 20 of the JJ Act in extenso hereinabove, which
provides the manner in which the trial in court of a person, who is juvenile on the
date of which the Juvenile Act came into force, is to proceed. In Kalu @ Amit v.
State of Haryana (Supra), the Supreme Court had considered the provisions of
Section 20 thus:-
"21. Section 20 makes a special provision in respect of pending
cases. It states that notwithstanding anything contained in the Juvenile
Act, all proceedings in respect of a juvenile pending in any court in
any area on the date on which the Juvenile Act comes into force in
that area shall be continued in that court as if the Juvenile Act had not
been passed and if the court finds that the juvenile has committed an
offence, it shall record such finding and instead of passing any
sentence in respect of the juvenile forward the juvenile to the Board
which shall pass orders in respect of that juvenile in accordance with
the provisions of the Juvenile Act as if it had been satisfied on inquiry
under the Juvenile Act that the juvenile has committed the offence.
The Explanation to Section 20 makes it clear that in all pending cases,
which would include not only trials but even subsequent proceedings
by way of revision or appeal, the determination of juvenility of a
juvenile would be in terms of clause (l) of Section 2, even if the
juvenile ceased to be a juvenile on or before 1-4-2001, when the
Juvenile Act came into force, and the provisions of the Juvenile Act
would apply as if the said provision had been in force for all purposes
and for all material times when the alleged offence was committed.
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 59
22. As regards the Explanation to Section 20 of the Juvenile Act, it
would be appropriate to quote observations of this Court in Hari
Ram v. State of Rajasthan [(2009) 13 SCC 211 : (2010) 1 SCC (Cri)
987] . The observations read thus: (SCC p. 223, para 39)
"39. The Explanation which was added in 2006, makes it
very clear that in all pending cases, which would include not
only trials but even subsequent proceedings by way of
revision or appeal, the determination of juvenility of a
juvenile would be in terms of clause (l) of Section 2, even
if the juvenile ceased to be a juvenile on or before 1-4-
2001, when the Juvenile Justice Act, 2000 came into force,
and the provisions of the Act would apply as if the said
provision had been in force for all purposes and for all
material times when the alleged offence was committed. In
fact, Section 20 enables the court to consider and
determine the juvenility of a person even after conviction
by the regular court and also empowers the court, while
maintaining the conviction, to set aside the sentence
imposed and forward the case to the Juvenile Justice
Board concerned for passing sentence in accordance with
the provisions of the Juvenile Justice Act, 2000."
23. It is clear, therefore, that the Juvenile Act is intended to protect the
juvenile from the rigours of a trial by a criminal court. It prohibits
sentencing of a juvenile and committing him to prison. As its
Preamble suggests it seeks to adopt a child-friendly approach in the
adjudication and disposition of matters in the best interest of children
and for their ultimate rehabilitation."
(Emphasis supplied)
98. After noting the above principles, so far as the facts of Kalu @ Amit (Supra)
are concerned, the Supreme Court observed as follows:-
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 60
"24. The instant offence took place on 7/4/1999. As we have already
noted Kalu @ Amit was a juvenile on that date. He was convicted by
the trial court on 7/9/2000. The Juvenile Act came into force on
1/4/2001. The appeal of Kalu @ Amit was decided by the High Court
on 11/7/2006. Had the defence of juvenility been raised before the High
Court and the fact that Kalu @ Amit was a juvenile at the time of
commission of offence had come to light the High Court would have
had to record its finding that Kalu @ Amit was guilty, confirm his
conviction, set aside the sentence and forward the case to the Board
and the Board would have passed any appropriate order permissible
under Section 15 of the Juvenile Act (See Hari Ram).
25. As noted above, the Board could have sent Kalu alias Amit to a
special home for a maximum period of three years and under Section
19, it would have made an order directing that the relevant record of
conviction be removed. Since on the date of offence, Kalu alias Amit
was about 17 years, 5 months and 23 days of age, he could have been
directed to be kept in protective custody for 3 years under the proviso to
Section 16 as the offence is serious and he was above 16 years of age
when the offence was committed. But he certainly could not have been
sent to jail. Since the plea of juvenility was not raised before the High
Court, the High Court confirmed the sentence which it could not have
done. None of the above courses can be adopted by us, at this stage,
because Kalu alias Amit has already undergone more than 9 years of
imprisonment. In the peculiar facts and circumstances of the case,
therefore, we quash the order of the High Court to the extent it
sentences accused Kalu alias Amit to suffer life imprisonment for the
offences under Section 302 read with Section 34 IPC. After receipt of
report from the Additional Sessions Judge, Rewari, vide order dated 14-
12-2009, we had ordered that Kalu alias Amit be released on bail. If he
has availed of the bail order, his bail bond shall stand discharged. If he
has not availed of the bail order, the prison authorities are directed to
release him forthwith, unless he is required in some other case. Accused
Kalu alias Amit shall not incur any disqualification because of this
order. Criminal Appeal No. 1467 of 2007 filed by the accused Kalu
alias Amit is allowed to the above extent."
(Emphasis by us)
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 61
Even in Kalu @ Amit (Surpa), the Court did not quash the conviction. Kalu
@ Amit had the benefit of consideration of his appeal against the conviction by the
High Court.
99. Section 20 mandates the criminal court to continue with the trial as if the JJ
Act "had not been passed; if the criminal court finds that the juvenile has
committed an offence, "it shall record such finding; thereafter "instead of passing
any sentence in respect of the juvenile; forward the juvenile to the Juvenile Justice
Board which shall pass an order in respect of that juvenile. So far as manner in
which the Board would consider the matter is concerned, Section 20 mandates that
the Juvenile Justice Board shall pass an order in respect of that juvenile in
accordance with the provision of the JJ Act "as if it had been satisfied on an
inquiry" under the Act that a juvenile had committed an offence.
100. In Kalu @ Amit v. State of Haryana (supra), the Supreme Court had
mandated that if the plea of juvenility is raised at the appellate stage before the
High Court, it would have to record its findings on merits and decide on the guilt
or innocence of the appellant. However, upon confirming the conviction, the
sentence has to be set aside and the case has to be forwarded to the Juvenile Justice
Board for passing an order permissible under Section 15 of the JJ Act.
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 62
X. Discussion in the present Case
101. From the above narration, it is evident that the prohibition upon the court
trying a juvenile for commission of an offence is absolute. There is no option but
to deal with the juvenile in accordance with the provisions of the Juvenile Justice
Act. Failure to do so would be contrary to specific statutory provisions and result
in violation of statutory provision and denial of legal protections to the juvenile.
102. In the instant case, the trial judges proceeded with the trial oblivious of the
fact that juveniles were arraigned before them and that they were not authorized to
conduct such trials. The JJ Act on the other hand had taken away the jurisdiction
of the court to conduct the trials.
103. The right to appeal against the findings and sentence of the criminal court
are provided by Section 374 of the Code of Criminal Procedure. No statutory
provision has been pointed out whereby such a right has been taken away.
This court is seized of such statutory appeals filed by the appellants assailing
their convictions by the criminal courts.
104. Given the judicial pronouncements and the statutory provisions, the
appellants have been set at liberty. Three options are available - would it be proper
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 63
to hold that the appellants are to be denied their statutory right to challenge the
judgments convicting them on merits or is the trial to be held to be without
jurisdiction or can we test the appeal on merits?
105. In the cases before the Supreme Court wherein the conviction was sustained,
challenges were laid to the judgments of the High Courts in appeals against
convictions. Thus, orders of conviction by the trial court had been challenged
before the High Court which convictions by the trial courts stood tested and
sustained by the High Courts.
106. It is also necessary to bear in mind that under Rule 3(IX), the legislature has
mandated that it is not open to a „juvenile in conflict with law‟ by himself or by the
competent authority, or anyone acting or claiming on his or her behalf to waive any
of the rights conferred under the statute. At this stage, reference can usefully be
made to some of the judicial pronouncements placed before us.
107. We may at this stage also refer to Section 20 of the JJ Act which has been
set out hereinabove. This provision is restricted in its applicability to proceedings
in respect of a juvenile pending in any court, in any area, on the date on which this
Act comes into force in that area. The legislature has mandated that such
proceedings would continue in that court as if the Act had not been passed and if
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 64
the court finds that the juvenile has committed an offence, it shall record such
finding and instead of passing any sentence in respect of the juvenile, forward the
juvenile to the Board which shall pass orders in respect of the juvenile in
accordance with the provisions of this Act as if it had been satisfied on inquiry
under the Act that 'a juvenile' has committed the offence'. By virtue of Section 20,
in cases against juveniles pending before criminal courts on the date the enactment
came into force, the legislature itself permits completion of the juveniles‟ trial
before the regular court. The principle as statutorily prescribed, say by the
Bangladesh Statute noticed above, that in view of the JJ Act, the trial would be
rendered as being without jurisdiction, is therefore not applicable in absolute terms.
108. Keeping in view the scheme of the statute, as well as the spirit, intendment
and purpose of the legislation, the trial of the juvenile in these circumstance before
the criminal court cannot be faulted.
109. From the above discussion, it is quite clear that once a plea of juvenility is
raised in an appeal against conviction before the High Court, the course to be
followed by the High Court is clear. The High Court is required to cause the
inquiry in terms of Section 7(A) of the JJ Act to give a finding upon the
correctness of the plea of juvenility to be conducted. The High Court also has to
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 65
examine the legality and validity of the conviction of the juvenile. In case the
High Court concludes that the juvenile is innocent and accepts the appeal, the order
on sentence is automatically quashed. However in case the High Court maintains
the conviction, the sentence is required to be suspended and the matter sent to the
Juvenile Justice Board for passing an order on sentence as well as the order under
Section 19 of the JJ Act.
110. However, this might not be feasible in all cases. There is an important
circumstance which needs bearing in mind. How is the High Court to proceed if at
the stage when the plea is raised or when the appellate court is passing the order,
the appellant has undergone sentence beyond the maximum prescribed under the
Juvenile Justice Act, 2000? In such eventuality is it still necessary to send the
matter to the Juvenile Justice Board for consideration of sentence and passing
order under Section 15 of the Juvenile Justice Act?
111. In this regard it is also necessary to refer to Sub Section 2 of Section 6 which
empowers the High Court and the Court of Session to exercise all powers
conferred on the Juvenile Justice Board when examining an appeal revision of
otherwise. The courts thus stand empowered to pass such orders qua the person
asserting a plea of juvenility on the date of the offence, prescribed under Section
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 66
15 of the JJ Act, of course bearing in mind the age of the person and sentence
already undergone by him.
112. Therefore if the conviction is maintained, then the Appellate Court would
also examine the facts and circumstances of the case, and if deemed appropriate
refer the juvenile appellant to the Juvenile Justice Board for consideration of the
sentence. However, if the appellant has ceased to be a juvenile on the date of
consideration of the sentence, that is, he has crossed 18 years - the maximum age
for which he/she could be lodged in the special home or if the appellant has already
undergone a sentence equal to or more than that prescribed under the Juvenile
Justice Act, then the court while setting aside the sentence would be required to
mould relief appropriately.
113. The first question framed for consideration by us in the opening part of this
judgment is answered thus.
XI. Removal of disqualification attached to the conviction- power of appellate
court?
114. We now turn to the consequential question arising from the above. The
Juvenile Justice Act provides removal of disqualification attached to the conviction
upon a juvenile as a statutory right under Section 19 of the JJ Act. The JJB is
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 67
mandatorily required to make an order directing that the relevant records of the
conviction shall be removed after expiry of the period of appeal or such reasonable
period as may be prescribed under the rules.
115. The above narration would also show that in Kalu @ Amit v. State of
Haryana (supra) the Supreme Court was of the view that given the fact that Kalu
@ Amit had already undergone more than 9 years of imprisonment, it would not be
appropriate to send the matter back to the Juvenile Justice Board. The Supreme
Court upheld the conviction (which had been sustained by the High Court) and
quashed the order of the High Court to the extent it sentenced Kalu @ Amit to
suffer life imprisonment. In these circumstances, the Supreme Court also directed
that the juvenile shall not incur disqualification as a consequence of the conviction.
116. Our attention is also drawn on the two High Court cases of relevance in
relation to removal of disqualification. In both these cases, the High Courts
themselves passed order Section 19, instead of referring the matter to the relevant
Juvenile Justice Board. In a case reported at (2012) Cri.L.J. 759 Ranjeet Kumar
Jha v. State of Bihar, the Patna High Court found the appellant to be a juvenile. It
upheld the conviction, and set aside the sentence. It also ordered that the juvenile
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 68
shall not suffer disqualification, if any, attached to the conviction. This was in
accordance with Section 19 of the Juvenile Justice Act.
117. While considering this issue in Criminal Appeal No.365/2010, decided on
22nd November, 2012 H C Sharma d/o Chand Pasha v. State of Karnataka, the
Karnataka High Court was faced with a situation where a prayer was made before
it to erase the disqualification that would arise because of conviction. The
appellant in that case had been convicted of offences under the Indian Penal Code,
as well as the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)
Act, 1989. The Court upheld the conviction, and suspended the sentence. The court
took note of Section 19 of the Juvenile Justice Act and ruled that the conviction
shall not result in any disqualification.
118. The statutory provision does not state that the responsibility to enforce this
statutory right is only upon the Board. As per Section 19(2), the Board only
ensures the implementation of the statutory right by ordering removal of records.
The High Court is as much under an obligation to uphold the right, as is the Board.
On contrary Section 6(2) specifically reiterates the jurisdiction of the High Courts
as well as Sessions Courts to pass all orders which the JJB stands statutorily
empowered to do so. The High Court therefore also empowered to pass orders for
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 69
removal of disqualification attaching as a result of the conviction as well as
destruction of records which the JJB is statutorily mandated to do under Section 19
of the JJ Act.
119. We may note that this situation could arise not only in appeals against
conviction by the criminal courts in serious offences which are placed before the
Division Bench of the High Court as in the present case, but could very well arise
in any appeal against the convictions as well as criminal revision before the learned
Single Judge. Given the enunciation of law in Hari Ram v. State of Rajasthan &
Anr.( Supra), the plea can be raised in revisions and appeals before the Sessions
Courts as well . The dicta laid down by the Supreme Court and the statutory
position crystallized by us hereinabove would apply to all appeals and revisions
before the learned Single Judge of the High Court as well as in all proceedings
before the Sessions Courts as well.
The second question, which was noticed by us in the opening part of this judgment,
also stands answered thus.
XII. Duty of the Trial Court
120. We find in several of these cases that the plea of juvenility is raised in
appeals before us after the person concerned may have undergone a long period of
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 70
incarceration which would have had an irreversible impact on his/her life as well as
personality.
121. What is the primary duty of the trial court then? In this regard, the
observations of the Supreme Court in para 13 of the judgment reported at 1984
(Supp) SCC 226 Gopinath Ghosh v. State of West Bengal made as back as in the
year 1984 deserve to be noticed in extenso and read thus :-
"13. ........... Ordinarily this Court would be reluctant to entertain a
contention based on factual averments raised for the first time before it.
However, the Court is equally reluctant to ignore, overlook or nullify the
beneficial provisions of a very socially progressive statute by taking shield
behind the technicality of the contention being raised for the first time in this
Court. A way has therefore, to be found from this situation not conducive to
speedy disposal of cases and yet giving effect to the letter and the spirit of
such socially beneficial legislation. We are of the opinion that whenever a
case is brought before the Magistrate and the accused appears to be aged
21 years as below, before proceeding with the trial or undertaking an
inquiry, an inquiry must be made about the age of the accused on the date
of the occurrence. This ought to be more so where special acts dealing
with juvenile delinquent are in force. If necessary, the Magistrate may
refer the accused to the Medical Board or the Civil Surgeon, as the case
may be, for obtaining credit worthy evidence about age. The Magistrate
may as well call upon accused also to lead evidence about his age.
Thereafter, the learned Magistrate may proceed in accordance with law.
This procedure, if properly followed, would avoid a journey upto the Apex
Court and the; return journey to the grass-root court. If necessary and
found expedient, the High Court may on its administrative side issue
necessary instructions to cope with the situation herein indicated."
(Emphasis by us)
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 71
122. In the judgment reported at 1995 Supp.(4) SCC 419 Pradeep Kumar v. State
of U.P. and connected appeals, the observations of the court in para 18 so far as the
mandatory requirement of holding an inquiry especially by the High Courts and
subordinate courts also deserve to be considered in extenso and read as follows :-
"18. Before parting with this judgment, we would like to reemphasis that
when a plea is raised on behalf of an accused that he was a "child" within the
meaning of the definition of the expression under the Act, it becomes
obligatory for the court, in case it entertains any doubt about the age as
claimed by the accused, to hold an inquiry itself for determination of the
question of age of the accused or cause an enquiry to be held and seek a
report regarding the same, if necessary, by asking the parties to lead
evidence in that regard. Keeping in view the beneficial nature of the socially
oriented legislation, it is an obligation of the court where such a plea is
raised to examine that plea with care and it cannot fold its hands and without
returning a positive finding regarding that plea, deny the benefit of the
provisions of an accused. The court must hold an enquiry and return a
finding regarding the age, one way or the other. We expect the High Courts
and subordinate courts to deal with such cases with more sensitivity, as
otherwise the object of the Acts would be frustrated and the effort of the
Legislature to reform the delinquent child and reclaim him as a useful
member of the society would be frustrated. The High Courts may issue
administrative directions to the subordinate courts that whenever such a
plea is raised before them and they entertain any reasonable doubt about
the correctness of the plea, they must as a rule, conduct an inquiry by
giving opportunity to the parties to establish their respective claims and
return a finding regarding the age of the concerned accused and then deal
with the case in the manner provided by law."
(Emphasis supplied)
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 72
Thus, the Supreme Court has held that if a plea of juvenility is raised before
the court, it is the obligation of the court to mandatorily hold an inquiry and return
a finding regarding the age in one way or the other. The court has also reiterated
its earlier directions to the High Court issuing administrative directions to the
subordinate courts with regard to such pleas.
123. It is, therefore, well settled that it is the duty of the Magistrate to conduct an
inquiry about the age of an accused whenever a case is brought before the
Magistrate. The Supreme Court has held that the trial court is not required to await
an application taking the plea that the accused is juvenile from the accused or the
State. On the contrary, the inquiry is required to be undertaken as soon as it
appears to the court from the physical appearance of the accused when he is
produced before it that he may be a juvenile.
This duty also enjoins the Sessions Courts conducting trials as well as
appeals, revisions to conduct such inquiry when cases are brought before it.
124. We find that this directive of the Supreme Court is being unfortunately
completely ignored. We have not come across a single case where the trial court
has undertaken a suo motu inquiry. There are instances when convicts were
produced before us even at the appellate stage, after several years in the court
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 73
system, their physical appearance still suggested that they were juveniles on the
date of the offence. Our impression were confirmed upon the suo motu inquiry
directed by us. By then the appellants, juveniles at the time of offence have
undergone long year‟s incarceration. Irreversible damage may have resulted to the
juveniles.
125. Ashok Kumar @ Ganja (one of the respondents in Death Reference
No.5/2010) is one such person. Our doubt from his physical appearance that he
may have been as juvenile on the date of the offence was confirmed in the medical
examination.
126. The directions by the Supreme Court bind every court. The mandate of the
law too requires strict compliance. This is more so in the context of social welfare
legislation as the erstwhile Children Act of different states, and now, the Juvenile
Justice Act. Apart from the resultant prejudice to the welfare of a juvenile who is
subjected to a criminal trial in violation of the law, there is an unnecessary drain on
scarce judicial resources. Valuable judicial time is expended on proceedings
which are without jurisdiction at not only the trial court level but at the appellate
stage as well. These apprehensions find articulation by the Supreme Court in the
judgment rendered in Gopinath Ghosh (Supra).
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 74
127. We therefore, emphasize the duty of the trial courts to ensure that an inquiry
in accordance with the provisions of the JJ Act, 2000 is undertaken at the earliest
when an accused brought before it appears to be of 18 years or below.
128. In Hari Ram v. State of Rajasthan (supra) certain observations of the
Supreme Court, with regard to questions which were fundamental to the
understanding and implementation of the object with which the JJ Act, 2000 was
enacted, deserve to be considered in extenso and reads thus:-
"2. The said law which was enacted to deal with offences
committed by juveniles, in a manner which was meant to be different
from the law applicable to adults, is yet to be fully appreciated by
those who have been entrusted with the responsibility of enforcing
the same, possibly on account of their inability to adapt to a system
which, while having the trappings of the general criminal law, is,
however, different therefrom.
3. The very scheme of the aforesaid Act is rehabilitatory in nature
and not adversarial which the courts are generally used to. The
implementation of the said law, therefore, requires a complete
change in the mindset of those who are vested with the authority of
enforcing the same, without which it will be almost impossible to
achieve the objects of the Juvenile Justice Act, 2000."
129. The Statement of Object and reasons of the JJ Act, 2000 records the
legislature's concerns with the much greater attention that is required to be given to
children in conflict with law as well as those in need of care and protection. The
justice system as available for adults is not considered suitable for being applied to
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 75
a juvenile or the child or any one on their behalf, including the police, voluntary
organizations, social workers, or parents and guardians, throughout the country.
130. Article 40 of the United Nations "Convention on the Rights of the Child"
enjoins on state parties to take certain actions with regard to children against whom
there may be allegations of infringing penal laws. The relevant extract of Article
40 in this regard reads as follows:-
"Article 40
1. States parties recognise the right of every child alleged as,
accused of, or recognised as having infringed the penal law to be
treated in a manner consistent with the promotion of the child‟s sense
of dignity and worth, which reinforces the child‟s respect for the
human rights and fundamental freedoms of others and which takes
into account the child‟s age and the desirability of promoting the
child‟s reintegration and the child‟s assuming a constructive role in
society.
2. To this end, and having regard to the relevant provisions of
international instruments, States Parties shall, in particular, ensure
that:
(a) No child shall be alleged as, be accused of, or recognised as
having infringed the penal law by reason of acts or omissions that
were not prohibited by national or international law at the time they
were committed;
xxxx
3 States Parties shall seek to promote the establishment of laws,
procedures, authorities and institutions specifically applicable to
children alleged as, accused of, or recognised as having infringed the
penal law, and, in particular:
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 76
(a) The establishment of a minimum age below which children
shall be presumed not to have the capacity to infringe the penal
law...;"
Children‟s legislations are the result of the State‟s concern about these
issues.
131. The Constitution of India places the primary responsibility on the State of
ensuring that all needs of the children are met with and their basic human rights are
fully protected. As a result, the Juvenile Justice Act of 1986 was enacted to
provide neglected or delinquent juveniles the due care, protection, treatment,
development and rehabilitation for adjudication of certain matters relating to and
disposition of delinquent juveniles. In order to confirm to the set of standards for
securing the best interest of the child, the Government of India re-enacted the
existing statutes to give effect to the aforenoticed international instruments and
enacted the Juvenile Justice (Care & Protection of Children) Act of 2000.
132. The importance of a prompt determination of juvenility is not only in the
interest of the juveniles but has a deep impact on society inasmuch as efforts of
reform are made. Public employment require disclosure of implications in cases,
arrest, conviction, sentence etc. at the time of recruitment. Section 19 refers to
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 77
removal of disqualification attaching to conviction of offence enabling juveniles
who may have been in conflict with law, to thus seek public employment.
133. In this background, in failing to abide by the statutory mandate and the
directions of the Supreme Court, the trial courts are failing to discharge
constitutional duties as well as responsibility in public law of ensuring the best
interest of a child in conflict with law. The District Judges concerned shall ensure
that the directions of the Supreme Court as well as the observations made by us
which are extracted by us (in para 118 to 131) are complied with.
XIII. Result
134. In the cases before us, such pleas have been taken in appeals against award
of life sentences and even death sentences as detailed above. We suo moto caused
inquiry in respect of two persons who stood sentenced to death. We have found
them to be juveniles on the date of offences after conducting the inquiries in
respect of their ages.
135. It is noteworthy that so far as Amar Bhadur Thapa, Ravinder, Sheela, Jagtar
and [email protected] Ganja are concerned, they have undergone imprisonment much
beyond the maximum period of permissible detention of three years under the
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 78
Juvenile Justice (Care and Protection) Act, 2000. It would therefore, be
impermissible to deprive such persons of their liberty, after having undergone
confinement beyond the three years permitted by the J.J. Act. In any case, all the
persons with whom we are concerned in these cases are over 18 years of age now
and cannot be lodged in the special homes.
136. We find that Imran Khan has undergone imprisonment of only 2 years, 2
months and 9 days as on 24th December, 2010. The JJ Act prohibits sentence of
imprisonment absolutely. The maximum that can be ordered under Section 15 of
the JJ Act against a juvenile is a direction that the juvenile be sent to special home
for completing the period of three years of detention. So far as Imran Khan is
concerned, such a course may be available. However, as on 24th December, 2010,
when his case of juvenility was considered , Imran Khan had completed 24 years
of age. Therefore, it would not be permissible to send him to a special home where
only juveniles are kept.
137. It is noteworthy that Sheela, Jagtar and Ashok @ Ganja (respondents in
Death Sentence Reference No.5/2010) have not filed appeals assailing their
conviction by the judgment dated 29th November, 2010 in Sessions Case
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 79
No.123/2008. This court has accepted the plea in the reference of their having
been juveniles on the date of the occurrence.
138. In this background, keeping in view the above discussion and our answer to
the questions under consideration, it is directed that the appeals of the appellants
are required to be considered on merits. In case this court upholds the judgment of
the trial court whereby the appellants have been found guilty of commission of
offence, appropriate orders with regard to the sentence as well as removal of
disqualification in accordance with Section 19 of the JJ Act would require to be
passed.
139. In view of the above discussion, Sheela, Jagtar and Ashok @ Ganja
(respondents in Death Sentence Reference No.5/2010) are entitled to an
opportunity to file appeals against their conviction for which purpose they would
require to be informed of the directions of this court.
140. We make it clear that by this judgment, we do not preclude any of the
appellants from withdrawing the appeal or challenge to the judgment whereby they
have been convicted by the trial court. A considered submission in this regard
would be made by the appellants before the court hearing the appeal which would
then pass appropriate orders permitting the withdrawal of the appeal.
Death Sentence Ref.No.5/2010, Crl.A.Nos.979/2008, 1087/2010 & 1301/2010 80
141. Given the nature of the question considered and the anguish expressed by
the Supreme Court on the failure of trial courts to suo moto take action with regard
to determination of juvenility of accused persons, we direct the Registrar General
to send copies of the judgment to all District and Sessions Judges for circulation to
all judges for information and compliance. The trial courts shall ensure strict
compliance with the observations and directions of the Supreme Court and this
court noted by us from paras 118 to 131 above.
(GITA MITTAL)
JUDGE
(J.R. MIDHA)
JUDGE
AUGUST 1st, 2014
mk
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