# ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE OF WEST BENGAL

- **Citation:** [2012] 9 S.C.R. 244
- **Court:** Supreme Court of India
- **Decided:** 2012-10-10
- **Case number:** Criminal Appeal No. 1193 of 2006
- **Bench:** R.M. Lodha, T.S. Thakur, Anil R. Dave
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abuzar-hossain-gulam-hossain-v-state-of-west-bengal-28587
- **Pages:** 43

## Headnote

JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT, 2000:
s. 7-A read with r.12 of 2007 Rules - Claim of juvenility -
Held: Can be raised at any stage, even after final disposal of
the case - Delay in raising the claim cannot be a ground for
rejection of the claim - Legal position with regard to s. 7-A and
0
r. 12 summarised - Procedure for making a claim with regard
to juvenility, and guidelines for inquiring into such a claim,
laid down - Procedure, where accused setting up the plea of
juvenility is unable to produce any of the documents
enumerated in r. 12(a)(i) to (iii) - Explained - Juvenile Justice
E (Care and Protection of Children) Rules, 2007 - r.12 - Juvenile
Justice Act, 1986 - Constitution of India, 1950 - Arts. 15(3),
39(e),(f), 45 and 47 - Convention on the Rights of the ChiJd -
United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 - United Nations
Rules for the Protection of Juveniles Deprived of their Liberty
F (1990).
The appellant in Crl. Appeal No. 1193 of 2006, raised
a plea that he was juvenile on the date of incident and,
as such, he could not have been tried in the normal
G criminal court. Since the plea of juvenility of the appellant
was not pressed before the courts below, Gopinath Ghosh
v. State of West Bengal1 was relied on to contend that
1.
1984 SCR 8.03
H
244
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE
245
OF WEST BENGAL
notwithstanding the fact that the plea of juvenility had not
A
been pressed, it was obligatory on the court to go into
the question of juvenility and determine the age. The two
Judge Bench before which the instant group of appeals
was listed for hearing, felt that there was substantial
discordance in the approach of the matter on the
B
question of juvenility in Gopinath Ghosh, and Akbar Sheikh
and others v. State of West Benga/2, and, therefore, referred
the matter to larger Bench.
The question for consideration before the Court C
was: when should a claim of juvenility be recognised and
sent for determination when it is raised for the first time
in appeal or before Supreme Court or raised in trial and
appeal but not pressed and then pressed for the first time
before Supreme or even raised for the first time after final
disposal of the case.
D
Answering the reference, the Court
HELD: (Per R.M. Lodha, J. (for himself and for Anil
R. Dave, J)
E
1.1 Parliament felt it necessary that uniform juvenile
justice system should be available throughout the
country which should make adequate provision for
dealing with all aspects in the changing social, cultural
and economic situation in the country and there was also
F
need for larger involvement of informal systems and
community based welfare agencies in the care,
protection, treatment, development and rehabilitation of
such juveniles and with these objectives in mind, it
enacted Juvenile Justice Act, 1986, which was replaced
G
by the Juvenile Justice (Care and Protection of Children)
Act, 2000. The 2000 Act has been enacted to carry
forward the constitutional philosophy engrafted in Arts.
15(3), 39(e) and (f), 45 and 47 of the Constitution and also
2.
2009 (7) SCR 518.
H
246
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A to incorporate the standards prescribed in the
Convention on the Rights of the Child, United Nations
Standard Minimum Rules for the Administration of
Juvenile Justice, 1985, the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty (1990)
B and all other relevant international instruments. [para 34] [254-G; 255-A-D]
1.2 By Act 33 of 2006, Parliament brought in
significant changes in 2000 Act. Inter alia, s. 7A came to
be inserted, which provides for procedure to be followed
C when claim of juvenility is raised before any court. Rule
12 of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 provides for procedure to be
followed in determination of age. [para 7 and 10] [256-E;
258-E]
D
Pratap Singh v. State of Jharkhand and Another 2005 (1)
SCR 1019 = 2005 (3)

## Text

_Characters 0–39,787 of 83,821. This is a partial read: ask again with offset=39787 for what follows._

[2012] 9 S.C.R. 244
A
ABUZAR HOSSAIN @ GULAM HOSSAIN
B
c
v.
STATE OF WEST BENGAL
(Criminal Appeal No. 1193 of 2006 etc.)
OCTOBER 10, 2012
[R.M. LODHA, T.S. THAKUR AND ANIL R. DAVE, JJ.]
JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT, 2000:
s. 7-A read with r.12 of 2007 Rules - Claim of juvenility -
Held: Can be raised at any stage, even after final disposal of
the case - Delay in raising the claim cannot be a ground for
rejection of the claim - Legal position with regard to s. 7-A and
0
r. 12 summarised - Procedure for making a claim with regard
to juvenility, and guidelines for inquiring into such a claim,
laid down - Procedure, where accused setting up the plea of
juvenility is unable to produce any of the documents
enumerated in r. 12(a)(i) to (iii) - Explained - Juvenile Justice
E (Care and Protection of Children) Rules, 2007 - r.12 - Juvenile
Justice Act, 1986 - Constitution of India, 1950 - Arts. 15(3),
39(e),(f), 45 and 47 - Convention on the Rights of the ChiJd -
United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 - United Nations
Rules for the Protection of Juveniles Deprived of their Liberty
F (1990).
The appellant in Crl. Appeal No. 1193 of 2006, raised
a plea that he was juvenile on the date of incident and,
as such, he could not have been tried in the normal
G criminal court. Since the plea of juvenility of the appellant
was not pressed before the courts below, Gopinath Ghosh
v. State of West Bengal1 was relied on to contend that
1.
1984 SCR 8.03
H
244
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE
245
OF WEST BENGAL
notwithstanding the fact that the plea of juvenility had not
A
been pressed, it was obligatory on the court to go into
the question of juvenility and determine the age. The two
Judge Bench before which the instant group of appeals
was listed for hearing, felt that there was substantial
discordance in the approach of the matter on the
B
question of juvenility in Gopinath Ghosh, and Akbar Sheikh
and others v. State of West Benga/2, and, therefore, referred
the matter to larger Bench.
The question for consideration before the Court C
was: when should a claim of juvenility be recognised and
sent for determination when it is raised for the first time
in appeal or before Supreme Court or raised in trial and
appeal but not pressed and then pressed for the first time
before Supreme or even raised for the first time after final
disposal of the case.
D
Answering the reference, the Court
HELD: (Per R.M. Lodha, J. (for himself and for Anil
R. Dave, J)
E
1.1 Parliament felt it necessary that uniform juvenile
justice system should be available throughout the
country which should make adequate provision for
dealing with all aspects in the changing social, cultural
and economic situation in the country and there was also
F
need for larger involvement of informal systems and
community based welfare agencies in the care,
protection, treatment, development and rehabilitation of
such juveniles and with these objectives in mind, it
enacted Juvenile Justice Act, 1986, which was replaced
G
by the Juvenile Justice (Care and Protection of Children)
Act, 2000. The 2000 Act has been enacted to carry
forward the constitutional philosophy engrafted in Arts.
15(3), 39(e) and (f), 45 and 47 of the Constitution and also
2.
2009 (7) SCR 518.
H
246
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A to incorporate the standards prescribed in the
Convention on the Rights of the Child, United Nations
Standard Minimum Rules for the Administration of
Juvenile Justice, 1985, the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty (1990)
B and all other relevant international instruments. [para 34] [254-G; 255-A-D]
1.2 By Act 33 of 2006, Parliament brought in
significant changes in 2000 Act. Inter alia, s. 7A came to
be inserted, which provides for procedure to be followed
C when claim of juvenility is raised before any court. Rule
12 of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 provides for procedure to be
followed in determination of age. [para 7 and 10] [256-E;
258-E]
D
Pratap Singh v. State of Jharkhand and Another 2005 (1)
SCR 1019 = 2005 (3) SCC 551- referred to.
1.3 It is incorrect to say that the claim of juvenility
E cannot be raised before this Court after disposal of the
case. The expression, 'any court' in s.7A is too wide and
comprehensive; it includes this Court. Supreme Court
Rules surely do not limit the operation of s.7A to the
courts other than this Court where the plea of juvenility
F is raised for the first time after disposal of the case. In
Pawan•, a 3-Judge Bench has laid down the standards
for evaluating claim of juvenility raised for the first time
before this Court. From the consideration of the matter
by this Court, Akbar Sheikh and others v. State of West
Bengal, it is clear that the case turned on its own facts.
G [para 35] [278-H; 279-A; 278-F]
H
"Pawan v. State of Uttaranchal 2009 (3) SCR 468 = 2009
(15) sec 259 - relied on
Akbar Sheikh and others v. State of West Bengal 2009
ABUZAR HOSSAIN@ GULAM HOSSAIN v. STATE
247
OF WEST BENGAL
(7) SCR 518 - referred to.
1.4 The legal position with regard to s.7A of 2000 Act
and r.12 of the 2007 Rules is summarised as under:
(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
A
B
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
C
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
0
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
E
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
F
to in r.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
r.12. The statement recorded u/s 313 of the Code is
too tentative and may not by itself be sufficient G
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
H
A
B
c
D
E
F
G
H
248
SUPREME COURT REPORTS
[2012] 9 S.C.R.
fast rule can be prescribed that they must be prima
facie accepted or rejected. If such documents prima
facie inspire confidence of the court, it may act upon
such documents for the purposes of s.7A and order
an enquiry 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 enquiry 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 enquiry int~ determination of
age of the delinquent;
(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.
[para 35-36] [279-C-H; 280-A-H]
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE
249
OF WEST BENGAL
Gopinath Ghosh v. State of West Bengal 1984 SCR 803;
A
Hari Ram v. State of Rajasthan and Another 2009 (7) SCR
623 = (2009) 13 SCC 1.1 Bhoop Ram v. State of U.P. (1989)
3 SCC 1; Pradeep Kumar v. State of U.P. 1995 (2) Suppl.
SCR 590 = 1995 (-3) Suppl. SCC 419; Bhola Bhagat v. State
of Bihar 1997 (4) Suppl. SCR 711 = 1997 (8) SCC 720; State
B
of Haryana v. Ba/want Singh 1993 (1) Suppl. SCC 409;
Jitendra Singh alias Babboo Singh and another v. State of
Uttar Pradesh 2010 (13) SCR 879 = 2010 (13) SCC 523;
Daya Nand v. State of Haryana 2011 (1) SCR 173 = 2011
(2) SCC 224; Lakhan Lal v. State of Bihar 2011 (1) SCR 770 c
= 2011 (2) SCC 251; Shah Nawaz v. State of Uttar Pradesh
and another 2011 (9) SCR 859 = 2011 (13) sec 751 -
referred to.
Per T.S. Thakur, J. (Concurring):
1.1 In paragraph 36(iv) of the order (Per R.M. Lodha,
J) fall cases in which the accused setting up the plea of
juvenility is unable to produce any one of the documents
referred to in r. 12(3)(a) (i) to (iii) of the Rules framed under
D
the Act, not necessarily because, he is deliberately
E
withholding such documents from the court, but
because, he did not have the good fortune of ever going
to a school from where he could produce a certificate
regarding his date of birth. Para 36 (iv.) sounds a note of
caution that an affidavit of a parent or a sibling or other
F
relative would not ordinarily suffice, to trigger an enquiry
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 enquiry is made
G
out. [para 1] [281-C-E]
1.2 The expression 'glaring case' cannot be confined
to a strait-jacket formulation. In order to fall under the
expression 'glaring case', the first factor is the most
mundane of the inputs that go into consideration while
H
250
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A answering a claim of juvenility like "physical appearance"
of the accused made relevant by r. 12(2) of the Rules.
[para 1) [281-G]
1.3 "Physical appearance" of th-e accused is,
8 therefore, a consideration that ought to permeate every
determination under r. 12 no matter appearances are at
times deceptive, and depend so much on the race or the
region to which the person concerned belongs. Physical
appearance can and ought to give an idea to the court
C at the stage of the trial and even in appeal before the High
Court, whether the claim made by the accused is so
absurd or improbable that nothing short of documents
referred to in r. 12 can satisfy the court about the need
for an enquiry. The advantage of "physical appearance"
of the accused may, however, be substantially lost, with
D passage of time, 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. In cases
where the claim is made in this Court for the first time,
E the advantage is further reduced as there is considerable
time lapse between the incident and the hearing of the
matter by this Court. [para 2) [282-C-F]
1.4 The second factor which must ever remain
F present in the mind of the court is that the claim of
juvenility may at times be made even in cases where the
accused does not have any evidence, showing his date
of birth, by reference to any public document like the
register of births maintained by Municipal Authorities,
G Panchayats or hospitals nor any certificate from any
school, as the accused was never admitted to any
school. Even if admitted to a school no record regarding
such admission may at times be available for production
in the court. Again, there may be cases in which the
H
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE
251
OF WEST BENGAL
accused may not be in a position to provide a birth
A
certificate from the Corporation, the Municipality or the
Panchayat. Rule 12(3) of the Rules makes only three
certificates relevant. These are enumerated in sub-r.
(3)(a)(i) to (iii) of r.12. [para 3) (282-G; 283-A-B]
1.5 Non-production of the certificates mentioned in
r.12(3)(a)(i) to (iii) or any one of them is not, however, fatal
to the claim of juvenility, for sub-r. 3(b) of r.12 makes a
provision for determination of the question on the basis
B
of the medical examination of the accused in the
C
'absence' of the certificates. [para 4) (283-E]
1.6 The expression 'absence' appearing in r.12(3) is
not defined under the Act or the Rules. The word shall,
therefore, be given its literal dictionary meaning. It is
axiomatic that the use of the expression and the context D
in which the same has been used strongly suggests that
'absence' of the documents mentioned in r.12(3) (a)(i) to
(iii) may be either because the same do not exist or the
same cannot be produced by the person relying upon
them. Mere non-production may not, therefore, disentitle
E
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 is, in the peculiar facts and
circumstances .of a case, of the opinion that the nonproduction is deliberate or intended to either mislead the
court or suppress the truth. It is in this class of cases that
F
the court may have to exercise its powers and discretion
with a certain amount of insight into the realities of life.
One of such realities is that illiteracy and crime have a
close nexus though one may not be directly proportional
G
to the other. Juvenile delinquency in this country as
elsewhere in the world, springs from poverty and
unemployment, more than it does out of other causes. A
large number of those engaged in criminal activities, may
never have had. the opportunity to go to school.
H
252
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A Therefore, the approach at the stage of directing the
enquiry has of necessity to be more liberal, lest, there is
avoidable miscarriage of justice. Suffice it ,to say that
while affidavits may not be generally accepted as a good
enough basis for directing an enquiry, that they are not
B so accepted is not a 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
c 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 enquiry uls 7 A ought to be
conducted. It will eventually depend on how the court
evaluates such material for a prima facie conclusion that
0 the court may or may not direct an enquiry. [paras 4-7)
[283-H; 284-A, 0-H; 286-B-D]
Black's Law Dictionary; 'Juvenile Delinquency and
Justice System' by B.N. Mishra, Study conducted by National
Crime Records Bureau (NCRB) Mini~try of Home Affairs,
E Government of India - Reporl 2011 - referred to.
Case Law Reference:
2009 (7) SCR 623
referred to
para 2
F
(1989) 3 sec 1
referred to
para 14
1995 (2) Suppl. SCR 590 referred to
para 15
1997 (4) Suppl. SCR 711 referred to
para 16
1993 (1) Suppl. sec 409 referred to
para 17
G
2009 (3) SCR 468
relied on
para 22
2005 (1) SCR 1019
referred to
para 25
2010 (13) SCR 879
referred to
para 31
H
2011 (1) SCR 173
referred to
para 32
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE
253
OF WEST BENGAL
2011 (1) SCR 770
2011 (9) SCR 859
referred to
referred to
para 33
para 34
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1193 of 2006.
From the Judgment & Order dated 12.05.2006 of the
Hon'ble High Court at Calcutta in C.R.A. No. 240 of 2003.
WITH
Criminal Appeal No. 1397/2003,
SLP (Crl.) No. 1451/2006,
R.P. (Criminal) No. 390/2010 in SLP (Crl.) No. 2542 of 2010.
SLP (Crl.) No. 8768/2011,
SLP (Crl.) No. 8855/2011,
Criminal Appeal No. 654/2002,
and SLP (Crl.) No. 616/2012
Pradip Kr. Ghosh, S.R. Singh, Nagendra Rai, Rauf Rahim,
Yadunandan Bansal, Chanchan Kumar Ganguli, Rajiv Mehta,
V. Sivasubramanian, Yogesh Swaroop, Antaryami Upadhyay,
Dr. Kailash Chand, Sandhya Goswami, Nikhar Berry, Smarhar
Singh, Shantanu Sagar, Gopi Raman, Preeti Rashmi, Amrita
Rai, T. Mahipal, Kabir Shankar Bose, Abhijit Sengupta, B.P.
Yadav, Tara Chandra Sharma, Neelam Sharma, Kamal Mohan
Gupta, Kavita Wadia, Vivek Vishnoi, M.R. Shamshad, Manish
Kumar, Chandan Kumar, (For Gopal Singh), Kuldip Singh,
Mohit Mudgil for the Appearing Parties.
The Judgments of the Court was delivered by
A
B
c
D
E
F
G
R.M. LODHA, J. 1. Delinquent juveniles need to be dealt
with differently from adults. International covenants and domestic
laws in various countries have prescribed minimum standards
H
254
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A for delinquent juveniles and juveniles in conflict with law. These
standards provide what orders may be passed regarding
delinquent juveniles and the orders that may not be passed
against them. This group of matters raises the question of when
should a claim of juvenility be recognised and sent for
B determination when it is raised for the first time in appeal or
before this Court or raised in trial and appeal but not pressed
and then pressed for the first time before this Court or even
raised for the first time after final disposal of the case.
2. It so happened that when criminal appeal preferred by
C Abuzar Hossain @ Gulam Hossain came up for consideration
before a two-Judge Bench (Harjit Singh Bedi and J.M. Panchal,
JJ) on 10.11.2009, on behalf of the appellant, a plea of juvenility
on the date of incident was raised. In support of the contention
that the appellant was juvenile on the date of incident and as
D such he could not have been tried in a normal criminal court,
reliance was placed on a deCision of this Court in Gopinath
Ghosh v. State of West Bengar. On the other hand, on behalf
of the respondent, State of West Bengal, in opposition to that
plea, reliance was placed on a later decision of this Court in
E Akbar Sheikh and others v. State of West Benga/2. The Bench
found that there was substantial discordance in the approach
of the matter on the question of juvenility in Gopinath Ghosh1
on the one hand and the two decisions of this Court in Akbar
Sheikh2 and Hari Ram v. State of Rajasthan and Anothefl.
F The Bench was of the opinion that as the issue would arise in
a very large number of cases, it was required to be referred to
a larger Bench as the judgment in Akbar Sheikh2 and Gopinath
Ghosh1 had been rendered by co-ordinate Benches of this
G
Court. This is how these matters have come up before us.
3. The Parliament felt it necessary that uniform juvenile
justice system should be available throughout the country which
1.
1984 (Supp) sec 228.
2.
(2009) 1 sec 415.
H 3.
(2009) 13 sec 211.
ABUZAR HOSSAIN@ GULAM HOSSAIN v. STATE
255
OF WEST BENGAL [R.M. LODHA, J.]
should make adequate provision for dealing with all aspects
A
in the changing social, cultural and economic situation in the
country and there was also need for larger involvement of
informal systems and community based welfare agencies in the
care, protection, treatment, development and rehabilitation of
such juveniles and with these objectives in mind, it enacted
B
Juvenile Justice Act, 1986 (for short, '1986 Act').
4. 1986 Act was replaced by the Juvenile Justice (Care
and Protection of Children) Act, 2000 (for short, '2000 Act').
2000 Act has been enacted to carry forward the constitutional
philosophy engrafted in Articles 15(3), 39(e) and (f), 45 and 47
C
of the Constitution and also incorporate the standards
prescribed in the Convention on the Rights of the Child, United
Nations Standard Minimum Rules for the Administration of
Juvenile Justice, 1985, the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty (1990) and all
D
other relevant international instruments. Clause (k) of Section
2 defines "juvenile" or "child" to mean a person who has not
completed eighteenth year of age. Clause (I) of Section 2
defines "juvenile in conflict with law" to mean a juvenile who is
alleged to have committed an offence and has not completed
E
eighteenth year of age on the date of commission of such
offence.
5. Section 3 of 2000 Act provides for continuation of
inquiry in respect of juvenile who has ceased to be a juvenile.
F
It reads as under:
"S.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
G
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
H
256
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A
person as if such person had continued to be a juvenile
or a child."
6. Chapter II of 2000 Act deals with juvenile in conflict with
law. This Chapter comprises of Sections 4 to 28. Section 4
B provides for constitution of juvenile justice board and its
composition. Section 5 provides for procedure, etc. in relation
to juvenile justice board. Section 6 deals with the powers of
juvenile justice board. Section 6 reads as under:
c
D
E
"S.6 . Powers of Juvenile Justice Board.-(1) Where a
Board has been constituted for any district, such Board
shall, notwithstanding anything contained in any other law
for the time being in force but save as otherwise expressly
provided in this Act, have power to deal. exclusively with
all proceedings under this Act relating to juvenile in conflict
with law.
(2) The powers conferred on the Board by or under this
Act may also be exercised by the High Court and the Court
of Session, v1hen the proceeding comes before them in
appeal, revision or otherwise."
7. By ;..ct 33 of 2006, the Parliament brought in significant
changes in 2000 Act. Inter alia, Section 7A came to be inserted.
This Section is lynchpin around which the debate has centered
around in these matters. Section 7 A provides for procedure to
F be followed when claim of juvenility is raised before any court.
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It reads as follows:
"S.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
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE
257
OF WEST BENGAL [R.M. LODHA, J.]
or a child or not, stating his age as nearly as may be:
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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
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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
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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."
8. Section 49 of 2000 Act deals with presumption and o
determination of age. This Section reads as under:
"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
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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
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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 h~s been made
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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."
9. Sections 52 and 53 deal with appeals and revision.
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A Section 54 provides for procedure in inquiries, appeals and
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revision proceedings, which reads as follows:
"S.54 . Procedure in inquiries, appeals and revision
proceedings.~(1 )Save as otherwise expressly provided
by this Act, a competent authority while holding any inquiry
under any of the provisions of this Act, shall follow such
procedure as may be prescribed and subject thereto, shall
follow, as far as may be, the procedure laid down in the
Code of Criminal Procedure, 1973 (2 of 1974) for trials in
summons cases.
(2) Save as otherwise expressly provided by or under this
Act, the procedure to be followed in hearing appeals or
revision proceedings under this Act shall be, as far as
practicable, in accordance with the provisions of the Code
of Criminal Procedure, 1973(2 of 1974)."
10. In exercise of powers conferred by the proviso to subsection (1) of Section 68 of the 2000 Act, the Central
Government has framed the rules entitled "The Juvenile Justice
E (Care and Protection of Children) Rules, 2007" (for short, "2007
Rules"). The relevant rule for the purposes of consideration of
the issue before us is Rule 12 which provides for procedure to
be followed in determination of age. Since this Rule has a
direct bearing for consideration of the matter, it is quoted as it
is. It reads as under:
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"R. 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
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE
259
OF WEST BENGAL [R.M. LODHA, J.]
tht. juvenile or the child or as the case may be the juvenile
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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
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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;
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(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
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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
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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
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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,
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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.
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(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 conclusion 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 ls 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 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."
11. It is not necessary to refer to facts of criminal appeal
preferred by Abuzar Hossain @ Gulam Hossain or the other
F referred matters. Suffice it to say that in criminal appeal of
Abuzar Hossain @ Gu lam Hossain, in support of the argument
that he was juvenile on the date of incident and as such he could
not have been tried in the normal criminal court, his statement
recorded under Section 313 of the Code of Criminal Procedure,
G 1973 (for short, 'the Code') was pressed into service. It was,
however, found from the evidence as well as the judgments of
the trial court and the High Court that the issue of juvenility was
not pressed at any stage and no evidence whatsoever was led
by him to prove the age. It was in the backdrop of these facts
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ABUZAR HOSSAIN@ GULAM HOSSAIN v. STATE
261
OF WEST BENGAL [R.M. LODHA, J.]
that Gopinath Ghosh1 was relied upon in support of the
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proposition that notwithstanding the fact that the plea of juvenility
had not been pressed, it was obligatory on the court to go into
the question of juvenility and determine his age.
12. Gopinath Ghosh1 was a case where he was convicted
along with two others for an offence under Section 302 read
with Section 34 of IPC and sentenced to suffer imprisonment
B
for life by the trial court. He and two co-accused preferred
criminal appeal before Calcutta High Court. In the appeal, two
accused were acquitted while the conviction and sentence of
Gopinath Ghosh was maintained. Gopinath Ghosh filed appeal
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by special leave before this Court. On his behalf, the argument
was raised that on the date of offence, i.e. on 19.8.1974 he was
aged below 18 years and he is therefore a "child" within the
meaning of the expression in the West Bengal Children Act,
1959 and, therefore, the court had no jurisdiction to sentence
him to suffer imprisonment after holding a trial. Having regard
to the contention raised on behalf of the appellant, this Court
framed an issue for determination; what was the age of the
accused Gopinath Ghosh (appellant) on the date of offence for
which he was tried and convicted? The issue was remitted to
the Sessions Judge, Nadia to ascertain his age and submit the
finding. The Additional Sessions Judge, First Court, Nadia,
accordingly, held an inquiry and after recording the evidence
and calling for medical report and after hearing parties certified
that Gopinath Ghosh was aged between 16 and 17 years on
the date of the offence. The finding sent by the Additional
Sessions Judge was not questioned before this Court. The
Court examined the scheme of West Bengal Children Act, 1959
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and also noted Section 24 thereof which had an overriding
effect taking away the power of the court to impose the sentence
G
of imprisonment unless the case was covered by the proviso
thereto. Then in paragraph 10 (pg. 231) of the Report, this Court
held as under:
"10. Unfortunately, in this case, appellant Gopinath Ghosh
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never questioned the jurisdiction of the Sessions Court
which tried him for the offence of murder. Even the
appellant had given his age as 20 years when questioned
by the learned Additional Sessions Judge. Neither the
appellant nor his learned counsel appearing before the
learned Additional Sessions Judge as well as at the
hearing of his appeal in the High Court ever questioned
the jurisdiction of the trial court to hold the trial of the
appellant, nor was it ever contended that he was a juvenile
delinquent within the meaning of the Act and therefore, the
. Court had no jurisdiction to try him, as well as the Court
had no jurisdiction to sentence him to suffer imprisonment
for life. It was for the first time that this contention was
raised before this Court. However, in view of the underlying
intendment and beneficial provisions of the Act read with
clause (f) of Article 39 of the Constitution which provides
that the State shall direct its policy towards securing that
children are given opportunities and facilities to develop
in a healthy manner and in conditions of freedom and
dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment,
we consider it proper not to allow a technical contention
that this contention is being raised in this Court for the first
time to thwart the benefit of the provisions being extended
to the appellant, if he was otherwise entitled to it."
13. In paragraph 13 (pgs. 232-233) of the Report, the Court
observed as under:
"13. Before we part with this judgment, we must take
notice of a developing situation in recent months in this
Court that the contention about age of a convict and
claiming the benefit of the relevant provisions of the Act
dealing with juvenile delinquents prevalent in various States
is raised for the first time in this Court and this Court is
required to start the inquiry afresh. Ordinarily this Court
would be reluctant to entertain a contention based on
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE
263
OF WEST BENGAL [R.M. LODHA, J.]
factual averments raised for the first time before it.
A
However, the Court is equally reluctant to ignore, overlook
or nullify the beneficial provisions of a very socially
progressive statute by taking shield behind the technicality
of the contention being raised for the first time in this Court.
A way has therefore, to be found from this situation not
8
conducive to speedy disposal of cases and yet giving
effect to the letter and the spirit of such socially beneficial
legislation. We are of the opinion that whenever a case is
brought before the Magistrate and the accused appears
to be aged 21 years or below, before proceeding with the
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trial or undertaking an inquiry, an inquiry must be made
about the age of the accused on the date of the occurrence.
This ought to be more so where special Acts dealing with
juvenile delinquent are in force. If necessary, the Magistrate
may refer the accused to the Medical Board or the Civil
0
Surgeon, as the case may be, for obtaining creditworthy
evidence about age. The Magistrate may as well call upon
accused also to lead evidence about his age. Thereafter,
the learned Magistrate may proceed in accordance with
law. This procedure, if properly followed, would avoid a
journey upto the Apex Court and the return journey to the
grass-root court. If necessary and found expedient, the
High Court may on its administrative side issue necessary
instructions to cope with the situation herein indicated."
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14. In Bhoop Ram v. State of U.P. 4 , a two-Judge Bench
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of this Court was concerned with the question as to whether
the appellant Shoop Ram should have been treated as a "child"
within the meaning of Section 2(4) of the U.P. Children Act,
1951 and sent to an approved school for detention therein till
he attained the age of 18 years instead of being sentenced to
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undergo imprisonment in jail. In Bhoop Ram4, the Chief Medical
Officer, Bareilly gave a certificate that as per the radiology
examination and physical features, he appeared to be 30 years
of age as on 30.4.1987. Shoop Ram did not place any other
4.
(1989) 3 sec 1.
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A material before the Sessions Judge except the school
certificate to prove that he had not completed 16 years on the
date of commission of the offences. The Sessions judge
rejected the school certificate produced by him on the ground
that "it is not unusual that in schools ages are understated by
8
one or two years for future benefits". As regards medical
certificate the Sessions Judge observed that as he happened
to be about 28-29 years of age on 1.6.1987, he would have
completed 16 years on the date of occurrence. Before the
Court, on behalf of the appellant, Shoop Ram, it was contended
C that school certificate produced by him contained definite
information regarding date of birth and that should have
prevailed over the certificate of the doctor and the Sessions
Judge committed wrong in doubting the correctness of the
school certificate. This Court on consideration of the matter held
that appellant Shoop Ram could not have completed 16 years
D of age on 3.10.1975 when the occurrence took place and as
such he ought to have been treated as "child" within the
meaning of Section 2(4) of the U.P. Children Act, 1951 and
dealt with under Section 29 of the Act. The Court gave the
following reasons for holding appellant, Shoop Ram, a "child"
E on the date of occurrence of the incident:
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"7 ........ The first is that the appellant has produced a
school certificate which carries the date 24-6-1960 against
the column "date of birth". There is no material before us
to hold that the school certificate does not relate to the
appellant or that the entries therein are not correct in their
particulars. The Sessions Judge has failed to notice this
aspect of the matter and appears to have been carried
away by the opinion of the Chief Medical Officer that the
appellant appeared to be about 30 years of age as on 304-1987. Even in the absence of any material to throw
doubts about the entries in the school certificate, the
Sessions Judge has brushed it aside merely on the
surmise that it is not unusual for parents to understate the
age of their children by one or two years at the time of their
ABUZAR HOSSAIN @ GULAM HOSSAIN v. STATE 265
OF WEST BENGAL [R.M. LODHA, J.]
admission in schools for securing benefits to the children
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in their future years. The second factor is that the Sessions
Judge has failed to bear in mind that even the trial Judge
had thought it fit to award the lesser sentence of
imprisonment for life to the appellant instead of capital
punishment when he delivered judgment on 12-9-1977 on
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the ground the appellant was a boy of 17 years of age.