Jayavel vs The State, The Addl. Director General of Prisons, The Superintendent and The Inspector of Police

P. Devadass, J.—Petitioner, Jayavelu, a lifer, now lodged in Central Prison, Vellore, seeks his release from jail, on the ground that on the

date when the offence was committed, he was a juvenile in conflict with law. In Kasimedu, Chennai, Prabhu and Raghu were illicit drug dealers.

There was business rivalry between them. On 30.6.1992, at about 11.30 a.m., in Kasikuppam, in Kasimedu, Prabhu, petitioner Jayavelu and

others have stabbed Raghu to death. N-2, Kasimedu Police registered a case in Cr. No. 2409 of 1992 u/s 302 and certain other sections of

Indian Penal Code. A1 to A8 were prosecuted before the learned IV Additional Sessions Judge, Chennai in Sessions Case in S.C. No.

213/1994. Among them, Jayavelu is A2. Ultimately, A8 was acquitted and A1 to A7 were sentenced to life u/s 302 r/w 149 I.P.C. Aggrieved, the

convicted persons have appealed to this Court in Crl. A. No. 244 of 1995. On 1.10.2002, a Division Bench of this Court dismissed their appeal

and confirmed the conviction and sentences. In the Hon''ble Supreme Court, petitioner filed SLP and Crl. M.P. No. 5181 of 2003 to condone the

delay. However, on 10.7.2003, they were dismissed.

Mr. P. Kumaresan, learned counsel for the petitioner submits that the petitioner was born on 3.1.1976, on the date of commission of the

offence, namely, 30.6.1992, he was 16 years, 5 months and 27 days old, as per Section 2(l) r/w 2(k) of the Juvenile Justice (Care and Protection

of Children) Act, 2000, he is a ""juvenile in conflict with law"" and as such as per its Section 15, he cannot be sentenced to life and now he is 37

years old and he is in jail for more than 14 years, so, he may be set at liberty. In support of his submissions, Mr. P. Kumaresan, read to us several

provisions of the said Act and also certain decisions on the point.

Mr. A.N. Thambidurai, learned Additional Public Prosecutor would submit that till the disposal of the SLP by the Hon''ble Supreme Court,

petitioner did not raise such a plea. Mr. Thambidurai pointed out that first of all, the petitioner must establish that at the time of commission of the

offence petitioner was a juvenile in conflict with law.

In Pratap Singh Vs. State of Jharkhand and Another, as regards the Juvenile Justice Legislation, the Honourable Supreme Court observed as

under:-

The purpose of the Juvenile Justice Legislation is to provide succor to the children who were being incarcerated along with adults and were

subjected to various abuses. It would be in the fitness of things that appreciation of the very object and purpose of the legislation is seen with a

clear understanding which sought to bring relief to juvenile delinquents.

In Hari Ram Vs. State of Rajasthan and Another, as regards Juvenile Justice Legislation, the Honourable Apex Court observed as under:-

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 mind-set 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.

As indicated in the very beginning of this judgment, the Juvenile Justice Act, 2000, was enacted to deal with offences allegedly committed by

juveniles on a different footing from adults, with the object of rehabilitating them. The need to treat children differently from adults in relation to

commission of offences had been under the consideration of the Central Government ever since India achieved independence. With such object in

mind, Parliament enacted the Juvenile Justice Act, 1986, in order to achieve the constitutional goals contemplated in Articles 15(3), 39(e) and (f),

45 and 47 of the Constitution imposing on the State a responsibility of ensuring that all the needs of children are met and that their basic human

rights are fully protected.

Subsequently, in keeping with certain international Conventions and in particular the Convention on the Rights of the Child and the United

Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985, commonly known as the Beijing Rules, the Legislature enacted

the Juvenile Justice (Care and Protection of Children) Act, 2000...

In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, a three-Judge Bench of the Hon''ble Supreme Court while referring to the

object behind the New J.J. Act, 2000 observed as under:

The 1986 Act was replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short"" the 2000 Act""). The 2000 Act has

been enacted to carry forward the constitutional philosophy engrafted in Articles 15(3), 39(e) & (f), 45 and 47 of the Constitution and also

incorporate the standards prescribed in the Convention on the Rights of the Child, United Nations Standard Minimum Rules for the Administration

of Juvenile Justice, 1985, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990) and all other relevant

international instruments.

On 7.4.2013, in New Delhi, in the conference of Chief Ministers and Chief Justices of the High Courts, Hon''ble Mr. Justice Altamas Kabir,

Chief Justice of India, who authored the judgment in the celebrated Hari Ram Vs. State of Rajasthan and Another, while stressing the need to

strengthen the Juvenile Justice System said that ""the country could face chaos if it did not provide adequate protection and care to children,

especially those in conflict with law. Juvenile Justice System was the result of great deal of thinking by nations across the world and has to be

implemented in letter and sprit. The Juvenile Justice (Care and Protection of Children) Act, 2000 deals with protection and care of children who

are in conflict with law and are generally not from the elite society."" [See THE NEW INDIAN EXPRESS dated 8.4.2013]

In Om Prakash Vs. State of Rajasthan and Another, the Hon''ble Supreme Court observed as under:-

It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years

on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled for this special protection

under the Juvenile Justice Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under

the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the

courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the

administration of justice. Hence, while the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual

molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to

prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority...

A three-Judge Bench of the Hon''ble Supreme Court in Pawan Vs. State of Uttaranchal, emphasized the need for satisfactory, adequate and

prima facie material before ordering enquiry to determine the age of the claimant.

In ABUZAR HOSSAIN (supra), the Hon''ble Apex Court observed as under:-

Where the materials placed before the Court by the accused, prima facie, suggested that he was a juvenile in conflict with law on the date of

occurrence, then it was necessary to call for a report or order an enquiry to be made or order for determination of the age on the date of the

incident. However, where plea of juvenility is found scrupulous or the materials lack credibility or do not inspire confidence even prima facie

satisfaction of the court is not made out, further exercise in this regard may not be required. In the absence of adequate material, any further

enquiry into juvenility would not be required.

In the circumstances, on 7.3.2012, this Court directed the IV Additional Sessions Judge, Chennai to conduct enquiry to determine the age of

the petitioner, on the date of occurrence, namely, on 30.6.1992. Accordingly, enquiry report was submitted. On 1.7.2012, we have directed

further enquiry. Thereafter, after further enquiry, on 14.8.2012, the Inquiring Judge submitted his report.

We have anxiously considered the submissions made by both sides, perused petitioner''s affidavit and the Report of the Inquiring Judge, the

several provisions of Juvenile Justice Act, 1986 (shortly, hereinafter, Old J.J. Act, 1986) and the Juvenile Justice (Care and Protection of Children)

Act, 2000 (shortly, hereinafter, the New J.J. Act, 2000) as amended by Act No. 33 of 2006 and several decisions on Juvenile Justice Legislation.

A child, juvenile, a young person, who commits a crime should not be treated on par with adult offenders. The mental frame of a juvenile, who

commits a ''delinquent act'' is different from the mental element of an adult accused. So, necessarily they have to be treated differently.

Till 1986, each State had its own enactment to deal with ''juvenile delinquency''. In 1986, Juvenile Justice Act, 1986, a uniform Central Act

was passed. This is a major enactment in this field. It was replaced by the current Act, namely, the Juvenile Justice (Care and Protection of

Children) Act, 2000. It came into being with effect from 1.4.2000. Certain important provisions were added to it by Amendment Act No.

33/2006.

In Section 2(h) of the Old J.J. Act, 1986 different age limit has been prescribed for male and female juveniles. Under the Old Act, a male, who

is below 16 years of age and a female, who is below 18 years of age are Juveniles. However, the New J.J. Act, 2000 has removed this age

disparity. As per its Section 2(k), a uniform age, namely, below 18 years has been prescribed both for the male and female Juveniles. As per

Section 2(l) of the New J.J. Act, 2000, a Juvenile when commits a crime becomes a ''Juvenile in conflict with law''. A Juvenile with a ''deviant

behaviour'', namely, a delinquent Juvenile, under the New J.J. Act, 2000 is a ''juvenile in conflict with law''. Whatever might be the nature of the

offence committed by a Juvenile, he cannot be tried before a regular Court. He cannot be tried along with adult accused (see Section 18). The

''delinquency'' of a Juvenile is to be enquired into by a specially constituted ''Juvenile Justice Board'' composed of persons having expertise in child

welfare and child psychology (see Sections 4, 5 and 14). Whatever might be the nature of the offence, whether bailable or non-bailable, bail is the

rule and detention in an Observation Home is the exception (see Sections 12 and 8). No death sentence or life sentence could be awarded to a

Juvenile in conflict with law, he cannot be kept in a prison for default in payment of fine or in default of furnishing security (see Section 16,). No

security bond for keeping good behaviour and peace shall be obtained from him (See Section 17 of the Act and Chapter VIII, Cr. P.C.). At the

most, he can be detained in a Special Home up to three years. In no case he shall be jailed along adult accused. (see Sections 15, 9). Instead of

awarding him punishment various kinds of rehabilitative measures also have been prescribed in the Act (see Section 15). Conviction under J.J. Act

is not a disqualification. (See Section 19). Details of juvenile shall not be published in any media (See Section 21). Injuring a juvenile is punishable

(See Section 23).

J.J. Act is a child oriented, child-friendly and a piece of Welfare Legislation containing various beneficial measures for the rehabilitation of

young persons having deviant behaviour and it completely prohibits awarding them death sentence, life sentence and detention beyond 3 years.

In HARIRAM (supra), as regards the scheme under the New J.J. Act, 2000, the Hon''ble Supreme Court observed as under:-

As will, therefore, be clear from the provisions of the Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006 and the Juvenile

Justice Rules, 2007, the scheme of the Act is to give children, who have, for some reason or the other, gone astray, to realise their mistakes,

rehabilitate themselves and rebuild their lives and become useful citizens of society, instead of degenerating into hardened criminals.

Another kindred enactment intended to rehabilitate young offenders is Borstal Schools Act. In this State, it is Tamil Nadu Borstal Schools Act,

1925. As regards eligibility to claim benefit, rehabilitation and the correctional measures under the Act different parameters have been prescribed.

There is distinction between Juvenile Justice Act and Borstal Schools Act. J.J. Act is intended to deal with ''Juveniles in conflict with law''. A

Juvenile is one either male or female, below 18 years of age. The parallel enactment is Tamil Nadu Borstal Schools Act, 1925. Though their object

is same, they differ in their schemes. Under J.J. Act, the crucial date is ''date of commission of the offence''. But, under the Borstal Schools Act, ''it

is date of conviction''. Under J.J. Act, on the date when the offence was committed the ''juvenile in conflict with law'' must be ''below 18 years'',

whereas under the Borstal Schools Act, on the date of conviction the ''adolescent offender'' must be ''above 18 years but below 21 years''. Under

the J.J. Act, at the most, a Juvenile in conflict with law can be detained in a Special Observation Home up to 3 years whereas under the Borstal

Schools Act, an ''adolescent offender'' shall be kept in a Borstal School for not less than 2 years, but not more than 5 years but in no case beyond

23 years of his age (See S. VICTORIA Vs. INSPECTOR OF POLICE, THIRUVADANAI POLICE STATION, RAMANATHAPURAM

DIST. AND ANOTHER [2012 (2) MLJ (Crl.) 520 = 2012 (2) MWN (Cr.) 1 (D.B).

The most important aspect is the relevant date, the cut off date, to consider the eligibility of a juvenile in conflict with law to have the benefits

provided under the J.J. Act.

In Umesh Chandra Vs. State of Rajasthan, a three-Judge Bench of the Honourable Supreme Court while dealing with the case of a delinquent

child under the Rajasthan Children Act, 1970 held that the eligibility to claim benefit under the Act has to be decided on the date when the offence

was committed.

In Umesh Singh and Another Vs. State of Bihar, while dealing with the case of a delinquent child under the Bihar Children Act, 1970 the

Honourable Supreme Court followed UMESH CHANDRA (supra).

However, in Arnit Das Vs. State of Bihar, while dealing with the case of a juvenile under the Juvenile Justice Act, 1986, a two-Judge Bench of

the Honourable Supreme Court held that the relevant date to have the benefits under the said Act is the date on which the accused was brought

before the Court or the Juvenile Justice Board.

In UMESH CHANDRA (supra), it was held that the age of the accused on the date of commission of the offence is relevant, while in ARNIT

DAS (supra), it is the date of trial.

This controversy necessitated the constitution of a five-Judge Constitution Bench of the Honourable Supreme Court in Pratap Singh Vs. State

of Jharkhand and Another,

The Constitution Bench resolved the controversy and held that to have the benefit under the Juvenile Justice Act, 1986, the age of the accused

on the date of commission of the offence is relevant and thus overruled ARNIT DAS (supra). And thus, UMESH CHANDRA (supra) was

restored.

By the time when PRATAP SINGH (supra) came to be decided the New Juvenile Justice (Care and Protection of Children) Act, 2000 came

to be passed. As already stated it prescribed a uniform age limit of below 18 years both for male and female Juveniles. The Act was brought into

force with effect from 1.4.2001.

In the circumstances, in PRATAP SINGH (supra), the Constitution Bench also held that the provisions of the New J.J. Act, 2000 would be

applicable to cases initiated and pending for enquiry under the Old J.J. Act, 1986 provided the juvenile has not completed his 18 years of age as

on 1.4.2001.

Thus, PRATAP SINGH (supra) had excluded the application of New J.J. Act to the cases pending under the Old J.J. Act, 1986 in which the

juveniles have attained 18 years of age by 1.4.2001. The New J.J. Act, 2000 will not be applicable to the cases which were pending before the

enforcement of New J.J. Act, 2000, namely, 1.4.2001. So, as per PRATAP SINGH (supra), with respect to the cases under the Old J.J. Act,

1986, the New J.J. Act, 2000 has only retrospective operation.

In Bijender Singh Vs. State of Haryana and Another, and in Satbir Singh and Others Vs. State of Haryana, following the Constitution Bench

decision in PRATAP SINGH (supra) the Honourable Supreme Court held that the provisions of New J.J. Act, 2000 raising the age of male

Juvenile from 16 years to 18 years is applicable to the cases under Old J.J. Act, 1986, if the accused was below 18 years of his age as on

1.4.2001.

So, in order to cover the cases of juveniles, who are below 18 years of age at the time of commission of offence and have crossed 18 years of

their age, by 1.4.2001, it has become necessary to make suitable amendment in the New J.J. Act, 2000.

Thus, the fall out of PRATAP SINGH (supra) is the insertion of an Explanation to Section 20 and Section 7-A to the New J.J. Act, 2000

through the Amendment Act No. 33 of 2006.

It is apposite here to note the said Section 7A and Explanation to Section 20. They runs as under:-

Section 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 a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the

Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect.

(emphasis supplied by us)

Section 20. Special provision in respect of pending cases.-Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile

pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not

been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in

respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this

Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence:

Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the

interest of such juvenile.

Explanation:-- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in

any court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of section 2, even if the juvenile ceases to be so on or

before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes

and at all material times when the alleged offence was committed.

(emphasis supplied by us)

Even after the amendments, based on the earlier Constitution Bench decision in PRATAP SINGH (supra) some Courts have held that the

New J.J. Act, 2000 has only retrospective operation and did not apply the Act to those Juveniles who have attained 18 years of their age by

1.4.2001.

Then came the landmark Judgment of the Honourable Supreme Court in Hari Ram Vs. State of Rajasthan and Another, In this case, the effect

of the said amendments were specifically considered by the Honourable Supreme Court and the Court held as under:-

One of the problems which has frequently arisen after the enactment of the Juvenile Justice Act, 2000, is with regard to the application of the

definition of ""juvenile"" under Sections 2(k) and (l) in respect of offences alleged to have been committed prior to 1-4-2001 when the Juvenile

Justice Act, 2000 came into force, since under the 1986 Act, the upper age-limit for male children to be considered as juveniles was 16 years.

The question which has been frequently raised is, whether a male person who was above 16 years on the date of commission of the offence

prior to 1-4-2001, would be entitled to be considered as a juvenile for the said offence if he had not completed the age of 18 years on the said

date. In other words, could a person who was not a juvenile within the meaning of the 1986 Act when the offence was committed, but had not

completed 18 years, be governed by the provisions of the Juvenile Justice Act, 2000, and be declared as a juvenile in relation to the offence

alleged to have been committed by him?

... The proviso and the Explanation to Section 20 were added by Amendment Act 33 of 2006, to set at rest any doubts that may have arisen with

regard to the applicability of the Juvenile Justice Act, 2000, to cases pending on 1-4-2001, where a juvenile, who was below 18 years at the time

of commission of the offence, was involved.

...

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 (1) 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.

At this point it may be noted that the decision of the Constitution Bench in Pratap Singh Vs. State of Jharkhand and Another, was rendered at

a point of time when the amendments to Sections 2(l) and 20 and the introduction of Section 7-A had not yet been effected, nor was Rule 12 of

the 2007 Rules available.

Several decisions on the applicability of the 2000 Act to children who were above 16 but below 18 years on the date of commission of the

offence have been rendered after the Juvenile Justice Act, 2000, came into force and several others were rendered after the amendments were

introduced in the said Act by Amendment Act 33 of 2006 and the introduction of the 2007 Rules.

The decisions rendered by this Court and the High Courts prior to 1-4-2001, when the Juvenile Justice Act, 2000, came into force and

thereafter can, therefore, be divided into two groups. The decisions in Pratap Singh Vs. State of Jharkhand and Another, and Munney @ Rahat

Jan Khan Vs. State of U.P., fall into the first category, whereas the decisions in Jameel v. State of Maharashtra, [2007 (11) SCC 420:(2008)1

SCC (Cri) 748,] Vimal Chadha Vs. Vikas Choudhary and Another, 8 Scale 608], Babloo Pasi Vs. State of Jharkhand and Another, and Ranjit

Singh Vs. State of Haryana, fall into the second category.

Although the Constitution Bench decisions in Pratap Singh Vs. State of Jharkhand and Another, and Munney @ Rahat Jan Khan Vs. State of

U.P., are not really relevant since they have been rendered prior to 22-8-2006, when Amendment Act 33 of 2006 came into force, they assume a

modicum of significance since they have been referred to and relied upon even after the amending Act and the 2007 Rules came into force on 22-

8-2006 and 26-10-2007, respectively.

Of the decisions rendered after the amendments effected in 2006 to the Juvenile Justice Act, 2000, the first decision of note is that of Jameel

case, [2007 (11) SCC 420:(2008)1 SCC (Cri) 748,] rendered on 16-1-2007 wherein the amendments to the Act effected by Amendment Act

33 of 2006, which came into effect on 22-8-2006, were not even noticed.

The next decision rendered on 27-5-2008 is in Vimal Chadha Vs. Vikas Choudhary and Another, wherein, although the amendment of the

Act and the introduction of the Juvenile Justice Rules, 2007, were brought to the notice of the Court, the same were not considered and the

decision was rendered in the light of the decision rendered in Pratap Singh Vs. State of Jharkhand and Another, and other cases decided prior to

1-4-2001.

The next decision rendered on the same point on 11-9-2008 was the decision in Ranjit Singh case, [2008) (9) SCC 453: (2008)3 SCC

(Cri)784], wherein also the amendments to Sections 2(l) and 20 and the introduction of Section 7-A in the Juvenile Justice Act, 2000, and the

introduction of the 2007 Rules had not been considered and the decision passed sub silentio.

Similar was the situation in Babloo Pasi case [2009 (3) SCC (Cri.) 266] decided on 3-10-2008 which basically dealt with Section 49 of the

Juvenile Justice Act, 2000 and Rule 22 of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003, which is pari materia with

Rule 12 of the 2007 Rules. While deciding the said case, the Hon''ble Judges did not also have occasion to consider the amendments effected to

the Juvenile Justice Act, 2000, by the Amendment Act 33 of 2006 which had just come into force on 22-8-2006.

None of the aforesaid decisions are of much assistance in deciding the question with regard to the applicability of the definition of ""juvenile"" in

Sections 2(k) and 2(l) of the Juvenile Justice Act, 2000, as amended in 2006, whereby the provisions of the said Act were extended to cover

juveniles who had not completed 18 years of age on or before the coming into force of the Juvenile Justice Act, 2000 on 1-4-2001.

(emphasis supplied)

The effect of the proviso to Section 7-A introduced by the amending Act makes it clear that the claim of juvenility may be raised before any

court which shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions

contained in the Act and the Rules made thereunder which includes the definition of ""juvenile"" in Sections 2(k) and 2(l) of the Act even if the

juvenile had ceased to be so on or before the date of commencement of the Act.

(emphasis supplied)

The said intention of the legislature was reinforced by the amendment effected by the said amending Act to Section 20 by introduction of the

proviso and the Explanation thereto, wherein also it has been clearly indicated that in any pending case in any court the determination of juvenility

of such a juvenile has to be in terms of Section 2(l) even if the juvenile ceases to be so ""on or before the date of commencement of this Act"" and it

was also indicated that the provisions of the Act would apply as if the said provisions had been in force for all purposes and at all material times

when the alleged offence was committed.

...

Of the two main questions decided in Pratap Singh case 6, one point is now well established that the juvenility of a person in conflict with law

has to be reckoned from the date of the incident and not from the date on which cognizance was taken by the Magistrate. The effect of the other

part of the decision was, however, neutralised by virtue of the amendments to the Juvenile Justice Act, 2000, by Act 33 of 2006, whereunder the

provisions of the Act were also made applicable to juveniles who had not completed eighteen years of age on the date of commission of the

offence.

The law as now crystallised on a conjoint reading of Sections 2(k), 2(l), 7-A, 20 and 49 read with Rules 12 and 98, places beyond all doubt

that all persons who were below the age of 18 years on the date of commission of the offence even prior to 1-4-2001, would be treated as

juveniles, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act

and were undergoing sentence upon being convicted.

HARI RAM (supra) made clear the effect of the New J.J. Act, 2000 as amended by Act No. 33 of 2006. HARI RAM (supra) widened the

scope of New J.J. Act, 2000. In the light of Amending Act No. 33 of 2006, HARI RAM (supra) viewed the applicability of New J.J. Act, 2000

to the Juveniles, who have committed the offence, when they were below 16 years but, have subsequently crossed their 18 years of age on or

before 1.4.2001.

In HARIRAM (supra) it was held that if the Juvenile in conflict with law was below 18 years when the offence was committed and

subsequently he had crossed 18 years, it may be before 1.4.2001 or even on that day, still the juvenility can be claimed. So, the New J.J. Act,

2000 as amended by Act No. 33 of 2006 has retrospective operation to the offences committed before 1.4.2001.

So, the New J.J. Act, 2000 covers cases under the Old J.J. Act, 1986 even subsequent to the date of the offence when the juvenile in conflict

with law had crossed 18 years of his age. If a Juvenile, who has committed an offence, when he was below 18 years of his age, even after disposal

of his case, even after crossing his 18 years of age, as per Section 7A and Explanation to Section 20, can claim juvenility at any stage of the case,

trial, revision, appeal or in any other criminal proceedings. So, even if the case is over in the Trial Court or in the next Appellate Court or

Revisional Court or even in the Honourable Supreme Court, subsequently in an independent proceedings, for the first time, the ex-juvenile in

conflict with law can claim benefit under the New J.J. Act, 2000 based on his past juvenility on the date of his commission of the offence.

In Anil Agarwala and Another Vs. State of West Bengal, when the Calcutta High Court rejected the juvenility claimed by the accused as

belated the Honourable Supreme Court referring to Section 7A of the New J.J. Act, 2000 set aside the Judgment of the High Court, since it is

incompatible with the provisions of New J.J. Act, 2000 and held that the juvenility can be raised at any time even after the final disposal of the

case.

In Amit Singh Vs. State of Maharashtra and Another, the conviction and sentence recorded as against the appellant were confirmed by the

Bombay High Court and their SLP (Criminal) was dismissed by the Honourable Supreme Court and thereafter, the accused filed Habeas Corpus

Petition under Article 32 of the Constitution of India before the Honourable Supreme Court, in Writ Petition (Criminal) No. 16 of 2010 and for the

first time, claimed juvenility, the Honourable Supreme Court referring to HARI RAM (supra), accepted his claim and directed his release from

custody.

In the case before us, the IV Additional Sessions Court, Chennai sentenced the petitioner to life. In the Criminal Appeal filed by him, his life

sentence was confirmed by this Court. The SLP filed by him was dismissed by the Honourable Supreme Court. Thus, till the Honourable Supreme

Court the petitioner did not claim juvenility. Now, he filed this Habeas Corpus Petition under Article 226 of the Constitution of India claiming

juvenility for the first time in this Court. In the prior proceedings till the Honourable Supreme Court there was no occasion for any of the Court to

consider his juvenility. After the disposal of his SLP by the Honourable Supreme Court he claims juvenility for the first time in this Court in this Writ

proceedings. Merely because he has raised it at a belated stage, it cannot be rejected (see ANIL AGARWALA (supra).

In pursuance of the proviso to Section 7A and Explanation to Section 20 and as per the dictum of the Honourable Supreme Court in HARI

RAM (supra) and in AMIT SINGH (supra), he can claim juvenility in any proceedings, before any court and at any stage of the case. It includes, a

Habeas Corpus Petition under Article 226 of the Constitution of India. By its nature, it is also a criminal proceeding. Article 21, Constitution of

India guarantees that no one shall be jailed expect as per law. It also guarantees that no one shall be punished, detained in jail except in accordance

with law. So, no one shall be jailed as against the provisions of J.J. Act, more particularly, in violation of S. 15, 16 of New J.J. Act, 2000 (also see

S. 7A and S. 20, New J.J. Act, 2000). Thus, even after the final disposal of his case by the Honourable Supreme Court, in this independent

proceedings under Article 226 of the Constitution of India, petitioner can claim juvenility.

We have already seen that to claim the benefit under the New J.J. Act, 2000, on the date of commission of the offence, the accused must be

below 18 years. So, the determination of his age on the date of the commission of the offence, namely, 30.6.1992, is most important.

To determine the age, the New J.J. Act, 2000 and the 2007 Rules framed thereunder laid down elaborate guidelines.

Section 49 of New J.J. Act runs as under:-

Presumption and determination of age.-

(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose

of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose

shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not,

stating his age as nearly as may be.

(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom

the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before

it, shall for the purpose of this Act, be deemed to be the true age of that person.

Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 runs as under:-

Procedure to be followed in determination of Age:

... 3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or,

as the case may be, the Committee by seeking evidence by obtaining-

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

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

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

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board,

which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may

be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering

his/her age on lower side within the margin of one year...

Thus, procedure for ""Age determination inquiry"" has been clearly laid down under the provisions of New J.J. Act, 2000 and detailed

procedure has been prescribed in Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007. Yet, the subordinate courts are not

following them and are adopting different procedure. Recently, in Ashwani Kumar Saxena Vs. State of M.P., this has also been voiced by the

Hon''ble Supreme Court.

In ASHWANI KUMAR SAXENA (supra), the Hon''ble Apex Court observed as under:

Section 7-A, obliges the court only to make an inquiry, not an investigation or a trial, an inquiry not under the Code of Criminal Procedure, but

under the JJ Act. The criminal courts, Juvenile Justice Board, Committees, etc. we have noticed, proceed as if they are conducting a trial, inquiry,

enquiry or investigation as per the Code. The statute requires the court or the Board only to make an ""inquiry"" and in what manner that inquiry has

to be conducted is provided in the JJ Rules. Few of the expressions used in Section 7-A and Rule 12 are of considerable importance and a

reference to them is necessary to understand the true scope and content of those provisions. Section 7-A has used the expressions ""court shall

make an inquiry"", ""take such evidence as may be necessary"" and ""but not an affidavit"". The Court or the Board can accept as evidence something

more than an affidavit i.e. the Court or the Board can accept documents, certificates, etc. as evidence, need not be oral evidence.

Rule 12 which has to be read along with Section 7-A has also used certain expressions which are also be borne in mind. Rule 12(2) uses the

expression ""prima facie"" and ""on the basis of physical appearance"" or ""documents, if available"". Rule 12(3) uses the expression ""by seeking

evidence by obtaining"". These expressions in our view re-emphasize the fact that what is contemplated in Section 7-A and Rule 12 is only an

inquiry. Further, the age determination inquiry has to be completed and age be determined within thirty days from the date of making the

application; which is also an indication of the manner in which the inquiry has to be conducted and completed. The word ''inquiry'' has not been

defined under the JJ Act, but Section 2(y) of the JJ Act says that all words and expressions used and not defined in the JJ Act but defined in the

Code of Criminal Procedure, 1973 (2 of 1974), shall have the meanings respectively assigned to them in that Code.

Let us now examine the meaning of the words ""inquiry"", ""enquiry"", ""investigation"" and ""trial"" as we see in the Code of Criminal Procedure and

their several meanings attributed to those expressions. ""Inquiry"" as defined in Section 2(g) CrPC reads as follows:

(g) ''Inquiry'' means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;

The word ""enquiry"" is not defined under the Code of Criminal Procedure which is an act of asking for information and also consideration of some

evidence, may be documentary.

Investigation"" as defined in section 2(h), Cr. P.C. reads as follows:

(h) ''Investigation'' includes all the proceedings under this code for the collection of evidence conducted by a police officer or by any person

(other than a Magistrate) who is authorised by a Magistrate in this behalf.

The expression ""trial"" has not been defined in the Code of Criminal Procedure but must be understood in the light of the expressions ""inquiry"" or

investigation"" as contained in Sections 2(g) and 2(h) of the Code of Criminal Procedure.

The expression ""trial"" has been generally understood as the examination by court of issues of fact and law in a case for the purpose of

rendering the judgment relating to some offences committed. We find in very many cases that the Court/the Juvenile Justice Board while

determining the claim of juvenility forget that what they are expected to do is not to conduct an inquiry u/s 2(g) of the Code of Criminal Procedure,

but an inquiry under the JJ Act, following the procedure laid under Rule 12 and not following the procedure laid down under the Code.

The Code lays down the procedure to be followed in every investigation, inquiry or trial for every offence, whether under the Penal Code or

under other penal laws. The Code makes provisions for not only investigation, inquiry into or trial for offences but also inquiries into certain specific

matters. The procedure laid down for inquiring into the specific matters under the Code naturally cannot be applied in inquiring into other matters

like the claim of juvenility u/s 7-A read with Rule 12 of the 2007 Rules. In other words, the law regarding the procedure to be followed in such

inquiry must be found in the enactment conferring jurisdiction to hold the inquiry.

Consequently, the procedure to be followed under the JJ Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule

12 of the 2007 Rules. We cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an

inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the court exercising powers u/s 7-A of the Act. In

many of the cases, we have come across, it is seen that the criminal courts are still having the hangover of the procedure of trial or inquiry under the

Code as if they are trying an offence under the penal laws forgetting the fact that the specific procedure has been laid down in Section 7-A read

with Rule 12.

We also remind all Courts/Juvenile Justice Boards and the Committees functioning under the Act that a duty is cast on them to seek evidence

by obtaining the certificate, etc. mentioned in Rule 12 (3) (a) (i) to (iii). The courts in such situations act as a parens patriae because they have a

kind of guardianship over minors who from their legal disability stand in need of protection.

""Age determination inquiry"" contemplated u/s 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in

that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent

certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of

matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate

given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical

opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age

cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his

or her age on lower side within the margin of one year.

Once the court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards

such child or juvenile in conflict with law. It has been made clear in sub-rule (5) of Rule 12 that no further inquiry shall be conducted by the court

or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the Rule 12. Further,

Section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination.

Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in

service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth

certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be

correct. But Court, Juvenile Justice Board or a Committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go

behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those

documents or certificates are found to be fabricated or manipulated, the Court, the JJ Board or the Committee need to go for medical report for

age determination.

We have come across several cases in which trial courts have examined a large number of witnesses on either side including the conduct of

ossification test and calling for odontology report, even in cases, where matriculation or equivalent certificate, the date of birth certificate from the

school last or first attended, the birth certificate given by a corporation or a municipal authority or a panchayat are made available. We have also

come across cases where even the courts in the large number of cases express doubts over certificates produced and carry on detailed probe

which is totally unwarranted.

...

The Sessions Judge, however, has made a fishing inquiry to determine the basis on which date of birth was entered in the school register, which

prompted the father of the appellant to produce a horoscope. The horoscope produced was rejected by the Court stating that the same was

fabricated and that the Pandit who had prepared the horoscope was not examined. We fail to see what types of inquiries are being conducted by

the trial courts and the appellate courts, when the question regarding the claim of juvenility is raised.

The legislature and the rule-making authority in their wisdom have in categorical terms explained how to proceed with the age determination

inquiry. Further, Rule 12 has also fixed a time limit of thirty days to determine the age of the juvenility from the date of making the application for

the said purpose. Further, it is also evident from the Rule that if the assessment of age could not be done, the benefit would go to the child or

juvenile considering his/her age on lower side within the margin of one year.

This Court in Babloo Pasi Vs. State of Jharkhand and Another, held, in a case where the accused had failed to produce evidence/certificate in

support of his claim, medical evidence can be called for. The court held that: (SCC p.142, para 22)

22 ... The medical evidence as to the age of a person, though a useful guiding factor, is not conclusive and has to be considered along with other

cogent evidence.

This court set aside the order of the High Court and remitted the matter to the Chief Judicial Magistrate heading the Board to re-determine the age

of the accused.

In Shah Nawaz Vs. State of U.P. and Another, the Court while examining the scope of Rule 12, has reiterated that medical opinion from the

Medical Board should be sought only when matriculation certificate or equivalent certificate or the date of birth certificate from the school first

attended or any birth certificate issued by a Corporation or a municipal authority or a panchayat or municipal is not available. The court had held

entry related to date of birth entered in the mark sheet is a valid evidence for determining the age of the accused person so also the school leaving

certificate for determining the age of the appellant.

Subsequently, a three-Judge Bench of Hon''ble Supreme Court in Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, as regards

''age determination enquiry'' also took similar view.

In this connection, it is relevant to note the following observations of the Hon''ble Apex Court made in Gopinath Ghosh Vs. The State of West

Bengal, which has also been reiterated in ABUZAR HOSSAIN (supra):

Before we part with this judgment, we must take notice of a developing situation in recent months in this Court that the contention about age of

a convict and claiming the benefit of the relevant provisions of the Act dealing with juvenile delinquents prevalent in various States is raised for the

first time in this Court and this Court is required to start the inquiry afresh. 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 or

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.

In the light of the provisions of Rule 12 of the Juvenile Justice (care and protection of children) Rules 2007 and the various decisions of the

Hon''ble Apex Court, now let us see the report submitted by the learned IV Additional Sessions Judge, Chennai.

As already stated, the offence of murder was committed on 30.6.1992. In order to claim the benefit of the benevolent provisions of the New

JJ Act 2000, the petitioner has to establish that on 30.6.1992, he was below 18 years.

Petitioner, Jayavelu claimed that he was born on 3.1.1976. If that is so, on the date of commission of the offence, namely, on 30.6.1992, he

was 16 years, 5 months and 27 days old. After conducting the enquiry, the trial Court on 12.6.2012 submitted its report that the petitioner was 16

years, 5 months and 27 days old, namely, few days less of 16 1/2 years. The Inquiring Judge concluded that since he is above 16 years as per

Section 2(h) of Juvenile Justice Act 1986, he is not a Juvenile in conflict with law.

It is to be noted that the Old J.J. Act 1986 has gone, repealed, in its place, New J.J. Act, namely, Juvenile Justice (Care and Protection of

Children) Act, 2000 came in with effect from 1.4.2001. Thus, the IV Additional Sessions Judge having not aware of the current Act referring to

the repealed Act, namely, Juvenile Justice Act 1986 came to a wrong conclusion.

Further, as there was no reference about the parents of the petitioner and also no further details as to the genuineness of the birth certificate

issued by the Corporation of Chennai, we have directed the said Judge to conduct further enquiry and submit his fresh report. Accordingly, the

learned Judge conducted fresh enquiry and submitted his fresh report dated 14.8.2012.

Before the Trial Judge, C.Ws. 1 to 5, namely, Jayavel, Dr. Vedanayagam, Parimala, Sankar and Alfred Wilson were examined and Exs. C.1

to C.5 and M.O. 1/X-rays have been filed.

The claim of the petitioner is that he was born on 3.1.1976 to Thangaiah and Vatsala. From the evidence of C.Ws. 3 and 4 Parimala and

Sankar, the other daughter and son of Thangaiah, it is seen that in 1996, Vatsala died and when their hut was gutted by fire, her death certificate

was also lost. Thangaiah died on 4.6.2011 (Ex. C.4-death certificate).

The evidence of C.Ws. 3 and 4 is that their brother Jayavelu was born on 3.1.1976 to their parents in Rainy Hospital, G.A. Road, Madras-21

and his birth was registered by the Corporation of Chennai. Petitioner produced his VIII Standard Pass certificate issued by the Director,

Government Examinations, Chennai wherein his date of birth has been mentioned as 3.1.1976. He wrote the examination from jail declaring that he

was born on 3.1.1976. This certificate came into being subsequent to his conviction. So, we cannot solely rely on this.

Ex. C.1 is a xerox copy of birth certificate issued by the Corporation of Chennai on 18.12.1991. It is stated therein that on 3.1.1976 to

Thangaiah and Vatsala, a male child was born in Rainy Hospital, G.A. Road, Madras-21. On the basis of this, petitioner claims that he was born

on 3.1.1976. As already stated, C.Ws. 3 and 4 his sister and brother have also stated so. C.W. 5, Alfred Wilson, Inspector of Police verified the

genuineness of Ex. C1 with the Corporation Officials. The Chennai Corporation issued a computerised birth certificate to the petitioner. It contains

his birth details as found in Ex. C.1. The Health Officer, Corporation of Chennai, the authority for registering the births also certified that the said

birth certificate is genuine. As to the date of birth, claimed by the petitioner and the age determination report of the Inquiring Judge, there is no

dispute from the respondents.

Now considering the entire materials placed before us, it is beyond doubt that Jayavelu was born on 3.1.1976 to Thangaiah and Vatsala.

The Inquiring Judge summoned Dr. Vedanayagam, Professor of Forensic Medicine, Govt. Rajaji Medical College, Chennai and examined him

as C.W. 2. The Doctor conducted some tests and also examined Ex. C.W. 5 series-X-rays and issued Ex. C.3 determining the age of the

petitioner as on 9.4.2012 as above 35 years and below 40 years.

Petitioner claimed his date of birth on the basis of birth certificate issued by Corporation of Chennai. Rule 12(3) of the Juvenile Justice (Care

and Protection of Children) Rules, 2007 contemplates three type of evidence, namely, matriculation or equivalent certificate, if that is not available,

birth certificate from school (other than play school) first attended, if that is also not available, then birth certificate issued by Corporation or

Municipality or Panchayat. If the said three certificates are also not available then only medical evidence has to be sought for to determine the age

of the person.

Now in the case before us, petitioner has claimed his date of birth on the basis of certificate issued by the Corporation of Chennai. It will come

under Rule 12(3). In such circumstances, consideration of medical evidence will not arise.

However, as against the provisions of J.J. Act and the Rules, the learned IV Additional Sessions Judge besides conducting enquiry as to the

genuineness of the birth certificate issued by the Corporation of Chennai also examined medical evidence. This is not correct. This is against 2007

Rules. As already stated this has been deprecated by the Hon''ble Apex Court in ASHWANI KUMAR SAXENA (supra).

In the case before us, the offence was committed on 30.6.1992. Then the petitioner was 16 years, 5 months and 27 days old. Then, he has not

completed 18 years of his age. As per Section 2(h) of the Old J.J. Act, 1986, he will not be a Juvenile. But, as per Section 2(k) of the New J.J.

Act, 2000, he is a Juvenile. On the date of offence, namely, on 30.6.1992, he was below 18 years of age but, subsequently, he had crossed 18

years of age and before 1.4.2001 he was above 18 years of age. As per Section 2(l) of the New J.J. Act, 2000, he is a juvenile in conflict with

law. As per the dictum of the Hon''ble Supreme Court in HARI RAM (supra), even now he can raise his juvenility at the time when he was

committed the offence and seek the benefits under the New J.J. Act, 2000.

As per Section 16 of the New J.J. Act, 2000, petitioner cannot be sentenced to life. As per its Section 15, at the most, he can be detained in a

Special Home for three years. The Trial Court sentenced the petitioner to life. Subsequently, on 1.10.2002, this was confirmed by this Court. On

10.07.2003, his SLP was also dismissed by the Honourable Supreme Court. Now, he is 37 years old. Already, he is in jail for more than 14

years. These aspects were not disputed by the prosecution. So, as per Section 15 of the New J.J. Act, at this distant of time, stage and age it

would be unrealistic and impracticable to send him to a Special Home.

In Pradeep Kumar, Krishan Kant and Jagdish Vs. State of U.P., a three-Judge Bench of the Hon''ble Apex Court finding that the accused was

below 16 years on the date of commission of offence held that as per the then provisions of Uttar Pradesh Children Act, he cannot be sentenced to

life and as the accused had crossed 30 years, directed his release from Jail.

In Upendra Kumar Vs. State of Bihar, in a Criminal Appeal, under similar circumstances, the Honourable Supreme Court after coming to the

view that now referring the Juvenile in conflict of law to the Juvenile Justice Board does not arise, sustained the conviction u/s 302 IPC, however,

quashed his life sentence and ordered his release from jail.

In Vaneet Kumar Gupta @ Dharminder Vs. State of Punjab, , the accused who was sentenced to life u/s 302 r/w 149 of IPC was found to be

a Juvenile at the time of commission of the offence, the Honourable Supreme Court noticing the fact that he is in jail for several years, directed his

release from jail.

70 Similar view also has been taken by the Honourable Supreme Court in Satish @ Dhanna Vs. State of M.P. and Others, and in Vikram Singh

Vs. State of Haryana,

In Dharambir Vs. State (NCT of Delhi) and Another, the appellant was sentenced to life, in the course of his Criminal Appeal before the

Honourable Supreme Court, in the enquiry conducted, it was found that at the time of commission of the offence, he was below 18 years of age

and was a juvenile in conflict with law and by the time his appeal reached the Honourable Supreme Court, he had reached 35 years of his age and

had spent 2 years, 4 months and 4 days in jail. So, even as per Section 15 of the New J.J. Act, 2000 he has to be sent to the Special Home for

the balance 8 months. However, the Honourable Apex Court noticing that sending him to Special Home will not be in the interest of other juveniles

in the Home, directed his release from jail.

In Bhim @ Uttam Ghosh Vs. State of West Bengal, the appellant was sentenced to 5 years rigorous imprisonment. It was established before

the Honourable Supreme Court that on the date of offence, he was a juvenile in conflict with law and he is entitled to the benefit of New J.J. Act,

2000 and by that time, he has become 42 years old. But, he was in jail for less than 3 years. In the circumstances, the Apex Court did not detain

him in jail for the remaining period but directed his release from jail.

In Mohan Mali and Another Vs. State of M.P., , the petitioner was sentenced to life u/s 302 I.P.C. by the trial Court. It was confirmed by the

High Court. During his plea for appeal bail, before the Apex Court, plea of juvenility was raised by him and it was accepted by the Hon''ble Apex

Court and he was granted bail and expeditious disposal of his appeal was ordered.

In Lakhan Lal Vs. State of Bihar, the accused who was sentenced to life u/s 302 r/w 34 of IPC was found to be a juvenile in conflict with law

at the time of his commission of the offence. By the time, when his appeal reached the Honourable Supreme Court, he has crossed 40 years of his

age and he was in jail for more than 7 years. Under these circumstances, referring to DHARAMBIR (supra), the Honourable Supreme Court set

aside his life sentence and directed his release.

Amit Singh Vs. State of Maharashtra and Another, the accused was found guilty under Sections 396, 506, 341, 379 r/w 120-B of IPC and

Section 25(1-B), 5 r/w 27 of the Arms Act, apart from the other sentence of imprisonment, he was also sentenced to life and his sentences were

confirmed by the Bombay High Court in the Criminal Appeal filed by him and the Honourable Supreme Court also dismissed his SLP (Criminal).

Subsequently, he filed a Writ Petition (Criminal) before the Honourable Supreme Court under Article 32 of the Constitution of India and claimed

juvenility and his claim was considered and he was found to be eligible for benefit under the New J.J. Act, 2000 and by the time he has been in jail

for 12 years. In the circumstances, the Honourable Supreme Court held that since he was in jail for more than the maximum period for which a

juvenile may be confined in a Special Home, directed his release from jail.

In VICTORIA (supra) and in M. Pattammal Vs. The Inspector of Police Theppakulam Police Station Madurai District and The

Superintendent of Central Prison Madurai District, in the Habeas Corpus Petitions filed by the life convicts after dismissal of their Criminal Appeals

by this Court when they have established that they were juveniles in conflict with law at the time when the offences were committed by them and

have spent more than 3 years in jail and have also crossed 18 years of their age long back, the Court directed their release from jail.

In SURESH @ SURESH KUMAR Vs. INSPECTOR OF POLICE AND OTHERS [2012 (4) MLJ (Crl) 194], since on the date of the

commission of offence, the petitioner, who was ultimately, awarded life sentence by the Hon''ble Apex Court was a Juvenile in conflict with law

within the meaning of New J.J. Act, 2000 and he was 43 years old and had spent 13 years in jail, this Court directed his release from jail.

In S. Madheswaran Vs. State of Tamil Nadu, this Court referring to HARI RAM (supra) and AMIT SINGH (supra), and a three-Judge

bench decision of the Hon''ble Apex Court in Babban Rai and Another Vs. State of Bihar, the appellant having been entitled to the benefit under

Juvenile Justice (Care and Protection of Children) Act, 2000 and already he had attained majority directed his release from jail.

In Kalu @ Amit Vs. State of Haryana, the Hon''ble Apex Court while confirming the conviction of the appellant by the Trial Court u/s 302 r/w

34 I.P.C., since the appellant was a Juvenile in conflict with law within the meaning of New Juvenile Justice (Care and Protection of Children) Act,

2000 on the date when the offence was committed, he was already in Jail for 9 years and attained his majority long back directed his release from

jail and also noticing Section 19 of the J.J. Act 2000 held that he shall not incur any disqualification because of its order.

In Vijay Singh Vs. State of Delhi, the appellant who was convicted to 5 years rigorous imprisonment u/s 307 IPC, claimed that he was a

Juvenile in conflict with law on the date of commission of offence and the Hon''ble Apex Court on the basis of the date of birth mentioned in his

School Leaving Register and his Original Admission Register accepted his plea of juvenility and noticing that the appellant is in jail for more than 3

years directed his release from jail.

In Babla @ Dinesh Vs. State of Uttarakhand, the appellant was sentenced to life u/s 302 r/w 149 I.P.C. and on the basis of the report of the

Sessions Judge, the Court accepted that the appellant was Juvenile in conflict with law on the date of commission of offence and since he was in

jail for more than 3 years out of the maximum period prescribed u/s 15 of New J.J. Act, 2000, set aside his life sentence and directed his

immediate release from jail.

In granting relief to the petitioner, now we come to his case. Now he is more than 37 of years old. He is in jail for more than 14 years. As per

Section 16 of New J.J. Act, 2000, as he is a Juvenile in conflict with law at the time of commission of the offence, he cannot be sentenced to life.

As per Section 15 of the said Act, at the most he can be detained in a Special Home for 3 years. Now, he is in jail for more than 14 years.

Following the mandate of the law and the decisions of the Hon''ble Apex Court, the petitioner has to be released from jail. In the result, this

Habeas Corpus Petition is allowed. The Superintendent, Central Prison, Vellore is directed to release the petitioner from jail forthwith, if his further

custody is no longer required in connection with any other case. In view of Section 19 of the Juvenile Justice (care and protection of children) Act,

2000, petitioner shall not incur any disqualification because of his conviction and the period of sentence undergone by him.