# Kiranpal @ Kinna v. State of U.P. & Ors

- **Citation:** (2021) 6 ILRA 491
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-10
- **Case number:** Habeas Corpus Writ Petition No. 1160 of 2019
- **Bench:** Mrs. Sunita Agarwal, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kiranpal-kinna-v-state-of-u-p-ors-47121
- **Pages:** 21

## Headnote

G.A.

Petitioner was minor-at time of incidentdefence
of
juvenility
raised
after
conviction -no appeal to Supreme Courtapproached JJ Board-declared minor on
the basis of ossification test-detention not
illegal-order of age determination not
sustainable.

Held, No doubt the standard of proof for age
determination is the degree of probability and
not proof beyond doubt. But the determination
of age, in a given case, has to be made keeping
in mind the object of the benevolent legislation,
the Juvenile Justice Act, that all persons who
were juvenile on the date of commission of
offence should be given benefit of the Act but
those who are taking plea of minor as a plea of
alibi should be shown the doors at the
threshold. It is settled legal position that all
scrupulous claims of juvenility should be thrown
at the threshold and genuine claims should be
examined with a liberal approach. No doubt that
a hyper technical approach in the matter of
enquiry would result in miscarriage of justice
but a casual or cavalier approach in the matter
of determination of age would result in travesty
of justice, which according to us, has happened
in this case. (para 23)

Petition dismissed. (E-8)

List of Cases cited:

## Text

_Characters 0–39,895 of 71,962. This is a partial read: ask again with offset=39895 for what follows._

6 All. Kiranpal @ Kinna Vs. State of U.P. & Ors.
491

44. The writ petition is allowed.
----------
(2021)06ILR A491
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.06.2021

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 1160 of 2019

Kiranpal @ Kinna ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Santosh Yadav, Sri Saurabh Yadav

Counsel for the Respondents:
G.A.

Petitioner was minor-at time of incidentdefence
of
juvenility
raised
after
conviction -no appeal to Supreme Courtapproached JJ Board-declared minor on
the basis of ossification test-detention not
illegal-order of age determination not
sustainable.

Held, No doubt the standard of proof for age
determination is the degree of probability and
not proof beyond doubt. But the determination
of age, in a given case, has to be made keeping
in mind the object of the benevolent legislation,
the Juvenile Justice Act, that all persons who
were juvenile on the date of commission of
offence should be given benefit of the Act but
those who are taking plea of minor as a plea of
alibi should be shown the doors at the
threshold. It is settled legal position that all
scrupulous claims of juvenility should be thrown
at the threshold and genuine claims should be
examined with a liberal approach. No doubt that
a hyper technical approach in the matter of
enquiry would result in miscarriage of justice
but a casual or cavalier approach in the matter
of determination of age would result in travesty
of justice, which according to us, has happened
in this case. (para 23)

Petition dismissed. (E-8)

List of Cases cited:

1. Home Secretary (Prison) Vs H. Nilofer Nisha 1
and Amit Singh Vs St. of Mah., (2020) 14 SCC
161

2. Amit Singh Vs St. of Mah., AIR ONLINE 2011
SC 556

3. Pun. & Har. High Court in Gurdarshan
Singh Vs St. of Pun. & anr., (2013) 2 AICLR
368

4. Satya Deo @ Bhoorey Vs St. of U.P., AIR 2020
Supreme Court 4826

5. Arnit Das Vs St. of Bihar, AIR 2000 Supreme
Court 2264

6. Hari Ram Vs St. of Raj. & anr., AIR 2011 SC
(Criminal) 2053

7. Kanu Sanyal Vs District Magistrate, Darjeeling
& ors., (1973) 2 SCC 674

8.Home Secretary (Prison) Vs H. Nilofer Nisha,
2012 (9) SCC 768

9. Ashwani Kumar Saxena vs St. of M.P., 2012
(9) SCC 750

10. Abuzar Hossain @ Gulam Hossain Vs St. of
W.B., 2012 (10) SCC 489

11. Om Prakash Vs St. of Raj. & anr., 2012 (5)
SCC 201

12. Parag Bhati Vs St. of U.P. , 2016 (12) SCC
744

13. Mukarrab Vs St. of U.P., 2017 (2) SCC 210

14. Ramdeo Chauhan Vs St. of Assam, 2001 (5)
SCC 714

15. Ram Vijay Singh Vs St. of U.P., 2021 ONLINE
SC 142
492 INDIAN LAW REPORTS ALLAHABAD SERIES
16. St. of M. P. Vs Anoop Singh, 2015 (7) SCC
773

17. Babloo Pasi Vs St. of Jharkhand, (2008) 13
SCC 133

(Delivered by Hon'ble Mrs. Sunita Agarwal,
J. & Hon'ble Pradeep Kumar Srivastava, J.)

1. Heard Sri Santosh Yadav learned
counsel for the petitioner and Sri D.P.S
Chauhan learned Additional Advocate
General for the State respondents.

2. The instant petition has been filed
for issuance of a writ in the nature of
habeas corpus for release of the petitioner
namely Kiranpal @ Kinna from the District
Jail Agra, on the plea that his detention in
jail is contrary to the fundamental rights
guaranteed under Article 21 of the
Constitution of India.

3. It is contended that vide order dated
19.9.2018, the Juvenile Justice Board,
Bulandshahr had declared the petitioner
juvenile as he was found to be 17 years, 9
months and 25 days on the date of the
incident.

The brief facts of the case relevant to
appreciate the plea of the petitioner are that
a first information report dated 26.3.2000
was lodged against the petitioner and 13
others co-accused persons under Sections
147, 148, 302/149, 307/149, 323/149 IPC
and 7th Criminal Law Amendment Act,
registered as Case Crime No. 33 of 2000 at
the
Police
Station
Khanpur,
District
Bulandshahr. The time and date of the
occurrence of the incident as per the said
report was 9.30 AM on 26.3.2000.

It is contended that the petitioner was
a minor at the time of the incident. Since
the father of the petitioner was also one of
the accused in the said criminal case, there
was no one to pursue the matter except the
illiterate mother of the petitioner. As a
result of it, defence of juvenility of the
petitioner could not be taken at the relevant
point of time.

The
investigating
officer
had
submitted charge sheet and trial was
commenced but neither the investigating
agency nor the trial court made any effort
on its own to find out the age of the
petitioner at any point of time, during the
course of the investigation or trial of the
petitioner. The petitioner along with coaccused was convicted and sentenced vide
judgment and order dated 29.9.2003 passed
in the Sessions Trial No. 884 of 2000 for
life imprisonment for the charges under
section 302 read with Section 149 IPC; for
seven years rigorous imprisonment for the
charges under Section 307 read with
Section 149 IPC; and six months rigorous
imprisonment for the charges under Section
323 read with Section 149 IPC. All the
sentences
were
to
run
concurrently.
Aggrieved, the petitioner along with other
co-accused filed Criminal Appeal No. 5009
of 2003, which was also dismissed vide
judgment and order dated 27.3.2013 passed
by this Court.

It is stated that on an application dated
21.3.2018 filed by the mother of the
petitioner before the Juvenile Justice
Board, Bulandshahr that the petitioner was
minor at the time of the incident and he was
entitled for the benefits of the Juvenile
Justice (Care and Protection of Children)
Act, 2000 (hereinafter referred to as "the
Act, 2000") as amended from time to time,
the Juvenile Justice Board, Bulandshahr
vide order dated 19.9.2018 had declared the
petitioner being 17 years, 9 months and 25
days of age on the date of the incident. It is
6 All. Kiranpal @ Kinna Vs. State of U.P. & Ors.
493
then contended that the order of the
Juvenile Justice Board, Bulandshahr had
never been challenged and hence has
attained finality.

4. With the above facts, it is
vehemently contended by Sri Santosh
Yadav learned counsel for the petitioner
that with the declaration of juvenility of the
petitioner, he cannot be retained in jail and
this Court has to issue a writ of habeas
corpus for release of the petitioner
declaring his detention in the District Jail,
Agra as illegal. It is contended that even if,
the petitioner had been found to be guilty
of the offence under Section 302 read with
Section 149 IPC, his detention had
exceeded the maximum period provided in
Section 15 of the Juvenile Justice Act, 2000
and as such, the detention of the petitioner
in jail amounts to violation of Article 21 of
the Constitution of India.

The submission is that the Juvenile
Justice Act, 2000 is a benevolent legislation
and based on the decision of the Apex
Court in such matters, the benefit of
juvenility is to be accorded to the
petitioner. It is contended that with the
dismissal of the criminal appeal by this
Court against the order of conviction, no
other forum is available to the petitioner to
ventilate his grievances except seeking
relief in this extraordinary writ jurisdiction
of habeas corpus under Article 226 of the
Constitution.

5. Reliance is placed upon the decisions
of the Apex Court in Home Secretary
(Prison) vs. H. Nilofer Nisha1 and Amit
Singh vs. State of Maharashtra2 as also the
decision of the Punjab and Haryana High
Court in Gurdarshan Singh vs. State of
Punjab and another3 to assert that the writ
of habeas corpus is to be issued to quash the
sentence awarded to the petitioner and direct
for his release from the District Jail, Agra
forthwith.

Placing reliance on the decisions of the
Apex Court in Satya Deo alias Bhoorey vs.
State of Uttar Pradesh4; Arnit Das vs.
State of Bihar5 and Hari Ram vs. State of
Rajasthan and another6 , it is contended
that the benefit of Juvenile Justice Act, 2000
is to be accorded to the petitioner, as the
crucial date for determination of juvenility of
a person is the date of alleged commission of
offence, that means if on the date of
commission of alleged occurrence a person is
found to be juvenile, he cannot be denied
benefit of 2000, Act as the provisions of the
said Act would apply by virtue of Section 7A (inserted by Amendment Act, 33 of 2006),
which provides that a claim of juvenility can
be raised before any Court, at any stage, and
even after the final disposal of the case.

6. It is vehemently argued by the
learned counsel for the petitioner that in the
case of Hari Ram6 , the Apex Court has
dealt with the amendments brought by Act
No. 33 of 2006 and held that with the
introduction of Section 7-A in the 2000
Act, retrospective effect has been given to
the provision of Juvenile Justice Act, 2000
and as such, the claim of juvenility of the
petitioner could be raised, before any
Court, at any stage, as has been done in the
instant case. The Juvenile Justice Board,
Bulandshahr
had
entertained
the
application moved by the mother of the
petitioner keeping in mind the above
decisions of the Apex Court and upon
enquiry found the petitioner being juvenile
on the date of the incident.

It is vehemently argued that in view of
the aforesaid position of law and the facts
of the case, the petitioner is entitled to be
494 INDIAN LAW REPORTS ALLAHABAD SERIES
released from the jail by issuance of a writ
of habeas corpus.

7. Learned Additional Advocate
General
appearing
for
the
State
respondents, on the other hand, raised the
issue of maintainability of the present
petition. It is contended that a writ of
habeas corpus can only be issued when the
detention or confinement of a person is
without the authority of law. The detention
of the petitioner in the District Jail, Agra is
pursuant to the decision of the Court of
law. The petitioner had been held to be an
accused, guilty of commission of heinous
offences under Section 302 read with
Section 149 IPC on appreciation of
evidence by two courts of law, the trial
Court as well as the appellate Court. Only
remedy available before the petitioner was
to challenge the decision of the appellate
Court,
upholding
the
judgment
of
conviction and sentence passed by the trial
court, in appeal before the Supreme Court.
In a proper proceeding before the Apex
Court, the petitioner could have filed an
application seeking determination of his
claim of juvenility. In such a proceeding,
the Apex Court may have examined his
claim on its own or would have directed the
Juvenile Justice Board to determine the
same. In any eventuality, the writ of habeas
corpus cannot be issued for release of a
prisoner, after conviction by a Court of law.

8. In the light of the above
contentions of the learned counsels for the
parties and the factual back ground of the
case,
three
questions
arise
for
determination by this Court; (i) Whether
the writ of Habeas Corpus is an appropriate
remedy and this Court can release the
petitioner
treating
his
detention
or
confinement in jail without the authority of
law?; (ii) whether the Juvenile Justice
Board, Bulandshahr had adopted the
prescribed procedure while declaring the
petitioner juvenile by the order dated
19.9.2018 ?; (iii) whether the petitioner is
entitled to the benefits of the Juvenile
Justice Act in view of the said order?

The
above
three
questions
are
interlinked to each other and cannot be
answered individually. The legal position
in regard to each question has to be
examined and, thereafter, answer can be
given only on appreciation of the facts of
the instant case. According to us, it is
necessary to be examined as to whether the
order passed by the Juvenile Justice Board
determining the claim of juvenility on the
material before it, is justifiable so as to
invoke the extraordinary power to issue a
writ of habeas corpus for release of the
petitioner.

9. Dealing with the question no. (i)
regarding the maintainability of the habeas
corpus petition, we would refer to the
decision of the Apex Court relied by the
learned counsel for the petitioner in the
case of Home Secretary (Prison)1. The
legal position with regard to the scope and
ambit of the jurisdiction of the High Court
while dealing with the writ of habeas
corpus has been summarised by the Apex
Court therein in the following words:-

"13. Article 226 of the Constitution of
India empowers the High Courts to issue
certain writs including writs in the nature
of habeas corpus, mandamus, prohibition,
quo Warranto and certiorari for the
enforcement of any right conferred under
Part III of the Constitution dealing with the
fundamental rights. In this case, we are
concerned with the scope and ambit of the
jurisdiction of the High Court while
dealing with the writ of habeas corpus.
6 All. Kiranpal @ Kinna Vs. State of U.P. & Ors.
495

14. It is a settled principle of law that a
writ of habeas corpus is available as a
remedy in all cases where a person is
deprived of his/her personal liberty. It is
processual writ to secure liberty of the
citizen
from
unlawful
or
unjustified
detention whether a person is detained by
the State or is in private detention. As
Justice Hidayatullah (as he then was) held;
"The writ of habeas corpus issues not only
for release from detention by the State but
also for release from private detention"
[Mohd. Ikram v. State of U.P., AIR 1964 SC
1625]. At the same time, the law is well
established that a writ of habeas corpus will
not lie and such a prayer should be rejected
by
the
Court
where
detention
or
imprisonment of the person whose release is
sought is in accordance with the decision
rendered by a court of law or by an
authority in accordance with law.

15. According to Dicey, "if, in short,
any man, woman, or child is, or is asserted
on apparently good grounds to be, deprived
of liberty, the Court will always issue a writ
of habeas corpus to anyone who has the
aggrieved person in his custody to have such
person brought before the Court, and if he is
suffering restraint without lawful cause, set
him free."[A.V. Dicey, Introduction to the
Study of the Law of the Constitution,
Macmillan And Co., Limited, p. 215 (1915)
3 Halsbury's Laws of England, (4th Edn.)
Vol. 11, para 1454 p. 769 ]

16. In Halsburry's Laws of England, a
writ of habeas corpus is described as "a
remedy available to the lowliest subject
against
the
most
powerful."[V.G.
Ramachandran's Law of Writs, revised by
Justice C.K. Thakker & M.C. Thakker,
Eastern Book Company, , p.1036, 6th Edn.
(2006)] . It is a writ of such a sovereign
and
transcendent
authority
that
no
privilege of person or place can stand
against it.

17. A writ of habeas corpus can only
be
issued
when
the
detention
or
confinement of a person is without the
authority of law. Though the literal
meaning of the Latin phrase habeas corpus
is ''to produce the body', over a period of
time production of the body is more often
than not insisted upon but legally it is to be
decided whether the body is under illegal
detention or not. Habeas corpus is often
used as a remedy in cases of preventive
detention because in such cases the validity
of the order detaining the detenu is not
subject to challenge in any other court and
it is only writ jurisdiction which is
available to the aggrieved party. The scope
of the petition of habeas corpus has over a
period of time been expanded and this writ
is commonly used when a spouse claims
that his/her spouse has been illegally
detained by the parents. This writ is many
times used even in cases of custody of
children. Even though, the scope may have
expanded, there are certain limitations to
this writ and the most basic of such
limitation is that the Court, before issuing
any writ of habeas corpus must come to
the conclusion that the detenue is under
detention without any authority of law."
(Emphasis supplied)

The question before the Apex Court
therein was as to whether a writ of habeas
corpus would lie, for securing release of a
person who is undergoing a sentence of
imprisonment imposed by a Court of
competent jurisdiction praying that he be
released in terms of some Government
orders/rules
providing
for
premature
release of prisoners. The answer given by
the
Apex
Court
with
the
above
observations was ''No' as it was held that
the grant of remission or parole is not a
right vested with the prisoner. It is a
privilege available to the prisoner on
496 INDIAN LAW REPORTS ALLAHABAD SERIES
fulfilling certain conditions. The earlier
decision of the Apex Court in Kanu
Sanyal
vs.
District
Magistrate,
Darjeeling and others7 had been referred
in paragraph ''21' of the said decision in the
following words:-

"21. In Kanu Sanyal v. District
Magistrate, Darjeeling reported in (1973) 2
SCC 674 this Court while dealing with the
writ of habeas corpus has held as follows:

"4. It will be seen from this brief history
of the writ of habeas corpus that it is
essentially a procedural writ. It deals with the
machinery of justice, not the substantive law.
The object of the writ is to secure release of a
person who is illegally restrained of his
liberty...."

In paragraphs ''23' and ''24' of the said
decision (Home Secretary (Prison) vs. H.
Nilofer Nisha), it was said that:-

"23. In Saurabh Kumar v. Jailor,
Koneila Jail [(2014) 13 SCC 436], this Court
came to the conclusion that the petitioner was
in judicial custody by virtue of an order
passed by the judicial magistrate and, hence,
could not be said to be in illegal detention.
Justice T.S. Thakur, as he then was, in his
concurring judgment held as follows:

"22. The only question with which we
are concerned within the above backdrop is
whether the petitioner can be said to be in the
unlawful custody. Our answer to that
question is in the negative. The record which
we have carefully perused shows that the
petitioner is an accused facing prosecution
for the offences, cognizance whereof has
already been taken by the competent court.
He is presently in custody pursuant to the
order of remand made by the said Court. A
writ
of
habeas
corpus
is,
in
the
circumstances, totally misplaced..."

24. The same view has been taken in the
State of Maharashtra and Others v. Tasneem
Rizwan Siddiquee [(2018) 9 SCC 745]
wherein it was observed that no writ of
habeas corpus could be issued when the
detenue was in detention pursuant to an
order passed by the Court. As far as the
present cases are concerned, it is not
disputed that the detenues are behind bars
pursuant to conviction and sentence imposed
upon them by a court of competent
jurisdiction and confirmed by this Court,
whereby they were sentenced to undergo
imprisonment for life."

It was, thus, held by the Apex Court
that a writ of habeas corpus is maintainable
by a person who is in detention,even a
prisoner in judicial custody by virtue of a
judicial order, if his fundamental rights are
violated.

10. Invoking the said principle, the
petitioner herein is seeking release from the
jail on the ground that his fundamental
right to life and liberty is being restrained
as after declaration of his juvenility his
detention is illegal. The right to freedom
claimed by the petitioner,thus,is dependent
on the determination of his age/ claim of
juvenility
and
not
otherwise.
The
issue,thus, can be answered with reference
to the legal provisions pertaining to the
Juvenile Justice Act, 2000 amended from
time to time. The Juvenile Justice Act,
2000 provided the age of "juvenile" under
Section 2(k) means a person, who has not
completed eighteenth (18) year of age. The
"juvenile in conflict with law" under
Section 2(l) means a juvenile who is
alleged to have committed an offence and
has not completed eighteenth (18) year of
age on the date of commission of such
offence. Section 7-A inserted in the
6 All. Kiranpal @ Kinna Vs. State of U.P. & Ors.
497
Juvenile Justice Act, 2000 by Amendment
Act No. 33 of 2006 reads as under:-

"[7-A. 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.]"

The sub section(1) thus, provides that
a claim of juvenility can be raised before
any court and whenever such a claim is
raised, the Court shall make an enquiry,
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.

The proviso to Section 7-A ,however,
states that a claim of juvenility may be
raised before any court at any stage, even
after final disposal of the case, and such
claim shall be determined in terms of the
provisions contained in the 2000 Act and
the Rules made thereunder, even if the
juvenile has ceased to be so on or before
the date of commencement of the Act.
Thereby, retrospective effect has been
given to the Juvenile Justice Act'2000
,which came into force w.e.f 1.4.2001, by
the Amendment Act' 2006.

Sub-section (2) of Section 7-A of the
Act, 2000 further says that if upon an
enquiry {which has to be made under subsection (1)}, this Court finds a person to be
juvenile on the date of commission of the
offence, 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.

In the instant case, the date of
commission of the offence was 26.3.2000 ;
there is, thus, no quarrel about the
applicability of the Juvenile Justice Act,
2000. The legal position is also well settled
that the application raising a claim of
juvenility cannot be rejected on the ground
of being filed at the belated stage.

11. We may further note that in Anil
Agarwala & another VS. State of West
Bengal8 , the order passed by the High
Court in rejection of the application of the
appellant therein on the ground of being
filed at the belated stage came up for
consideration before the Apex Court. It was
held therein:-

"6. Having regard to the above
provisions, we set aside the order passed
by the High Court which is incompatible
with the provisions of the Juvenile Justice
(Care and Protection of Children) Act,
2000 and direct the trial court to first of all
look into the question of juvenility, as
498 INDIAN LAW REPORTS ALLAHABAD SERIES
claimed by the appellants herein and after
disposal of the claim made by the
appellants that they were minors on the
date of the alleged incident, it shall
proceed with the trial. In the event the trial
court comes to a finding that the appellants
were minors at the time of commission of
the offence, it shall immediately send them
to the Juvenile Justice Board concerned for
considering their cases in accordance with
the provisions of the 2000 Act. It is
expected that these applications which have
been filed on behalf of the appellants will
be disposed of within three months from the
date of receipt a copy of this order."

In Ashwani Kumar Saxena vs State
Of M.P.9, while examining the scope of
Section 7-A of the Act, it was held by the
Apex
Court
that
the
said
statutory
provisions obliges the Court to make an
inquiry under the Juvenile Justice Act
regarding age of the accused/appellant on
the date of the incident.

From a careful reading of the
provisions of Section 7-A of the Juvenile
Justice Act, 2000, it is,thus, clear that a
claim of juvenility when raised, an enquiry
is to be made by the Court before which the
claim is made and if the Court upon such
an enquiry finds a person to be juvenile on
the date of alleged commission of the
offence, benefit of Juvenile Justice Act
shall be given to him. The Court making
such an enquiry shall be required to take
necessary evidence to determine the age of
such person.

The enquiry into the claim of the
petitioner herein has already been made by
the Juvenile Justice Board and his age has
been determined on the basis of the report
of the medical board. The right of the
petitioner
to
seek
release
from
the
prison,thus,would depend upon the result of
the said enquiry which has to be necessarily
based on the evidence brought on record,
having been completed by adopting due
procedure of law.

12. Necessary question, therefore,
arise for our consideration is as to whether
the Juvenile Justice Board, Bulandshahr
had followed the procedure prescribed
under
the
Juvenile
Justice
Act
for
determination of age of the petitioner on
the date of commission of the crime and the
order declaring juvenility of the petitioner
is legally sustainable.

The answer to these questions would
require consideration of the legal provision
in the matter of determination of age of a
person under the Juvenile Justice Act.

The Juvenile Justice Act, 2000 does
not lay down any fixed criteria for
determining the age of a person. Section
49(1) of the Act, 2000 provides for
presumption and determination of age in
the following words:-

"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."

13. From a reading of the said
provision, it is clear that it provides that
when a person is brought before the Court
6 All. Kiranpal @ Kinna Vs. State of U.P. & Ors.
499
(Juvenile Justice Board), it is obliged to
ascertain the age of that person and for the
purpose of enquiry, the board shall take
such evidence as may be necessary and
then record a finding whether the person is
a juvenile or child or not, stating his age as
nearly as may be. Under Rule 12 of Rules,
2007 framed under Juvenile Justice Act,
2000, the Board is enjoined to take
evidence for determination of age.

Rule 12 reads as under:-

"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
or 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 appearance 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 7A, 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.
500 INDIAN LAW REPORTS ALLAHABAD SERIES

(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 subrule (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.."

14. In Abuzar Hossain alias Gulam
Hossain vs. State of West Bengal10 , the
provisions of Juvenile Justice Act, 2000
and the Rules, 2007 framed thereunder
came for consideration. The three Judges
Bench of the Apex Court has observed that
the credibility and acceptability of the
documents including the certificate of
education of the person with regard to
whom enquiry is made would depend on
the facts and circumstances of each case
and no hard and fast rule as such can be
prescribed.

It was observed as under:-

"39.3. As to what materials would
prima facie satisfy the court and/or are
sufficient for discharging the initial burden
cannot be catalogued nor can it be laid down
as to what weight should be given to a
specific piece of evidence which may be
sufficient to raise presumption of juvenility
but the documents referred to in Rule
12(3)(a)(i) to (iii) shall definitely be sufficient
for prima facie satisfaction of the court about
the age of the delinquent necessitating further
enquiry under Rule 12. The statement
recorded under Section 313 of the Code is
too tentative and may not by itself be
sufficient ordinarily to justify or reject the
claim of juvenility. The credibility and/or
acceptability of the documents like the school
leaving certificate or the voters' list, etc.
obtained after conviction would depend on
the facts and circumstances of each case and
no hard and fast rule can be prescribed that
they must be prima facie accepted or
rejected. In Akbar Sheikh vs. State of W.B.
[(2009) 7 SCC 415] and Pawan vs. State of
Uttaranchal [(2009) 15 SCC 259] these
documents were not found prima facie
credible while in Jitendra Singh vs. State of
U.P. [(2010) 13 SCC 523] the documents
viz., school leaving certificate, marksheet and
the medical report were treated sufficient for
directing an inquiry and verification of the
appellant's age. If such documents prima
facie inspire confidence of the court, the
court may act upon such documents for the
purposes of Section 7A and order an enquiry
for determination of the age of the delinquent.

39.5. The court where the plea of
juvenility is raised for the first time should
always be guided by the objectives of the
2000 Act and be alive to the position that the
beneficent and salutary provisions contained
in 2000 Act are not defeated by hypertechnical approach and the persons who are
entitled to get benefits of 2000 Act get such
benefits.
The
courts
should
not
be
unnecessarily influenced by any general
impression
that
in
schools
the
parents/guardians understate the age of their
wards by one or two years for future benefits
or that age determination by medical
examination is not very precise. The matter
should be considered prima facie on the
touchstone of preponderance of probability.

39.6 Claim of juvenility lacking in
credibility or frivolous claim of juvenility or
patently absurd or inherently improbable
claim of juvenility must be rejected by the
court at threshold whenever raised."

In his concurring judgment, Hon'ble
Justice T.S. Thakur (as the Chief Justice
then was) speaking for the Bench added a
note of caution in the matter of enquiry
under the Act, it was observed that the
6 All. Kiranpal @ Kinna Vs. State of U.P. & Ors.
501
words "physical appearance" of the accused
used in Rule 12(2) of the Rules, 2007 loose
its efficacy where the claim is made before
the Higher Court for the first time. The
advantage of "physical appearance" of the
accused is reduced because of considerable
lapse of time between the incident and
hearing of the matter by the Court. It was
observed that there may be cases where the
accused may not be in a position to provide
a birth certificate from the competent
authority as they may not have maintained
it. It was held that the approach at the stage
of directing the enquiry as of necessity has
to be more liberal, lest, there is avoidable
miscarriage of justice. But directing an
enquiry is not the same thing as declaring
the accused to be a juvenile. The standard
of proof required is different for both the
stages. In the former, the Court simply
records a prima facie conclusion. In the
latter, the Court makes a declaration on
evidence that it scrutinises and accepts
only if it is worthy of such acceptance.

In Om Prakash vs. State of Rajasthan
and another11, the Apex Court while
considering the question whether medical
evidence and other attending circumstances
would be of any value and assistance while
determining the age of a juvenile, if the
academic
record
certificates
do
not
conclusively prove the age of the accused,
has held that the claim of juvenility taking
benefit of the benevolent legislation can be
made applicable in favour of only those
delinquents who undoubtedly have been held
to be juvenile which leaves no scope for
speculation about the age of the alleged
accused. It was held that if there is a clear and
unambiguous case in favour of the juvenile
accused, he would be entitled for the special
protection under the Juvenile Justice Act. But
it was observed that 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.

In paragraphs '22' and '23', the Apex
Court observed as under:-...

"22. xxxxxxxxxxxxxxxx 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.

23. 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.
Under such circumstance, the medical
evidence
based
on
scientific
investigation will have to be given due
weight and precedence over the evidence
based on school administration records
which give rise to hypothesis and
speculation
about
the
age
of
the
accused. Xxxxxxxxxxxxxxx."

It was said that the principle of
benevolent legislation would apply only to
such cases wherein the accused is held to
be a juvenile on the basis of at least prima
facie evidence regarding his minority.
502 INDIAN LAW REPORTS ALLAHABAD SERIES

In Parag Bhati vs. State of U.P.12,
after referring Abuzar Hossain10, Om
Prakash11 and other decisions of the Apex
Court,It was held that the Courts are
enjoined upon to perform their duties with
the object to protect the confidence of
common man in the institution entrusted
with the administration of justice. A casual
or cavalier approach while recording as to
whether the accused is a juvenile or not
cannot be permitted.

It was held that the claim of juvenility
cannot be allowed to be raised merely to
create a mist or a smokescreen to seek
shelter by using it as a protective umbrella
or Statutory shield. The provisions of a
benevolent legislation (Juvenile Justice
Act) cannot be used to subvert or dupe the
cause of justice

In Mukarrab v. State of Uttar
Pradesh13,
the
question
fell
for
consideration was whether the opinion of
the Medical Board of AIIMS determining
the age of the appellants therein can be
accepted or not. Considering the report of
the Medical Board, having regard to the
facts and circumstances of the case, it was
observed therein that:-

26. xxxxxxxxxx a blind and mechanical
view regarding the age of a person cannot
be adopted solely on the basis of the
medical
opinion
by
the
radiological
examination. At page 31 of Modi's Text
Book
of
Medical
Jurisprudence
and
Toxicology, 20th Edn., it has been stated as
follows:

"In ascertaining the age of young
persons radiograms of any of the main
joints of the upper or the lower extremity of
both sides of the body should be taken, an
opinion should be given according to the
following table, but it must be remembered
that too much reliance should not be placed
on this table as it merely indicates an
average and is likely to vary in individual
cases even of the same province owing to
the eccentricities of development." Courts
have taken judicial notice of this fact and
have always held that the evidence afforded
by radiological examination is no doubt a
useful guiding factor for determining the
age of a person but the evidence is not of a
conclusive and incontrovertible nature and
it is subject to a margin of error. Medical
evidence as to the age of a person though a
very useful guiding factor is not conclusive
and has to be considered along with other
circumstances.

27. In a recent judgment, State of
Madhya Pradesh v.