# Ravindra Singh & Anr. (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 462
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-16
- **Case number:** Criminal Appeal No. 1872 of 2011
- **Bench:** Mrs. Sunita Agarwal, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravindra-singh-anr-in-jail-v-state-of-u-p-45841
- **Pages:** 25

## Headnote

Civil Law - Juvenile Justice (Care and
Protection of Children) Act' 2015- Section
94(2) - The claim of juvenility can be raised at
any stage of the proceeding by a person even in
the appeal court - For making a claim of
juvenility after conviction, the claimant has to
produce some material before the appellate
court so as to prima facie prove that an inquiry
into the claim of juvenility is necessary. Initial
burden in such a claim has to be discharged by
the person who claims juvenility that too before
the court where the lis is going on.- As to what
would prima facie satisfy the Court 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.
However,
the
documents referred in sub section (2) of Section
94 of the Act' 2015 have to be treated as
sufficient for prima faice satisfaction of the
Court about the age of the delinquent to initiate
an inquiry under the Act' 2015.
The burden of proof lies upon the person who
makes a claim for juvenility before the Court
and a prima facie case for the said claim shall
be made out on the basis of the requirement of
the documents prescribed u/s 94(2) of the Act,

## Text

_Characters 0–39,794 of 88,729. This is a partial read: ask again with offset=39794 for what follows._

462 INDIAN LAW REPORTS ALLAHABAD SERIES
Genda
Singh
and
thereafter
the
circumstantial evidence to the effect that
the accused had dragged the deceased in
their Kotha, where he was murdered and
thereafter the accused fled from there, and
after the accused had fled, the witnesses
entered the room and found the deceased in
dead condition. It is also noteworthy that
the Kotha in which the dead body of the
deceased was found belonged to the coaccused Genda Singh, although the defence
version was that the said house belonged to
sister of Genda Singh, but the investigating
officer had stated that the same belonged to
Genda Singh. In view of this the burden
also stood shifted to the accused to prove as
to how the deceased was found dead in
Kotha belonging to them which could not
be discharged by them. Therefore, in view
of foregoing discussion we are of the view
that the trial court has rightly convicted the
accused
appellants
for
the
offences
mentioned above and the appeal deserves
to be dismissed and is accordingly
dismissed.

80. The appellants are on bail. They
may be taken into custody forthwith and
sent to jail to serve out the sentence
imposed on them by the trial court.

81. Let a copy of this judgment be
transmitted to the trial court forthwith
along with lower court record for necessary
compliance.

----------
(2020)06ILR A462
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2020

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE DINESH PATHAK, J.
Criminal Appeal No. 1872 of 2011

Ravindra Singh & Anr.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Rajul Bhargava, Sri Deepak Kumar
Pandey, Sri Noor Mohammad

Counsel for the Opposite Party:
A.G.A.

Civil Law - Juvenile Justice (Care and
Protection of Children) Act' 2015- Section
94(2) - The claim of juvenility can be raised at
any stage of the proceeding by a person even in
the appeal court - For making a claim of
juvenility after conviction, the claimant has to
produce some material before the appellate
court so as to prima facie prove that an inquiry
into the claim of juvenility is necessary. Initial
burden in such a claim has to be discharged by
the person who claims juvenility that too before
the court where the lis is going on.- As to what
would prima facie satisfy the Court 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.
However,
the
documents referred in sub section (2) of Section
94 of the Act' 2015 have to be treated as
sufficient for prima faice satisfaction of the
Court about the age of the delinquent to initiate
an inquiry under the Act' 2015.
The burden of proof lies upon the person who
makes a claim for juvenility before the Court
and a prima facie case for the said claim shall
be made out on the basis of the requirement of
the documents prescribed u/s 94(2) of the Act,
2015.

Civil Law - Juvenile Justice (Care and
Protection of Children) Act' 2015- Section
94 - Inquiry- No need of if the claim is bogus
and frivolous- If on a prima facie inquiry, the
Court before whom the claim of juvenility is
raised, finds that the claim is frivolous, bogus or
absurd or improbable, it can reject the same at
the threshold without referring to the inquiry
before the Juvenile Justice Board as it would be
6 All. Ravindra Singh & Anr. Vs. State of U.P.
463
a futile exercise and also abuse of the process
of the Court. The reason being that a person
who raised a claim has to approach a Court with
clean hands and the process of law cannot be
allowed to be abused at the hands of an
unscrupulous person
- Once the Statute
provides complete procedure and manner of
inquiry and enumerates the material evidence
which could be considered in inquiry, no
deviation is permissible in the course of inquiry.
The Juvenile Justice Board or the Committee, as
the case may be, has to strictly follow the
procedure and the manner in which inquiry has
to be conducted.
There is no requirement to conduct any inquiry
by the Juvenile Justice Board if at the very
beginning the claim is found to be false and
frivolous
and
that
the
person
has
not
approached the Court with clean hands. The
provisions of the Act have to be strictly adhered
to and no deviation from the same is
permissible.

Civil Law - Juvenile Justice (Care and
Protection of Children) Act' 2015- Section
94 - Medical Opinion- Can be used as a last
resort only for corroborating the documentary
evidence- As far as medical evidence is
concerned, the same has been considered as a
last resort in the matter of determination of age
- The legislative intent to give primacy to the
school record regarding the date of birth and
the mark sheet containing the said information
is clear and categorical. The medical opinion, if
obtained, can only be of corroborative value in
case of any doubt in the minds of the courts on
the documentary evidences.
While determining the claim of juvenility,
primacy has to be given to the school records
and the medical opinion can only be used for
corroboration of the documentary evidence.

Civil Law - Juvenile Justice (Care and
Protection of Children) Act' 2015 - Section
102 - Section 94 - The power to examine the
validity of the order of the Juvenile Justice
Board in appeal is drawn under Section 102 of
the Act' 2015 which confers supervisory
revisional jurisdiction on the High Court to call
for the records of any proceeding conducted by
the Board on its own motion so as to satisfy
itself with regard to the legality or propriety of
an order passed in such proceeding- An
application was moved by the appellant directly
before the Juvenile Justice Board without
disclosing the fact of pendency of the present
appeal. Without making any inquiry regarding
pendency of the instant appeal or without any
direction of this Court, the Juvenile Justice
Board had proceeded to make an inquiry into
the claim of juvenility of a convicted accused.
The High Court can examine the legality and
propriety of an order passed by the Juvenile
Justice Board u/s 102 of the Act- Filing of
application claiming juvenility by the Appellant
before the Juvenile Justice Board during the
pendency of the Criminal Appeal and without
disclosing the same, is an abuse of the process
of the Court and the inquiry conducted by the
Board would be an illegality.

Civil Law - Juvenile Justice (Care and
Protection of Children) Act' 2015-Section
94 - The Statute requires that the Board shall
conduct
an
inquiry
(in
the
matter
of
determination of age) by summoning evidences
from the School authorities as the words used in
sub section (2) of Section 94 are "by seeking
evidence by obtaining" the birth certificate from
the school, or the matriculation certificate from
the concerned Board of examination- Sufficient
evidences were not before the Juvenile Justice
Board and it has proceeded to declare the
appellant/applicant juvenile on inadmissible
evidence such as original (duplicate) school
leaving certificate and self attested copy of the
admission register produced by the applicant-
No prima facie satisfaction can be recorded
regarding the claim of the applicant being a
juvenile on the date of the incident- the
appellant has not approached this Court with
clean hands and the plea of juvenility has been
raised as a shield to cover his misdeeds that too
by placing reliance on insufficient material.

In the absence of any sufficient evidence that
could prima facie make out a claim for juvenility
of the appellant, the Board could not have
declared the appellant juvenile on the date of
the incident. Also in view of the fact that the
appellant has not come with clean hands before
the Court and the claim for juvenility is clearly a
shield and a cover to escape from his criminal
liability. (Para 47, 48, 50, 51, 56, 62, 63, 68, 74)

Application rejected. (E-3)
464 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law relied upon/ Discussed:-

1. Ashwani Kumar Saxena Vs St. of M.P

2. Anil Agarwala & anr. Vs St. of W.B

3. Dharmbir Vs St. (Nct Of Delhi) & anr.

4. Abuzar Hossain @ Gulam Hossain Vs St. of
W.B

5. Om Prakash Vs St. of Raj.

6. Parag Bhati Vs St. of U.P.

7. Ramdeo Chauhan Vs St. of Assam

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.
 &
Hon'ble Dinesh Pathak, J.)

(Order on application No.20 of 2019
dated 24.09.2019)

1. Heard Sri Noor Mohammad
learned counsel for the appellant No.2
Mahesh and Sri Jai Narayan learned
A.G.A.-1 for the State.

2. We have heard learned counsel for
the appellant on the application dated
24.09.2019 filed on behalf of the appellant
No.2 Mahesh to take on record the order
dated 25.08.2018 passed by the Juvenile
Justice Board as an additional evidence and
direct an inquiry with regard to the plea of
juvenility raised by the applicant/appellant.

3. To ascertain the claim of the
appellant
seeking
declaration
of
his
juvenility, it would be pertinent to note
certain relevant facts of the case.

4. An application dated 24.09.2019
supported by affidavit of brother of the
appellant/applicant Rinku aged about 38
years has been filed herein stating that
during pendency of the present appeal, the
appellant moved an application through his
counsel directly before the Juvenile Justice
Board, Hathras for declaring him juvenile
taking the plea that the appellant was born
on 11.08.1991 and he studied upto Class III
in Harcharan Lal Poorva Madhyamik
Vidyalaya, Nai Ka Nagla, Hathras. The
date of birth of the appellant was sought to
be proved from the School Leaving
Certificate dated 05.07.2018 appended as
Annexure
No.'1'
to
the
affidavit
accompanying the aforesaid application. It
is contended that the Juvenile Justice Board
after hearing both the parties and perusal of
the documents appended by the appellant in
support of his application, declared him
juvenile by an order dated 25.08.2018. The
copy of the said order has been brought on
record by means of a supplementary
affidavit dated 06.01.2019. It appears that
when the matter came up for hearing before
this Court on 19.09.2019 on the prayer
made by the counsel for the appellant he
was permitted to move a fresh application
claiming juvenility in the present appeal.
As a result of the direction issued by this
Court vide order dated 19.09.2019, the
appellant has moved the present application
for the reliefs as noted above.

5. It is contended that the date of
incident is 11.08.2008 and on the said date,
the appellant was about 17 years old. It is
then contended that an inquiry is to be
conducted as per the procedure under the
Juvenile Justice Act under the directions
issued by this Court.

6. To the above application, a counter
affidavit dated 14/26.11.2019 has been
filed on behalf of the State to bring on
record the order dated 25.08.2018 passed
by the Juvenile Justice Board as also the
copy of the mark sheet of Class III and the
6 All. Ravindra Singh & Anr. Vs. State of U.P.
465
School
Leaving
Certificate
dated
05.07.2018, the documents relied by the
Juvenile Justice Board. It is pertinent to
note that alongwith the supplementary
affidavit dated 06.01.2019, sworn by the
brother of the appellant, the copy of
application dated 21.07.2018 moved by the
appellant before the Juvenile Justice Board
and the order dated 25.08.2018 passed by it
have also been brought on record.

7. Considering the above documents,
the questions for adjudication before this
Court are:- (i) as to whether the appellant
was justified in approaching the Juvenile
Justice Board directly for making inquiry
for declaring him juvenile on the date of
the incident i.e. 11.08.2008, without
moving any application, at the first instance
in the instant appeal more so when the said
fact was not disclosed to the Juvenile
Justice Board. (ii) Second issue is about the
legality and propriety of the order dated
25.08.2018 passed by the Juvenile Justice
Board.

8. The issues before us have serious
ramification, therefore, it would be apt to
go through the entire Scheme of the
Juvenile
Justice
Act
alongwith
the
amendments in the statutory provision
relating to Juvenile Justice (Care and
Protection of Children) Act brought from
time to time to understand the legal
position prevailing on the date of the claim
made by the appellant for declaring him
juvenile. And further to examine the
manner in which, inquiry has to be
conducted by the Juvenile Justice Board.
We would also be required to refer to the
judicial pronouncements holding the field.

9. The Juvenile Justice Act' 1986 (Act
No.53 of 1986) was incorporated by the
Parliament as a result of ratification of the
convention on the right of the Child, adopted on
20th November 1989 by the General Assembly
of the United Nations. To achieve the objectives
of the Convention, the Juvenile Justice (Card
and Protection of Children) bill was introduced
in the Parliament. On a review of the working
of the Juvenile Justice Act' 1986, it was found
that the justice system as available for adults
was not suitable for being applied to a juvenile
or the Child or anyone on their behalf including
the police, voluntary organisations, social
workers, or parents and guardians, throughout
the country. An urgent need was felt for
creating adequate infrastructure necessary for
the implementation of the proposed legislation
with a larger involvement of informal systems
specially the family, the voluntary organisations
and the community. An Act to consolidate and
amend the law relating to juvenile in conflict
with law and Children in need of care and
protection, by providing proper care, protection
and treatment, by catering to their development
needs, and by adopting a Child-friendly
approach in the adjudication and disposition of
matters in the best interest of child and for their
ultimate
rehabilitation
and
for
matters
connected therewith or incidental thereto, was
enacted w.e.f 30.12.2000, which is known as
the Juvenile Justice (Care and Protection of
Children) Act'2000 (56 of 2000) (in short 'The
Act' 2000)

10. Exhaustive amendment was brought
in the Act' 2000 by the Amendment Act 33 of
2006 introduced w.e.f. 22.08.2006. Some
relevant provisions of the Juvenile Justice Act'
2000 have also been amended in the year 2011.
The relevant amendment dated 22.08.2006 for
ready reference are to be quoted as under:-

"Section 2 (k) "juvenile" or
"child" means a person who has not
completed eighteenth year of age"

Section 2(l) "juvenile in conflict
with law" means a juvenile who is alleged
466 INDIAN LAW REPORTS ALLAHABAD SERIES
to have committed an offence and has not
completed eighteenth year of age as on the
date of commission of such offence;';

Section 2(s) "probation officer"
means an officer appointed by the State
Government as a probation officer under
the Probation of Offenders Act, 1958 (20 of
1958);"

11. Section 3 of 2000 Act reads as
under:-

"Section
3
Continuation
of
inquiry in respect of juvenile who has
ceased to be a juvenile.--Where an inquiry
has been initiated against a juvenile in
conflict with law or a child in need of care
and protection and during the course of
such inquiry the juvenile or the child ceases
to be such, then, notwithstanding anything
contained in this Act or in any other law for
the time being in force, the inquiry may be
continued and orders may be made in
respect of such person as if such person had
continued to be a juvenile or a child."

12. Section 7-A providing procedure
to be followed when claim of juvenility is
raised before any Court is as under:-

"Section 7-A 7-A (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
orders
and
the
sentence, if any, passed by a court shall be
deemed to have no effect.

13. The scope of Section 7-A of the
Juvenile Justice Act' 2000 came up for
consideration before the Apex Court in
Ashwani Kumar Saxena vs State Of
M.P1 and Anil Agarwala & another VS.
State of West Bengal2.

14. In a previous decision in
Dharmbir vs State(Nct Of Delhi) &
another3, the effect of insertion of Section
7-A in the Act' 2000 w.e.f. 22.08.2006 was
considered to hold as under:-

"12. At this juncture, it will be
profitable to take note of Section 7A,
inserted in the Act of 2000 with effect from
22nd August, 2006. It reads as follows: ----
----------------------------------------------------
----------------------------------------------------
---------------------------

Proviso to sub-section (1) of
Section 7A contemplates that a claim of
juvenility can be raised before any court
and has to be recognised at any stage even
after disposal of the case and such claim is
required to be determined in terms of the
provisions contained in the Act of 2000 and
the rules framed thereunder, even if the
juvenile has ceased to be so on or before
the date of the commencement of the Act
of 2000. The effect of the proviso is that a
juvenile who had not completed eighteen
6 All. Ravindra Singh & Anr. Vs. State of U.P.
467
years of age on the date of commission of
the offence would also be entitled to the
benefit of the Act of 2000 as if the
provisions of Section 2(k) of the said Act,
which defines "juvenile" or "child" to mean
a person who has not completed eighteenth
year of age, had always been in existence
even during the operation of the 1986 Act.
It is, thus, manifest from a conjoint reading
of Sections 2(k), 2(l),7A, 20 and 49 of the
Act of 2000, read with Rules 12 and 98 of
the Juvenile Justice (Care and Protection of
Children) Rules, 2007 that all persons who
were below the age of eighteen years on the
date of commission of the offence even
prior to 1st April, 2001 would be treated as
juveniles even if the claim of juvenility is
raised after they have attained the age of
eighteen years on or before the date of the
commencement of the Act of 2000 and
were undergoing sentences upon being
convicted."

15. In Anil Agarwal2, the order
passed by the High Court in rejection of
application of the appellant therein on the
ground of being filed at the belated stage
came up for consideration. 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
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."

16. In Ashwani Kumar Saxena1
while examining the scope of Section 7-A
of the Act, it was held 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 incident.

17. As far as the scope and the
manner of inquiry into the scheme of
juvenility of an applicant is concerned, in
exercise of powers conferred by Section
68 of the Juvenile Justice Act' 2000, the
Central
Government
framed
Rules
namely
Juvenile
Justice
(Care
and
Protection of Children) Rules, 2007 (In
short referred as "the Rules' 2007), and it
was provided therein that in case, the
State has not framed any rule, the rules
framed by the Central Government shall
apply in every State till the time the State
Government frames rules in consonance
with the rules framed by the Central
Government. It is pertinent to note that
though the State of U.P. framed rules in
the year 2004 after the Juvenile Justice
Act' 2000 came into force but no fresh
rules had been framed in consonance with
the Model Rules' 2007 framed by the
Central Government.

18. Rule 12 of the Model Rules' 2007
provided the procedure to be followed in
determination of age as under:-

"12. Procedure to be followed
in determination of Age.
468 INDIAN LAW REPORTS ALLAHABAD SERIES

(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 Ihe 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.

(6) The provisions contained in
this rule shall also apply to those disposed
of 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."

19. A question came up for
consideration before the Apex Court in
Abuzar Hossain @ Gulam Hossain vs
State Of West Bengal4 as to when should
a claim of juvenility be recognized and sent
6 All. Ravindra Singh & Anr. Vs. State of U.P.
469
for determination when it is raised for the
first time on the appeal or before the Apex
Court. It was also examined as to what
would be the effect when a claim of
juvenility was raised in trial and appeal but
not pressed and then pressed for the first
time before the Apex Court or even raised
for the first time after final disposal of the
case. The three judges Bench of the Apex
Court while dealing with the said issue in
light of the provisions under the Juvenile
Justice Act' 2000 and the Rules' 2007 has
laid down in the report that the expression,
''any court' in Section 7A is too wide and
comprehensive; it include the Apex Court.
Even the Supreme Court Rules do not limit
the operation of Section 7-A to the Courts
other than the Supreme Court where the
plea of juvenility is raised for the first time
after disposal of the case. The position of
law summarized therein is as under:-

"36 (i) A claim of juvenility may
be raised at any stage even after final
disposal of the case. It may be raised for
the first time before this Court as well after
final disposal of the case. The delay in
raising the claim of juvenility cannot be a
ground for rejection of such claim. The
claim of juvenility can be raised in appeal
even if not pressed before the trial court
and can be raised for the first time before
this Court though not pressed before the
trial court and in appeal court.

(ii) For making a claim with
regard to juvenility after conviction, the
claimant must produce some material
which may prima facie satisfy the court that
an inquiry into the claim of juvenility is
necessary. Initial burden has to be
discharged by the person who claims
juvenility.

(iii) 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 inquiry 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 Sheikh2 and
Pawan8 these documents were not found
prima facie credible while in Jitendra
Singh10 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
inquiry for determination of the age of the
delinquent.

(iv) An affidavit of the claimant
or any of the parents or a sibling or a
relative in support of the claim of juvenility
raised for the first time in appeal or
revision or before this Court during the
pendency of the matter or after disposal of
the case shall not be sufficient justifying an
inquiry to determine the age of such person
unless the circumstances of the case are so
glaring that satisfy the judicial conscience
of the court to order an inquiry into
determination of age of the delinquent.
470 INDIAN LAW REPORTS ALLAHABAD SERIES

(v) 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
hyper-technical 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.

(vi) 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."

20. In his concurring judgment,
Hon'ble Mr. Justice T.S. Thakur (as he then
was) speaking for the Bench elaborated
paragraph No.36 (iv) noted above to state
that the said point sounds a note of caution
that an affidavit of a parent or a sibling or
other relative would not ordinarily suffice
to trigger an inquiry into the question of
juvenility of the accused, unless the
circumstances of the case are so glaring
that the court is left with no option except
to record a prima facie satisfaction that a
case for directing an inquiry is made out. It
was observed that what would constitute a
glaring case cannot be put in a strait jacket
formula as the said question cannot be
easily
answered
by
enumerating
exhaustively the situations where an
inquiry may be justified even in the
absence of documentary support for the
claim of juvenility. As far as the words
"physical appearance" of the accused used
in Rule 12(2) of the Rules 2007 are
concerned, the same has lost its efficacy
with the passage of time in a case where
claim of juvenility is made before the Apex
Court, as longer the interval between the
incident and the court's decision on the
question of juvenility, the lesser the
chances of the court making a correct
assessment of the age of the accused. It was
observed that where the claim is made
before the Apex Court for the first time, the
advantage of "physical appearance" of the
accused is further reduced as there is
considerable time lapse between the
incident and hearing of the matter by the
Court.

21. It was further observed that
another situation in the matter of claim of
juvenility where the accused does not have
any evidence, showing his date of birth, by
reference to any public document such as
register of birth, certificate from school etc.
may not be available as the accused was
never admitted to any school was to be
considered. It was observed that there may
be cases in which accused may not be in a
position to provide a birth certificate from
the Corporation, the Municipalities or the
Panchayat as the register of birth and death
may not be maintained and if maintained
may not be regular and accurate and at
times truthful. The expression "absence" in
Rule 12(3) of the Rules 2007 was
considered in light of literal (dictionary)
meaning of the said expression to hold that
mere non-production of a document of
registration of birth or certificate of school
may not, therefore, disentitle the accused of
the benefit of the Act nor can it tantamount
to deliberate non-production giving rise to
an adverse inference unless the Court in the
peculiar facts and circumstances of a case
6 All. Ravindra Singh & Anr. Vs. State of U.P.
471
is of the opinion that the non-production is
deliberate or intended to mislead the Court
or suppress the truth. It was held that
approach at the stage of directing the
inquiry has of necessity to be more liberal,
lest, there is avoidable miscarriage of
justice. It was held that while affidavits
may not be generally accepted as a good
enough basis for directing an inquiry, their
non acceptance, however, is not rule of law
but a rule of prudence. The Court would,
therefore, in each case weigh the relevant
factors,
insist
upon
filing
of better
affidavits if the need so arises, and even
direct,
any
additional
information
considered relevant including information
regarding the age of the parents, the age of
siblings and the like, to be furnished before
it decides on a case-to-case, basis whether
or not an inquiry under Section 7-A ought
to be conducted. It will eventually depend
on how the court evaluates such material
for a prima-facie conclusion that the Court
may or may not direct an inquiry.

22. In Om Prakash Vs. State of
Rajasthan5, the question which arose for
consideration before the Apex Court are:-

"(i)
whether
the
respondent/accused herein who is alleged to
have committed an offence of rape under
Section 376 IPC and other allied sections
along with a co-accused who already stands
convicted for the offence under Section 376
IPC, can be allowed to avail the benefit of
protection to a juvenile in order to refer him
for trial to a juvenile court under the Juvenile
Justice (Care and Protection of Children)
Act, 2000 (shortly referred to as the ''Juvenile
Justice Act') although the trial court and the
High Court could not record a conclusive
finding of fact that the respondent-accused
was below the age of 18 years on the date of
the incident?

(ii) whether the principle and
benefit of ''benevolent legislation' relating to
Juvenile Justice Act could be applied in cases
where two views regarding determination of
the age of child/accused was possible and the
so-called child could not be held to be a
juvenile on the basis of evidence adduced?

(iii) 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 ? "

23. While dealing with the said
questions, the Apex Court had observed
that the Juvenile Justice Act was enacted
with a laudable object of providing a
separate forum or a Special Court for
holding trial of children/juvenile by the
juvenile court as it was felt that children
become
delinquent
by
force
of
circumstance and not by choice and hence
they need to be treated with care and
sensitivity while dealing and trying cases
involving criminal offence. It was held that
procedure for determination of age of a
person
claiming
juvenility
has
been
provided under the Act read with the Rules.
However, when the claim of juvenility was
made the benefit of the principle of
benevolent
legislation
can
be
made
applicable
in
favour
of
only
those
delinquents who undoubtedly have been
held to be a juvenile which leaves no scope
for speculation about the age of the alleged
accused. It was found by the Apex Court in
that case that the trial court as well as the
High Court could not arrive at any finding
at all as to whether the accused was a major
or minor on the date of the incident and yet
gave the benefit of the principle of
benevolent legislation to an accused whose
plea of minority that he was below the age
of 18 years itself was in doubt.
472 INDIAN LAW REPORTS ALLAHABAD SERIES

24. It was held that in such a situation,
the scales of justice is required to be put on
an even keel by insisting for a reliable and
cogent proof in support of the plea of
juvenility. It was held in paragraph No.'22'
& '23' as under:-

"22. It is no doubt true that if there
is a clear and unambiguous case in favour of
the juvenile accused that he was a minor
below the age of 18 years on the date of the
incident and the documentary evidence at least
prima facie proves the same, he would be
entitled for this special protection under the
Juvenile Justice Act. But when an accused
commits a grave and heinous offence and
thereafter attempts to take statutory shelter
under the guise of being a minor, a casual or
cavalier approach while recording as to
whether an accused is a juvenile or not cannot
be permitted as the courts are enjoined upon
to perform their duties with the object of
protecting the confidence of common man in
the
institution
entrusted
with
the
administration of justice.

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. The matter however
would stand on a different footing if the
academic certificates ad school records are
alleged to have been with held deliberately
with ulterior motive and authenticity of the
medical evidence is under challenge by the
prosecution."

25. In Parag Bhati Vs. State of
U.P.6, the point for consideration before
the Apex Court was as to whether in the
fact and circumstance of the said case as to
when the date of birth mentioned in the
matriculation certificate was doubtful, an
ossification test can be the last resort to
prove the juvenility of the accused?

26. The Court having gone through
the scheme of Juvenile Justice Act (Section
2 and 7-A) as also the Rules 12 of the
Rules 2007 held that under the statutory
scheme, the Board is enjoined to take
evidence by obtaining the matriculation
certificate if available, and in its absence,
the date of birth certificate from the school
first attended and if the same is also not
available then the birth certificate given by
the local body. In case any of the above
certificates are not available, then medical
opinion can be resorted to.

27. Considering the decision of the
Apex Court in Ashwani Kumar1, Abuzar
Hossain4 Om Prakash5, it was held
therein that if there is a clear and
unambiguous case in favour of the juvenile
accused that he was a minor below the age
of 18 years on the date of the incident and
the documentary evidence atleast prima
facie proves the same, he would be entitled
to the special protection under the Juvenile
Justice Act. But when an accused commits
a grave and heinous offence and thereafter
attempts to take statutory shelter under the
guise of being minor, a casual or cavalier
approach while recording as to whether the
accused is a juvenile or not cannot be
permitted. As the Court are enjoined upon
to perform their duties with the object to
protect the confidence of common man in
6 All. Ravindra Singh & Anr. Vs. State of U.P.
473
the
institution
entrusted
with
the
administration of justice.

28. It is, thus, held in paragraph
Nos.'35' & '36' of the reports as under:-

"35.