Smt. Mala Vs The Inspector of Police and The Superintendent, Central Prison

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424 paragraphs · 9,420 words

V. Dhanapalan, J

The Habeas Corpus Petition is filed by the wife of the detenu, to direct the respondents to produce the corpus of the detenu, namely A.

Ravikumar @ Kutti Ravi, son of Annaiappa, now lodged at Central Prison, Vellore, before this Court and set him at liberty as per the amended

provision of Section 4 of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 as Juvenile at the time of commission of

offence, dated 15.1.1998. Brief facts leading to filing of this petition are as follows:

(i) The first respondent registered a case on 15.01.1998 in Crime No. 15 of 1998 for the occurrence that took place around 5:00 p.m. on the

allegation that the detenu poured kerosene over the deceased Pushpa and set fire to her and she died on 21.01.1998 due to Septicemia on

account of 90% burn injuries. The first respondent registered the case under Sections 302 and 499 IPC and the detenu was named in the charge

sheet as Ravikumar @ Kutti Ravi by the first respondent.

(ii) The case was tried by the learned 2nd Additional District Sessions-cum-Chief Judicial Magistrate, Krishnagiri in S.C. No. 124 of 2000 and by

judgment dated 24.4.2002, the detenu (accused) was found guilty of the offence under Sections 302 IPC and sentenced him to undergo life

imprisonment and to pay a fine of Rs. 1,000/-, in default, to undergo three months'' rigorous imprisonment and he was also convicted for the

offence u/s 449 IPC and sentenced to undergo ten years'' rigorous imprisonment and to pay a fine of Rs. 1,000/-, in default, to undergo three

months'' rigorous imprisonment and the sentences were ordered by the trial Court to run concurrently. The appeal against the said judgment, filed

by him in Criminal Appeal No. 1238 of 2002 was dismissed by a Division Bench of this Court on 29.11.2004, confirming the judgment of

conviction and sentence passed by the trial Court. The Appeal preferred to the Supreme Court in Crl. A. No. 630 of 2005 was also dismissed on

22.02.2006, confirming the judgment of this Court.

(iii) The detenu is in jail for the past 10 years and the occurrence took place on 15.01.1998. The date of birth of the detenu is 19.07.1980. On the

date of occurrence, the detenu was a juvenile, since he had completed only 17 years 5 months and 26 days and the said date of birth is proved by

the school records issued by the Sardar Vallabh Bai Patel High School, Sarjapura, Annakal District, Karnataka.

(iv) The Government have brought an amendment to the Juvenile Justice (Care and Protection of Children) Act, 2000, amending Section 2 of the

Principal Act, thereby a boy who had not completed 18 years of age at the date of occurrence, should be treated as a juvenile and should be dealt

with only according to that Act.

(v) Since the detenu had not crossed 18 years of age on the date of the occurrence, he should have been treated only according to the provisions

of the Juvenile Justice (Care and Protection of Children) Act, 2000. Therefore, the petitioner has filed this Habeas Corpus Petition for the above

relief.

Mr. S. Doraisamy, learned counsel for the petitioner, in his submissions, strenuously contended the detenu was born on 19.7.1980 and on the

date of commission of the offence, he was a ''Juvenile'' and aged about 17 years, 5 months and 26 days, and therefore, he was a ''Juvenile in

conflict with law'' as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended by Act 33 of 2006)

(hereinafter referred to as ''the Act''). He further contended that in this regard, this Court has ordered for enquiry, by order dated 1.2.2013 with a

direction to the learned Principal District Judge, Krishnagiri to conduct an enquiry with regard to the age of the detenu and submit a report, based

on which, the Principal District Judge submitted a report, dated 5.4.2013 to this Court, stating that the detenu''s date of birth is 19.7.1980.

Learned counsel further submitted that the said report confirms the petitioner''s claim that the detenu''s date of birth is 19.7.1980, and the

documentary proof had been taken into account by the learned District Judge in Exs.C1 to C4 and the evidence of C.Ws.1 to 3 had also been

considered by the learned District Judge. He pleaded that such a conclusion arrived at by the learned Principal District Judge in his report shows

the credibility of the claim of the petitioner with regard to the ''Juvenility'' of the detenu, and the same may be accepted and the benefit of the Act

may be extended to the detenu. It is his further contention that the Act being a beneficial Legislation and based on the repeated rulings of the

Supreme Court and this Court, the benefit had been extended to the detenus who were in jail and he therefore prayed that as the detenu is in jail

for more than 11 years, he may be given the benefit of the said Legislation and he may be released from jail.

Mr. A.N. Thambidurai, learned Additional Public Prosecutor appearing for the respondents, on instructions, submitted that the benefit of the

Act could be extended only to children of age below 18 years and the petitioner has to prove the age of the detenu and on such age proof, the

detenu would be given the benefit of ''juvenility'' on the date of commission of offence. He pointed out that the report of the Principal District Judge

based on oral and documentary evidence, may be taken into account for deciding the issue and the respondents put the petitioner/detenu to strict

proof of the age and then only, the claim can be considered, otherwise, the detenu is not entitled to the benefit of the Act.

We have heard the learned counsel appearing for the parties and perused the records and the enquiry report, dated 5.4.2013 of the learned

Principal District Judge, Krishnagiri and gone through the various decisions of the Supreme Court and this Court.

On an analysis of facts, it is seen that the petitioner is the wife of the detenu A. Ravikumar @ Kutti Ravi; according to her, her husband

(detenu)''s date of birth is 19.7.1980 and she claims that her husband was a ''Juvenile'' at the time of commission of the offence, as per the

provisions of the Act. On the order of this Court, dated 1.2.2013, the learned Principal District Judge, Krishnagiri conducted an enquiry and

submitted a report, dated 5.4.2013, stating that the date of birth of the detenu is 19.7.1980 based on verification of Ex. C-1 (Duplicate Transfer

Certificate) and Ex. C-4 (Admission Register of the detenu produced by the School) and it is stated in the said report as follows:

I submit that as per the direction of the Honourable High Court, Madras in HCP. 2620/2012 dated 1.2.13, I have conducted an enquiry in respect

of the age of the detenu A. Ravikumar @ Kutti Ravi concerned in SC.124/2000 of the file of IInd Additional District Judge cum Chief Judicial

Magistrate, Krishnagiri.

Further I submit that on 15.3.13 the detenu Ravi Kumar @ Kutti Ravi was sent for from Central Jail, Vellore, and recorded his evidence as CW1

and Duplicate Transfer Certificate of the detenu is marked as Ex. C1. On the same day the detenu was sent to Government Hospital, Krishnagiri

to get radiology report. On 26.3.13 Dr. Nithiya Kokila was examined as CW2 and the radiology report and X-ray of the detenu were marked as

Ex. C2 and C3. On 03.04.2013 Thiru. G. Krishna Kumar, Clerk, SVPH School, Sarjapur, Bangalore was examined as CW3 and the admission

I further submit that on verification of the above Ex. C1 and Ex. C4, the date of birth of the detenu is 19.07.1980 and the deposition of CW1 to

CW3 and Exhibits C1 to C4 are submitted herewith for favour of kind perusal.

In this connection, it is worthwhile to refer a decision of a Division Bench of this Court in H.C.P. No. 1080 of 2011, dated 11.6.2013, reported

in 2013 (3) MLJ (Crl) 158, wherein, with regard to similar matter relating to a ''Juvenile'', this Court, relying on various decisions of the Supreme

Court and this Court and looking into the provisions of the Act, observed that, ""...the Act being a beneficial Legislation and having considered the

fact that on the date of occurrence, the detenu--Salavudeen/Shanawaz/Syed Hassain, was a ''juvenile in conflict with law'' as per Section 2(1) of

the Act, the detenu--Salavudeen/Shanawaz/Syed Hassain, is directed to be set at liberty forthwith. The second respondent-Superintendent of

Prison, Central Prison, Coimbatore is directed to release the detenu--Salavudeen/Shanawaz/Syed Hassain, forthwith from jail, unless his custody is

required in connection with any other case. In view of Section 19 of the Act, the detenu shall not incur any disqualification because of his

conviction and the period of sentence undergone by him. Habeas Corpus Petition is allowed.

Learned counsel for the parties relied on a decision of the Supreme Court reported in Shah Nawaz Vs. State of U.P. and Another, relevant

portion of which, reads as follows:

23.

The documents furnished above clearly show that the date of birth of the appellant had been noted as 18-6-1989. Rule 12 of the Rules

categorically envisages that the medical opinion from the Medical Board should be sought only when the matriculation certificate or school

certificate or any birth certificate issued by a corporation or by any panchayat or municipality is not available. We are of the view that though the

Board has correctly accepted the entry relating to the date of birth in the mark sheet and school certificate, the Additional Sessions Judge and the

High Court committed a grave error in determining the age of the appellant ignoring the date of birth mentioned in those documents which is illegal,

erroneous and contrary to the Rules.

24.

We are satisfied that the entry relating to date of birth entered in the mark sheet is one of the valid proofs of evidence for determination of age

of an accused person. The school leaving certificate is also a valid proof in determining the age of the accused person. Further, the date of birth

mentioned in the High School mark sheet produced by the appellant has duly been corroborated by the school leaving certificate of the appellant of

Class X and has also been proved by the statement of the clerk of Nehru High School, Dadheru, Khurd-o-Kalan and recorded by the Board. The

date of birth of the appellant has also been recorded as 18-6-1989 in the school leaving certificate issued by the Principal of Nehru Preparatory

School, Dadheru, Khurd-o-Kalan, Muzaffarnagar as well as the said date of birth mentioned in the school register of the said School at Sl. No.

1382 which have been proved by the statement of the Principal of that School recorded before the Board.

25.

Apart from the clerk and the Principal of the School, the mother of the appellant has categorically stated on oath that the appellant was born on

18-6-1989 and his date of birth in his academic records from preparatory to Class X is the same, namely, 18-6-1989, hence her statement

corroborated his academic records which clearly depose his date of birth as 18-6-1989. Accordingly, the appellant was a juvenile on the date of

occurrence, that is, 4-6-2007 as alleged in the FIR dated 4-6-2007.

26.

We are also satisfied that Rule 12 of the Rules which was brought in pursuance of the Act describes four categories of evidence which have

been provided in which preference has been given to school certificate over the medical report.

27.

In the light of the above discussion, we hold that from the acceptable records, the date of birth of the appellant is 18-6-1989, the Additional

Sessions Judge and the High Court committed an error in taking a contrary view. While upholding the decision of the Board, we set aside the

orders of the Additional Sessions Judge dated 13-1-2009 and the High Court dated 10-12-2010. Accordingly, the appellant is declared to be a

juvenile on the date of commission of the offence and may be proceeded in accordance with law. The appeal is allowed.

Learned counsel for the parties also relied on a decision of a Division Bench of this Court reported in 2013 (2) MWN (Cr.) 48 (DB) in the case

of Jayavelu Vs. State and two others (in H.C.P. No. 385 of 2012, order dated 15.4.2013), relating to the same facts and circumstances of the

case pertaining to a juvenile, wherein, the Division Bench, after relying upon various decisions of the Supreme Court, observed as follows:

83.

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.

84.

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.

In order to consider the claim of juvenility of the detenu, it is significant to quote the relevant provisions of the Act/Rules, which reads as follows:

Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended):

Section 2: Definitions.--In this Act, unless the context otherwise requires,--

(k) ""juvenile"" or ""child"" means a person who has not completed eighteenth year of age;

(l) ""juvenile in conflict with law"" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on

the date of commission of such offence;

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 recognised 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.

Section 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.

Section 49: 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.

The Juvenile Justice (Care and Protection of Children) Rules, 2007:

Rule 12: Procedure to be followed in determination of age:--

(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule

19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of

making of the application for that purpose.

(2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case

may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the

observation home or in jail.

(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,

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case

may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof,

clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of

the conclusive proof specified in sub-rule (3), the Court or the Board or, as the case may be, the Committee shall in writing pass an order stating

the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such

juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7-A, section 64 of the Act and these rules, no

further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred

to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in

accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate

order in the interest of the juvenile in conflict with law.

10.

It is also significant to refer to a catena of decisions of the Supreme Court, on the claim of juvenility, as follows:

(i) 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 of age 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.

(ii) 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.

(iii) 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; hence, the Honourable Supreme Court noticing the fact that he is in jail for several years,

directed his release from jail.

(iv) Similar view was taken by the Honourable Supreme Court in Satish @ Dhanna Vs. State of M.P. and Others, and in Vikram Singh Vs. State

of Haryana,

(v) 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.

(vi) 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.

(vii) 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 and 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.

(viii) 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 had crossed 40 years of his

age and he was in jail for more than 7 years. Under such circumstances, referring to Dharambir''s case (supra), the Honourable Supreme Court set

aside his life sentence and directed his release.

(ix) In 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 other sentences 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.

(x) 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.

(xi) 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.

(xii) 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 attaned majority directed his release from jail.

(xiii) 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.

(xiv) 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.

(xv) 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.

11.

In view of the above decisions of the Supreme Court and this Court and bearing in mind the above provisions of the Act/Rules and taking into

account the facts and circumstances of the case, while considering the relief sought for by the petitioner for setting the detenu at liberty, as he is

now aged about 33 years and is in jail for more than 11 years, as per Section 2(1) of the Act, as he was a ""juvenile in conflict with law"" at the time

of commission of offence, he cannot be sentenced to life and as per Section 15 of the Act, at the most, he could be the kept in Special Home for

three years and as already he has been in jail for more than 13 years and following the mandate of law and the decisions rendered by the Apex

Court, we consider it appropriate that the detenu has to be set at liberty forthwith, as he was ""a juvenile in conflict with law"" as per Section 2(1) of

the Act, the date of commission of offence being 15.1.1998 and his date of birth being 19.7.1980 and his age was 17 years, 5 months and 26

days on the date of commission of offence, which has been confirmed by a roving enquiry conducted by the learned District Judge, who submitted

the enquiry report, as quoted above.

12.

The Constitution of India, has in several provisions including clause (3) of Article 15, clause (e) and (f) of Article 39, Articles 45 and 47

imposed on the State the primary responsibility of ensuring that all the needs of children are met and their prescribed human rights are fully

protected. Further, rights of children have been protected in the National Conventions and Treaties. The United Nations adopted a Convention on

the Rights of Child and prescribed a set of standards to be adhered to by all the State authorities in securing the interest of the child. Further, it

emphasized the social re-integration of child victims to the extent possible without resorting to judicial proceedings. On the above stated principles,

the Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended) had been enacted and accordingly, it has brought certain rights

from the earlier Act, namely, Juvenile Justice Act, 1986.

13.

The Juvenile Justice (Care and Protection of Children) Act, 2000, was brought into force on 01.04.2001. The Act was aimed at providing a

juvenile justice system for juveniles in conflict with law and children in need of care and protection by adopting a child friendly approach in the

adjudication and disposition of matters in the best interests of children and for their rehabilitation keeping in view the developmental needs of the

children.

14.

As per Section 2(h) of the old Juvenile Justice Act, 1986, the detenu herein, who had not completed 18 years of age as on the date of

commission of offence, is not a juvenile. But, as per Section 2(k) of the new Juvenile Justice Act, 2000, he is a juvenile. On the date of offence,

namely, 15.1.1998, he was below 18 years of age but, subsequently he had crossed 18 years of age and before 01.04.2001, he was above 18

years of age. As per Section 2(1) of the new Act, he is a ""juvenile in conflict with law"".

15.

In Hari Ram Vs. State of Rajasthan and Another, the Supreme Court has widened the scope of new Act, 2000. In the light of the Amendment

Act 33 of 2006, the Apex Court viewed the applicability of the new Act to the juveniles, who have committed the offence, when they were aged

below 16 years, but have subsequently crossed 18 years of age on or before 01.04.2001. It was also held therein that if the juvenile in conflict with

law was below 18 years when the offence was committed and subsequently he had crossed 18 years on or before 01.04.2001, still the juvenility

can be claimed. So, as per the said case, even now, the detenu can raise his juvenility at the time when he committed the offence and seek the

benefits under the new Act. Therefore, the new Act as amended by Act 33 of 2006, has retrospective operation to the offences committed before

01.04.2001.

16.

The new Act 2000 covers the cases under the old 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 age, even after disposal of his case

and 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. Hence, even if the case is over in the trial Court or in the next Appellate Court or Revisional

Court or even in the Supreme Court, subsequently, in an independent proceeding, for the first time, the ex-juvenile in conflict with law can claim

benefit under the new Act, 2000, based on his juvenility on the date of his commission of the offence.

17.

It is also noteworthy to notice the recent ratio laid down by the Supreme Court in the case of Salil Bali Vs. Union of India and another, in W.P.

(C). No. 10 of 2013, etc., dated 17.7.2013, reported in Salil Bali Vs. Union of India (UOI) and Another, which is illuminating to the question

raised before this Court and it is useful to re-produce the relevant portion hereunder:

38.

Having regard to the serious nature of the issues raised before us, we have given serious thought to the submissions advanced on behalf of the

respective parties and also those advanced on behalf of certain Non-Government Organizations and have also considered the relevant extracts

from the Report of Justice J.S. Verma Committee on ""Amendments to the Criminal Law"" and are convinced that the Juvenile Justice (Care and

Protection of Children) Act, 2000, as amended in 2006, and the Juvenile Justice (Care and Protection of Children) Rules, 2007, are based on

sound principles recognized internationally and contained in the provisions of the Indian Constitution.

39.

There is little doubt that the incident, which occurred on the night of 16th December, 2012, was not only gruesome, but almost maniacal in its

content, wherein one juvenile, whose role is yet to be established, was involved, but such an incident, in comparison to the vast number of crimes

occurring in India, makes it an aberration rather than the Rule. If what has come out from the reports of the Crimes Record Bureau, is true, then

the number of crimes committed by juveniles comes to about 2% of the country s crime rate.

40.

The learned ASG along with Mr. Asthana and Mr. Kanth, took us through the history of the enactment of the Juvenile Justice (Care and

Protection of Children) Act, 2000, and the Rules subsequently framed thereunder in 2007. There is a definite thought process, which went into the

enactment of the aforesaid Act. In order to appreciate the submissions made on behalf of the respective parties in regard to the enactment of the

aforesaid Act and the Rules, it may be appropriate to explore the background of the laws relating to child protection in India and in the rest of the

world.

41.

It cannot be questioned that children are amongst the most vulnerable sections in any society. They represent almost one-third of the world s

population, and unless they are provided with proper opportunities, the opportunity of making them grow into responsible citizens of tomorrow will

slip out of the hands of the present generation. International community has been alive to the problem for a long time. After the aftermath of the

First World War, the League of Nations issued the Geneva Declaration of the Rights of the Child in 1924. Following the gross abuse and violence

of human rights during the Second World War, which caused the death of millions of people, including children, the United Nations had been

formed in 1945 and on 10th December, 1948 adopted and proclaimed the Universal Declaration of Human Rights. While Articles 1and 7 of the

Declaration proclaimed that all human beings are born free and equal in dignity and rights and are equal before the law, Article 25 of the

Declaration specifically provides that motherhood and childhood would be entitled to special care and assistance. The growing consciousness of

the world community was further evidenced by the Declaration of the Rights of the Child, which came to be proclaimed by the United Nations on

20th November, 1959, in the best interests of the child. This was followed by the Beijing Rules of 1985, the Riyadh Guidelines of 1990, which

specially provided guidelines for the prevention of juvenile delinquency, and the Havana Rules of 14th December, 1990. The said three sets of

Rules intended that social policies should be evolved and applied to prevent juvenile delinquency, to establish a Juvenile Justice System for

juveniles in conflict with law, to safeguard fundamental rights and to establish methods for social re-integration of young people who had suffered

incarceration in prison or other corrective institutions. One of the other principles which was sought to be reiterated and adopted was that a

juvenile should be dealt with for an offence in a manner which is different from an adult. The Beijing Rules indicated that efforts should be made by

member countries to establish within their own national jurisdiction, a set of laws and rules specially applicable to juvenile offenders. It was stated

that the age of criminal responsibility in legal systems that recognize the concept of the age of criminal responsibility for juveniles should not be fixed

at too low an age level, keeping in mind the emotional, mental and intellectual maturity of children.

42.

Four years after the adoption of the Beijing Rules, the United Nations adopted the Convention on the Rights of the Child vide the Resolution of

the General Assembly No. 44/25 dated 20th November, 1989, which came into force on 2nd September, 1990, India is not only a signatory to

the said Convention, but has also ratified the same on 11th December, 1992. The said Convention sowed the seeds of the enactment of the

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

43.

India developed its own jurisprudence relating to children and the recognition of their rights. With the adoption of the Constitution on 26th

November 1949, constitutional safeguards, as far as weaker sections of the society, including children, were provided for. The Constitution has

guaranteed several rights to children, such as equality before the law, free and compulsory primary education to children between the age group of

six to fourteen years, prohibition of trafficking and forced labour of children and prohibition of employment of children below the age of fourteen

years in factories, mines or hazardous occupations. The Constitution enables the State Governments to make special provisions for children. To

prevent female feticide, the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act was enacted in 1994. One of

the latest enactments by Parliament is the Protection of Children from Sexual Offences Act, 2012.

44.

The Juvenile Justice (Care and Protection of Children) Act, 2000, is in tune with the provisions of the Constitution and the various Declarations

and Conventions adopted by the world community represented by the United Nations. The basis of fixing of the age till when a person could be

treated as a child at eighteen years in the Juvenile Justice (Care and Protection of Children) Act, 2000, was Article 1 of the Convention of the

Rights of the Child, as was brought to our notice during the hearing. Of course, it has been submitted by Dr. Kishor that the description in Article 1

of the Convention was a contradiction in terms. While generally treating eighteen to be the age till which a person could be treated to be a child, it

also indicates that the same was variable where national laws recognize the age of majority earlier. In this regard, one of the other considerations

which weighed with the legislation in fixing the age of understanding at eighteen years is on account of the scientific data that indicates that the brain

continues to develop and the growth of a child continues till he reaches at least the age of eighteen years and that it is at that point of time that he

can be held fully responsible for his actions. Along with physical growth, mental growth is equally important, in assessing the maturity of a person

below the age of eighteen years. In this connection, reference may be made to the chart provided by Mr. Kanth, wherein the various laws relating

to children generally recognize eighteen years to be the age for reckoning a person as a juvenile/child including criminal offences.

45.

In any event, in the absence of any proper data, it would not be wise on our part to deviate from the provisions of the Juvenile Justice (Care

and Protection of Children) Act, 2000, which represent the collective wisdom of Parliament. It may not be out of place to mention that in the

Juvenile Justice Act, 1986, male children above the age of sixteen years were considered to be adults, whereas girl children were treated as adults

on attaining the age of eighteen years. In the Juvenile Justice (Care and Protection of Children) Act, 2000, a conscious decision was taken by

Parliament to raise the age of male juveniles/children to eighteen years.

46.

In recent years, there has been a spurt in criminal activities by adults, but not so by juveniles, as the materials produced before us show. The

age limit which was raised from sixteen to eighteen years in the Juvenile Justice (Care and Protection of Children) Act, 2000, is a decision which

was taken by the Government, which is strongly in favour of retaining Sections 2(k) and 2(l) in the manner in which it exists in the Statute Book.

47.

One misunderstanding of the law relating to the sentencing of juveniles, needs to be corrected. The general understanding of a sentence that

can be awarded to a juvenile u/s 15(1)(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000, prior to its amendment in 2006, is

that after attaining the age of eighteen years, a juvenile who is found guilty of a heinous offence is allowed to go free. Section 15(1)(g), as it stood

before the amendment came into effect from 22nd August, 2006, reads as follows:

15(1)(g) make an order directing the juvenile to be sent to a special home for a period of three years:

(i) in case of juvenile, over seventeen years but less than eighteen years 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.

It was generally perceived that a juvenile was free to go, even if he had committed a heinous crime, when he ceased to be a juvenile. The said

understanding needs to be clarified on account of the amendment which came into force with effect from 22.8.2006, as a result whereof Section

15(1)(g) now reads as follows:

Make an order directing the juvenile to be sent to a special home for a period of three years:

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.

The aforesaid amendment now makes it clear that even if a juvenile attains the age of eighteen years within a period of one year he would still have

to undergo a sentence of three years, which could spill beyond the period of one year when he attained majority.

48.

There is yet another consideration which appears to have weighed with the worldwide community, including India, to retain eighteen as the

upper limit to which persons could be treated as children. In the Bill brought in Parliament for enactment of the Juvenile Justice (Care and

Protection of Children) Act of 2000, it has been indicated that the same was being introduced to provide for the care, protection, treatment,

development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to and disposition of

delinquent juveniles. The essence of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the Rules framed thereunder in 2007, is

restorative and not retributive, providing for rehabilitation and re-integration of children in conflict with law into mainstream society. The age of

eighteen has been fixed on account of the understanding of experts in child psychology and behavioural patterns that till such an age the children in

conflict with law could still be redeemed and restored to mainstream society, instead of becoming hardened criminals in future. There are, of

course, exceptions where a child in the age group of sixteen to eighteen may have developed criminal propensities, which would make it virtually

impossible for him/her to be reintegrated into mainstream society, but such examples are not of such proportions as to warrant any change in

thinking, since it is probably better to try and re-integrate children with criminal propensities into mainstream society, rather than to allow them to

develop into hardened criminals, which does not augur well for the future.

49.

This being the understanding of the Government behind the enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000, and

the amendments effected thereto in 2006, together with the Rules framed thereunder in 2007, and the data available with regard to the commission

of heinous offences by children, within the meaning of Sections 2(k) and 2(l) of the Juvenile Justice (Care and Protection of Children) Act, 2000,

we do not think that any interference is necessary with the provisions of the Statute till such time as sufficient data is available to warrant any

change in the provisions of the aforesaid Act and the Rules. On the other hand, the implementation of the various enactments relating to children,

would possibly yield better results.

50.

The Writ Petitions and the Transferred Case are, therefore, dismissed, with the aforesaid observations. There shall, however, be no order as to

costs.

18.

Children are amongst the most vulnerable sections in any society. They represent almost one-third of the world s population, and unless they

are provided with proper opportunities, the opportunity of making them grow into responsible citizens of tomorrow will slip out of the hands of the

present generation. International community has been alive to the problem for a long time. After the aftermath of the First World War, the League

of Nations issued the Geneva Declaration of the Rights of the Child in 1924. Following the gross abuse and violence of human rights during the

Second World War, which caused the death of millions of people, including children, the United Nations had been formed in 1945 and on 10th

December, 1948 adopted and proclaimed the Universal Declaration of Human Rights. While Articles 1 and 7 of the Declaration proclaimed that

all human beings are born free and equal in dignity and rights and are equal before the law, Article 25 of the Declaration specifically provides that

motherhood and childhood would be entitled to special care and assistance. The growing consciousness of the world community was further

evidenced by the Declaration of the Rights of the Child, which came to be proclaimed by the United Nations on 20th November, 1959, in the best

interests of the child. This was followed by the Beijing Rules of 1985, the Riyadh Guidelines of 1990, which specially provided guidelines for the

prevention of juvenile delinquency, and the Havana Rules of 14th December, 1990. The said three sets of Rules intended that social policies should

be evolved and applied to prevent juvenile delinquency, to establish a Juvenile Justice System for juveniles in conflict with law, to safeguard

fundamental rights and to establish methods for social re-integration of young people who had suffered incarceration in prison or other corrective

institutions. One of the other principles which was sought to be reiterated and adopted was that a juvenile should be dealt with for an offence in a

manner which is different from an adult. The Beijing Rules indicated that efforts should be made by member countries to establish within their own

national jurisdiction, a set of laws and rules specially applicable to juvenile offenders. It was stated that the age of criminal responsibility in legal

systems that recognize the concept of the age of criminal responsibility for juveniles should not be fixed at too low an age level, keeping in mind the

emotional, mental and intellectual maturity of children.

19.

Four years after the adoption of the Beijing Rules, the United Nations adopted the Convention on the Rights of the Child vide the Resolution of

the General Assembly No. 44/25 dated 20th November, 1989, which came into force on 2nd September, 1990, India is not only a signatory to

the said Convention, but has also ratified the same on 11th December, 1992. The said Convention sowed the seeds of the enactment of the

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

20.

India developed its own jurisprudence relating to children and the recognition of their rights. With the adoption of the Constitution on 26th

November 1949, constitutional safeguards, as far as weaker sections of the society, including children, were provided for. The Constitution has

guaranteed several rights to children, such as equality before the law, free and compulsory primary education to children between the age group of

six to fourteen years, prohibition of trafficking and forced labour of children and prohibition of employment of children below the age of fourteen

years in factories, mines or hazardous occupations. The Constitution enables the State Governments to make special provisions for children.

21.

The Juvenile Justice (Care and Protection of Children) Act, 2000, is in tune with the provisions of the Constitution and the various Declarations

and Conventions adopted by the world community represented by the United Nations. The basis of fixing of the age till when a person could be

treated as a child at eighteen years in the Juvenile Justice (Care and Protection of Children) Act, 2000, was Article 1 of the Convention of the

Rights of the Child. While generally treating eighteen to be the age till which a person could be treated to be a child, it also indicates that the same

was variable where national laws recognize the age of majority earlier. In this regard, one of the other considerations which weighed with the

legislation in fixing the age of understanding at eighteen years is on account of the scientific data that indicates that the brain continues to develop

and the growth of a child continues till he reaches at least the age of eighteen years and that it is at that point of time that he can be held fully

responsible for his actions. Along with physical growth, mental growth is equally important, in assessing the maturity of a person below the age of

eighteen years. In the absence of any proper data, it would not be wise on our part to deviate from the provisions of the Juvenile Justice (Care and

Protection of Children) Act, 2000, which represent the collective wisdom of Parliament. It may not be out of place to mention that in the Juvenile

Justice Act, 1986, male children above the age of sixteen years were considered to be adults, whereas girl children were treated as adults on

attaining the age of eighteen years. In the Juvenile Justice (Care and Protection of Children) Act, 2000, a conscious decision was taken by

Parliament to raise the age of male juveniles/children to eighteen years. The age limit which was raised from sixteen to eighteen years in the Juvenile

Justice (Care and Protection of Children) Act, 2000, is a decision which was taken by the Government, which is strongly in favour of retaining

Sections 2(k) and 2(l) in the manner in which it exists in the Statute Book.

22.

There is yet another consideration which appears to have weighed with the world-wide community, including India, to retain eighteen as the