# Om Prakash @ Israel @ Raju @ Raju Das v. Union of India and Another

- **Citation:** 2025 INSC 43
- **Court:** Supreme Court of India
- **Decided:** 2025-01-08
- **Case number:** Criminal Appeal No. 4229 of 2024
- **Bench:** M.M. Sundresh, Aravind Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/om-prakash-israel-raju-raju-das-v-union-of-india-and-another-38829
- **Pages:** 41

## Headnote

Issue arose as regards plea of juvenility raised u/s.9(2) of the
Juvenile Justice (Care and Protection of Children) Act, 2015.
Headnotes†
Juvenile Justice (Care and Protection of Children) Act, 2015 -
s.9(2) - Plea of juvenility - Appellant charged for the offence of
culpable homicide amounting to murder, for incident occurred
in 1994 - On recording of statements in 2001, the appellant
stated his age as 20 years - After conviction, the appellant
raised the plea of juvenility during the hearing on sentence
that he was around 17 years at the time of occurrence -
Trial court, relying upon his statement regarding the bank
account, presumed that he was major and sentenced him to
death - Upheld by the High Court as also Supreme Court -
Review Petition thereagainst also dismissed - Mercy Petition
before the Governor also rejected - Thereafter, Writ Petition
u/Art.32 as also Curative Petition dismissed - Mercy Petition
filed before Hon'ble the President of India - During the
pendency, 2007 Rules came into effect - Ossification test done
and the Medical Age Certificate indicated that the appellant
was aged around 14 years at the time of the occurrence - By
Presidential Order, death sentence of the appellant commuted
to life imprisonment, with caveat that he shall not be released
until the attainment of 60 years of age - Subsequent Curative
Petition rejected - Appellant then filed Writ Petition before the
High Court challenging the Presidential Order and also for
seeking relief u/s.9(2) - Writ Petition dismissed holding that
the power of judicial review over an executive order passed
in exercise of Art. 72 is limited, and the proceedings against
the appellant had attained finality - Challenge to:
* Author
[2025] 1 S.C.R.
363
Om Prakash @ Israel @ Raju @ Raju Das v.
Union of India and Another
Held: No dispute that the appellant was only 14 years old at
the time of the commission of the offence - At every stage,
injustice has been inflicted by the Courts, either by ignoring the
documents or by casting a furtive glance - Appellant, despite
being illiterate, raised this plea one way or another, right from the
trial court up to the conclusion of the Curative Petition before this
Court - Approach of the Courts in the earlier round of litigation
cannot be sustained in the eye of law - Statement given by the
appellant at the time of the hearing on his sentence, also pale
into insignificance, as even then he would have been a minor at
the time of commission of the offence, under both the 2000 and
the 2015 Acts - Procedural mandate contemplated under the
1986 Act not followed by the courts below - Curative petition
dismissed without according any reason - Even the then existing
State Rules not duly followed - When the plea of juvenility was
raised, it should have been dealt with under the existing laws at
the relevant point of time, especially when there exists a tacit
and clear admission as to the age of the appellant - This Court
could have dealt with the writ petition filed u/Art.32, as it raised
independent prayer for the enforcement of a right conferred under
a social welfare legislation - In the subsequent writ petition filed
before the High Court, two different prayer made, the determination
of the appellant's plea of juvenility and consequent release, or
alternatively judicial review of the decision of the President or
the Governor and consequent release - Executive cannot be
construed to have undertaken an adjudication on the determination
of the age of the accused and first prayer being a distinct one
invoking s.9(2), the High Court erred in its reasoning - Appellant
has been suffering due to the error committed by the Courts -
His conduct in the prison is normal, with no adverse report - He
lost an opportunity to reintegrate into the society - Time which
he has lost, for no fault of his, can never be restored - Thus,
the sentence imposed in excess of the upper limit prescribed
under the relevant Act set aside, while maintaining the co

## Text

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[2025] 1 S.C.R. 362 : 2025 INSC 43
Om Prakash @ Israel @ Raju @ Raju Das
v.
Union of India and Another
(Criminal Appeal No. 4229 of 2024)
08 January 2025
[M.M. Sundresh* and Aravind Kumar, JJ.]
Issue for Consideration
Issue arose as regards plea of juvenility raised u/s.9(2) of the
Juvenile Justice (Care and Protection of Children) Act, 2015.
Headnotes†
Juvenile Justice (Care and Protection of Children) Act, 2015 -
s.9(2) - Plea of juvenility - Appellant charged for the offence of
culpable homicide amounting to murder, for incident occurred
in 1994 - On recording of statements in 2001, the appellant
stated his age as 20 years - After conviction, the appellant
raised the plea of juvenility during the hearing on sentence
that he was around 17 years at the time of occurrence -
Trial court, relying upon his statement regarding the bank
account, presumed that he was major and sentenced him to
death - Upheld by the High Court as also Supreme Court -
Review Petition thereagainst also dismissed - Mercy Petition
before the Governor also rejected - Thereafter, Writ Petition
u/Art.32 as also Curative Petition dismissed - Mercy Petition
filed before Hon'ble the President of India - During the
pendency, 2007 Rules came into effect - Ossification test done
and the Medical Age Certificate indicated that the appellant
was aged around 14 years at the time of the occurrence - By
Presidential Order, death sentence of the appellant commuted
to life imprisonment, with caveat that he shall not be released
until the attainment of 60 years of age - Subsequent Curative
Petition rejected - Appellant then filed Writ Petition before the
High Court challenging the Presidential Order and also for
seeking relief u/s.9(2) - Writ Petition dismissed holding that
the power of judicial review over an executive order passed
in exercise of Art. 72 is limited, and the proceedings against
the appellant had attained finality - Challenge to:
* Author
[2025] 1 S.C.R.
363
Om Prakash @ Israel @ Raju @ Raju Das v.
Union of India and Another
Held: No dispute that the appellant was only 14 years old at
the time of the commission of the offence - At every stage,
injustice has been inflicted by the Courts, either by ignoring the
documents or by casting a furtive glance - Appellant, despite
being illiterate, raised this plea one way or another, right from the
trial court up to the conclusion of the Curative Petition before this
Court - Approach of the Courts in the earlier round of litigation
cannot be sustained in the eye of law - Statement given by the
appellant at the time of the hearing on his sentence, also pale
into insignificance, as even then he would have been a minor at
the time of commission of the offence, under both the 2000 and
the 2015 Acts - Procedural mandate contemplated under the
1986 Act not followed by the courts below - Curative petition
dismissed without according any reason - Even the then existing
State Rules not duly followed - When the plea of juvenility was
raised, it should have been dealt with under the existing laws at
the relevant point of time, especially when there exists a tacit
and clear admission as to the age of the appellant - This Court
could have dealt with the writ petition filed u/Art.32, as it raised
independent prayer for the enforcement of a right conferred under
a social welfare legislation - In the subsequent writ petition filed
before the High Court, two different prayer made, the determination
of the appellant's plea of juvenility and consequent release, or
alternatively judicial review of the decision of the President or
the Governor and consequent release - Executive cannot be
construed to have undertaken an adjudication on the determination
of the age of the accused and first prayer being a distinct one
invoking s.9(2), the High Court erred in its reasoning - Appellant
has been suffering due to the error committed by the Courts -
His conduct in the prison is normal, with no adverse report - He
lost an opportunity to reintegrate into the society - Time which
he has lost, for no fault of his, can never be restored - Thus,
the sentence imposed in excess of the upper limit prescribed
under the relevant Act set aside, while maintaining the conviction
rendered - It is not a review of the Presidential Order, but a case
of giving the benefit of the provisions of the 2015 Act - State Legal
Services Authority to identify welfare scheme of the State/Central
Government, facilitating the appellant's rehabilitation and smooth
reintegration into the society upon his release, with emphasis
on his right to livelihood, shelter and sustenance guaranteed
u/Art.21. [Paras 44-54]
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Justice delivery system - Concept of truth - Duty of Court -
Explanation:
Held: Justice is nothing but a manifestation of the truth, which
transcends every other action - Primary duty of the Court is to make
a single-minded endeavour to unearth the truth hidden beneath
the facts - Court is a search engine of truth, with procedural and
substantive laws as its tools - When procedural law stands in the
way of the truth, the Court must find a way to circumvent it - When
substantive law does not facilitate the emergence of the truth, it
is the paramount duty of the Court to interpret the law in light of
its teleos - Such exercise warranted in a higher degree, while
considering a social welfare legislation - Court must discern the
truth, primarily from the material available on record in the form of
pleadings, and arguments duly supported by documents - Entire
judicial system meant for the discovery of the truth, it being the
soul of a decision - Presiding Officer expected to play an active
role, rather than a passive one. [Paras 4-6]
Juvenility - Juvenile justice - Rights of juvenile - Role of
juvenile courts and Constitutional Courts:
Held: Deviant behaviour of a child in conflict with law should
be a concern of the society as a whole - Child not responsible
for an act of crime, but rather victimized by it - Behaviour of a
child can be attributed to environment, the child grows in, and
genetics - Remedial measures may be employed for the benefit
of the child since the child does not choose the environment in
which it grows, deviant behaviour which is a result of exposure to
a given environment is evidence of rampant inequality - Thus, a
child who lives in a discriminatory environment, requires equitable
treatment on the touchstone of Arts. 14, 15(3) rw Art. 39 (e) and (f),
Arts. 45 and 47 - Court expected to play the role of parens patriae
by treating a child not as a delinquent, but as a victim, viewed
through the lens of reformation, rehabilitation and reintegration into
the society - Juvenile Court is a species of a parent - Delinquent,
who appears before the Court, is to be protected and re-educated,
rather than be judged and punished - Court to press into service
the benevolent provisions for rehabilitation introduced by the
Legislature - Juvenile Court assumes the role of an institution
rendering psychological services - Juvenile Court must don the
robes of a correction home for a deviant child - Furthermore,
since the need for taking care of a juvenile in conflict with law is
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Om Prakash @ Israel @ Raju @ Raju Das v.
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mandated by the Constitution, the role of the constitutional Courts
is significant - Even after the dismissal of a Special Leave Petition/
Statutory Criminal Appeal followed by incidental proceedings before
Supreme Court, where the plea of juvenility was not consciously
considered, there would be no bar on the constitutional Courts
to consciously take a deeper look - It is not an exercise of the
powers conferred u/Arts 32, 136 or 226, but an act in fulfilment of
a mandated duty enjoined upon the Courts, to give effect to the
laudable objective of a social welfare legislation - Constitution of
India, 1950 - Arts. 14, 15(3), 39(e), 39(f), 45, 47. [Paras 8-11, 23]
Juvenile Justice (Care And Protection Of Children) Act,
2015 - s.9(2) - Special homes - Plea of juvenility vis-à-vis
final disposal - Words "even after the final disposal of the
case" in s.9(2) - Significance:
Held: s. 9(2) being the heart and soul of the entire Act, must
be given its fullest meaning and interpretation - If the offence
is committed by a child, it cannot be treated otherwise than as
provided under the 2015 Act - After finding out the truth, necessary
consequences must follow - Sufficient opportunities must be given
to the child in conflict with law to get the benefit of the 2015 Act -
Merely because a casual adjudication has taken place does not
mean that a plea of juvenility cannot be raised subsequently - So
long as the right of a party subsists, one can never say that finality
has been attained - In a case where a plea has been raised, but
not adjudicated upon, the decision rendered thereunder would not
amount to attaining finality - In a case where the plea was not
treated as an application u/s.9(2) and, the procedure mandated
thereunder was not followed, the principle stated would apply as
right of raising the plea of juvenility has not ceased and, thus,
subsists. [Paras 21-22]
Juvenile Justice (Care and Protection of Children) Rules,
2007 - r.12, 12(3) - Procedure to be followed in determination
of age - Hierarchy of documents:
Held: While there is no difficulty in the application of the principal
Act inclusive of the procedural part, even for a juvenile in conflict
with law who has attained majority on or after 2001, r.12 must
be applied retrospectively even to those cases, especially where
no exercise was undertaken under any of the State Rules or the
erstwhile Acts, on earlier occasions - Sub-rule (3) of r.12 is a rule
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of evidence, which merely provides a hierarchy of documents in
the order of priority, to be taken note of and considered while
determining the age of a juvenile in conflict with law, in an ongoing
inquiry - Where a matriculation certificate is very much available,
a date of birth certificate from the school or a birth certificate given
by a local authority shall never be looked into - Only if none of the
said documents is available, can one go for a medical opinion - It
should not be misunderstood that even in those cases where due
inquiry was undertaken under the erstwhile enactments and the
relevant rules, one can seek a fresh inquiry u/r.12. [Paras 24-25]
Juvenility - Juvenility as an admitted fact - Rules of Evidence:
Held: Admission is a rule of evidence, it is a relevant fact - It
becomes relevant qua a fact in issue - When an admission is clear,
unambiguous, continuous and unequivocal, it becomes the best
form of evidence, and transforms itself into fact in issue - When
a party makes an admission, either by way of oral statement or
acknowledging a document authored by them, the Court must
proceed on that basis - Resultant relief, which is axiomatic, cannot
be denied on anvil of procedural law - Any contra view would
result in grave injustice - On an issue where there is no dispute,
denying a rightful relief would be an affront to fair play and justice -
However, the Court cannot construe a statement as an admission
and proceed on that basis - There is a subtle difference between
an unequivocal admission as against a statement which could be
construed to be so - Former can be the basis for a relief, latter
meant for adjudication vis-a-vis the facts of the case. [Para 27]
Maxim - Actus curiae neminem gravabit - Meaning:
Held: No one shall be prejudiced by an act of the Court - Mistake
committed by the Court cannot stand in the way of one's rightful
benefit - It is not the party which commits a mistake, but rather the
Court itself - Such a mistake cannot act as a barrier for the party
to get its due relief - However, mistake must be so apparent that it
does not brook any adjudication on the foundational facts. [Para 28]
Constitution of India - Arts. 72, 161 - Power of the President
and the Governor to grant pardon - Presidential order -
Judicial review:
Held: Power of pardon u/Art.72 and 161 is sovereign - It is power
of compassion and empathy, meant to remove or reduce all pains,
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Om Prakash @ Israel @ Raju @ Raju Das v.
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penalties and punishment suffered by a convict - Exercise of
this sovereign power by either the State or the Centre, is a final
grace given under the Constitution for the convict to reintegrate
into the society - Power u/Art.72 and 161 is not appellate or
revisional in nature, it is an executive power travelling on a
different channel - Challenge to the exercise of power u/Arts. 72
and 161 would involve limited judicial review - Courts will have
to exercise adequate caution and circumspection while dealing
with an executive order passed in exercise of the power conferred
u/Arts. 72 or 161 - When challenge is made to executive order,
with an independent prayer for exercising the power u/s.9(2),
they being distinct and independent, refusal of judicial review of
the former will not obliterate the mandatory duty pertaining to the
latter. [Paras 29-32]
Case Law Cited
Jasraj Inder Singh v. Hemraj Multanchand [1977] 2 SCR 973 :
(1977) 2 SCC 155; Mohan Singh v. State of M.P. [1999] 1
SCR 276 : (1999) 2 SCC 428; Shanmugam v. Ariya Kshatriya
Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam
[2012] 4 SCR 74 : (2012) 6 SCC 430; Maria Margarida Sequeria
Fernandes v. Erasmo Jack De Sequeira [2012] 3 SCR 841 :
(2012) 5 SCC 370; Sugandhi v. P. Rajkumar (2020) 10 SCC 706;
Munna Pandey v. State of Bihar [2023] 11 SCR 1005 : 2023 SCC
OnLine SC 1103; Aruna Ramachandra Shanbaug v. Union of India
[2011] 4 SCR 1057 : (2011) 4 SCC 454; Pratap Singh v. State of
Jharkhand [2005] 1 SCR 1019 : (2005) 3 SCC 551; Jethanand
and Sons v. State of Uttar Pradesh [1961] 3 SCR 754 : 1961
SCC OnLine SC 193 : AIR 1961 SC 794; Mohan Lal Magan Lal
Thacker v. State of Gujarat [1968] 2 SCR 685 : 1967 SCC OnLine
SC 137 : AIR 1968 SC 733; Lily Thomas v. Union of India [2000]
3 SCR 1081 : (2000) 6 SCC 224; A.R. Antulay v. R.S. Nayak
[1988] Supp. 1 SCR 1 : (1988) 2 SCC 602; Kehar Singh v. Union
of India [1988] Supp. 3 SCR 1102 : (1989) 1 SCC 204; State
of Haryana v. Jagdish [2010] 3 SCR 716 : (2010) 4 SCC 216;
Shatrughan Chauhan v. Union of India [2014] 1 SCR 609 : (2014)
3 SCC 1; Ram Narain v. State of Uttar Pradesh [2015] 9 SCR
200 : (2015) 17 SCC 699; Hari Dutt Sharma v. The State of Uttar
Pradesh, Order of the Supreme Court dated 07.02.2022 in Writ
Petition (Crl.) 367 of 2021; Hari Ram v. State of Rajasthan [2009]
7 SCR 623 : (2009) 13 SCC 211; Abdul Razzaq v. State of Uttar
Pradesh (2015) 15 SCC 637; T Barai v. Henry Ah Hoe and Another
368
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[1983] 1 SCR 905 : (1983) 1 SCC 177; Ram Deo Chauhan v.
Bani Kanta Das [2010] 15 SCR 957 : (2010) 14 SCC 209; Vinay
Sharma v. Union of India [2020] 10 SCR 393 : (2020) 4 SCC 391;
Pawan Kumar Gupta v. State (NCT of Delhi) [2020] 4 SCR 1055 :
(2021) 13 SCC 249 - referred to.
United Australia Limited v. Barclay's Bank Ltd [1941] A.C. 1 -
referred to.
List of Acts
Constitution of India; Juvenile Justice Act, 1986 (Act No. 53 of
1986); Juvenile Justice (Care and Protection of Children) Act, 2000
(Act No. 56 of 2000); Juvenile Justice (Care and Protection of
Children) Act, 2015 (Act No. 2 of 2016); Juvenile Justice (Care and
Protection of Children) Rules, 2007; Code of Criminal Procedure,
1973; Right to Information Act, 2005.
List of Keywords
Plea of juvenility; Special homes; Juvenility; Birth certificate issued
by School; Review Petition; Mercy Petition before the Governor;
Mercy Petition before Hon'ble the President of India; Ossification
test; Medical Age Certificate; Presidential Order; Death sentence;
Life imprisonment; Curative Petition; Executive order; Social
welfare legislation; State Legal Services Authority; Rehabilitation
and reintegration into the society upon release; Right to livelihood,
shelter and sustenance guaranteed u/Art.21; Justice delivery system;
Concept of truth; Duty of Court; Procedural law; Substantive law;
Judicial system; Juvenile justice; Rights of juvenile; Role of juvenile
courts; Role of Constitutional Courts; Deviant behaviour of a child;
Inequality; Environment; Plea of juvenility vis-à-vis final disposal;
Even after the final disposal of the case; Determination of age;
Hierarchy of documents; Matriculation certificate; Birth certificate
from school; Birth certificate by local authority; Juvenility as an
admitted fact; Rules of Evidence; Maxim; Actus curiae neminem
gravabit; Power of the President to grant pardon; Power of the
Governor to grant pardon; Presidential order; Judicial review; United
Nations Standard Minimum Rules for the Administration of Juvenile
Justice, 1985; United Nations Rules for the Protection of Juveniles
Deprived of their Liberty, 1990; Hague Convention on Protection of
Children and Cooperation in respect of Intercountry Adoption, 1993.
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Om Prakash @ Israel @ Raju @ Raju Das v.
Union of India and Another
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
4229 of 2024
From the Judgment and Order dated 23.08.2019 of the High Court
of Uttarakhand at Nainital in WPCRL No. 1531 of 2017
Appearances for Parties
Dr. S. Muralidhar, Sr. Adv., Prateek K Chadha, Ms. Ninni Susan
Thomas, M.A. Karthik, Maitreya Subramaniam, Ms. Pallak Bhagat,
Yash S Vijay, Ms. Sakshi Jain, Ms. Pooja B Mehta, Sreekar Aechuri,
Aniket Chauhaan, Arjun Nayyar, Advs. for the Appellant.
K M Nataraj, A.S.G., Shailesh Madiyal, Sr. Adv., Digvijay Dam,
Raghav Sharma, Ms. Mrinal Elker Mazumdar, Vinayak Sharma,
Arvind Kumar Sharma, Ms. Vanshaja Shukla, Ms. Ankeeta Appanna,
Ms. Rachna Gandhi, Siddhant Yadav, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
M. M. Sundresh, J.
1.
Heard the Learned Senior Counsel Dr. S. Muralidhar for the Appellant,
and Learned Additional Solicitor General Mr. K.M. Nataraj and Learned
Counsel Ms. Vanshaja Shukla for the Respondents. We have also
carefully perused the written arguments along with the documents,
filed by both the sides in respect of their respective contentions.
2.
We are dealing with a case where grave injustice has been
perpetrated, on account of the consistent failure on part of the judicial
machinery to recognise and act upon the constitutional mandate visa-vis the plea of juvenility. Lord Atkin's words of wisdom in United
Australia Limited v. Barclay's Bank Ltd., [1941] A.C. 1 at p.29
become relevant in the aforementioned context:
"...When these ghosts of the past stand in the
path of justice clanking their medieval chains the
proper course for the judge is to pass through them
undeterred."
(emphasis supplied)
370
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3.
We are further reminded of the words of V.R. Krishna Iyer J., on the
laudable ideals of truth and justice in Jasraj Inder Singh v. Hemraj
Multanchand (1977) 2 SCC 155:-
"8. ...Truth, like song, is whole and half-truth can be
noise; Justice is truth, is beauty and the strategy of
healing injustice is discovery of the whole truth and
harmonising human relations. Law's finest hour is
not in meditating on abstractions but in being the
delivery agent of full fairness. This divagation is
justified by the need to remind ourselves that the
grammar of justice according to law is not little
litigative solution...."
(emphasis supplied)
TRUTH AND THE COURT
4.
Justice is nothing but a manifestation of the truth. It is truth which
transcends every other action. The primary duty of a Court is to make
a single-minded endeavour to unearth the truth hidden beneath the
facts. Thus, the Court is a search engine of truth, with procedural
and substantive laws as its tools.
5.
When procedural law stands in the way of the truth, the Court must
find a way to circumvent it. Similarly, when substantive law, as it
appears, does not facilitate the emergence of the truth, it is the
paramount duty of the Court to interpret the law in light of its teleos.
Such an exercise is warranted in a higher degree, particularly while
considering a social welfare legislation.
6.
In its journey, the Court must discern the truth, primarily from the
material available on record in the form of pleadings, and arguments
duly supported by documents. It must be kept in mind that the entire
judicial system is meant for the discovery of the truth, it being the
soul of a decision. For doing so, a Presiding Officer is expected to
play an active role, rather than a passive one.
7.
We shall now place on record the views expressed and judgments
rendered on the concept of truth. Justice V.R. Krishna Iyer, at the 18th
Annual Conference of the American Judges Association at Seattle,
Washington State. (1979) 1 SCC J-7, stated thus-
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"Our profession is totally committed to Justiceindividual, social and spiritual. Truth, holistic truth,
is the basis of Justice and thus the great question
of history, What is Justice, is also the perennial
interrogation, What is Truth? Once we awaken to this
profound core, our attitude to pathological crime and
therapeutic punishment, to inner harmony and societal
peace, will be transformed into a high pursuit of truth
beyond "the madding crowd's ignoble strife."...
xxx
xxx
xxx
...The progressive manifestation of the divinity in man
is the recognition of the dignity and worth of the human
person and this curative process is the healing hope of
decriminalization-not stone walls nor iron bars nor other
subtle barbarities. This know-how of humanization alone
can dissolve the dilemma."
(emphasis supplied)
Mohan Singh v. State of M.P. (1999) 2 SCC 428
"11. ...Efforts should be made to find the truth, this is
the very object for which courts are created. To search
it out, the courts have been removing the chaff from
the grain. It has to disperse the suspicious cloud and
dust out the smear of dust as all these things clog the
very truth. So long as chaff, cloud and dust remain,
the criminals are clothed with this protective layer to
receive the benefit of doubt. So it is a solemn duty of
the courts, not to merely conclude and leave the case
the moment suspicions are created. It is the onerous
duty of the court, within permissible limit, to find out
the truth...."
(emphasis supplied)
Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya
Nandhavana Paripalanai Sangam (2012) 6 SCC 430
"Entire journey of a Judge is to discern the truth
24. The entire journey of a Judge is to discern the
truth from the pleadings, documents and arguments
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of the parties. Truth is the basis of the justice delivery
system...."
(emphasis supplied)
Maria Margarida Sequeria Fernandes v. Erasmo Jack De
Sequeira (2012) 5 SCC 370
"33. The truth should be the guiding star in the entire
judicial process. Truth alone has to be the foundation
of justice. The entire judicial system has been created
only to discern and find out the real truth. Judges at
all levels have to seriously engage themselves in the
journey of discovering the truth. That is their mandate,
obligation and bounden duty. Justice system will
acquire credibility only when people will be convinced
that justice is based on the foundation of the truth.
xxx
xxx
xxx
44. Malimath Committee on Judicial Reforms heavily
relied on the fact that in discovering truth, the Judges
of all courts need to play an active role. The Committee
observed thus:
'2.2. ... In the adversarial system truth is supposed
to emerge from the respective versions of the facts
presented by the prosecution and the defence before
a neutral Judge. The Judge acts like an umpire to see
whether the prosecution has been able to prove the
case beyond reasonable doubt....
xxx
xxx
xxx
...The Judge in his anxiety to maintain his position of
neutrality never takes any initiative to discover truth.
He does not correct the aberrations in the investigation
or in the matter of production of evidence before court.
xxx
xxx
xxx
2.15. The adversarial system lacks dynamism because it
has no lofty ideal to inspire. It has not been entrusted with a
positive duty to discover truth as in the inquisitorial system.
When the investigation is perfunctory or ineffective,
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Judges seldom take any initiative to remedy the
situation. During the trial, the Judge does not bother if
relevant evidence is not produced and plays a passive
role as if he has no duty to search for truth....
xxx
xxx
xxx
2.16.9. Truth being the cherished ideal and ethos of
India, pursuit of truth should be the guiding star of the
criminal justice system. For justice to be done truth
must prevail. It is truth that must protect the innocent
and it is truth that must be the basis to punish the
guilty. Truth is the very soul of justice. Therefore,
truth should become the ideal to inspire the courts to
pursue. This can be achieved by statutorily mandating
the courts to become active seekers of truth. It is of
seminal importance to inject vitality into our system
if we have to regain the lost confidence of the people.
Concern for and duty to seek truth should not become
the limited concern of the courts. It should become
the paramount duty of everyone to assist the court
in its quest for truth."
(emphasis supplied)
Sugandhi v. P. Rajkumar (2020) 10 SCC 706
"9. It is often said that procedure is the handmaid of
justice. Procedural and technical hurdles shall not be
allowed to come in the way of the court while doing
substantial justice. If the procedural violation does
not seriously cause prejudice to the adversary party,
courts must lean towards doing substantial justice
rather than relying upon procedural and technical
violation. We should not forget the fact that litigation
is nothing but a journey towards truth which is the
foundation of justice and the court is required to take
appropriate steps to thrash out the underlying truth in
every dispute. Therefore, the court should take a lenient
view when an application is made for production of the
documents under sub-rule (3)."
(emphasis supplied)
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Munna Pandey v. State of Bihar, 2023 SCC OnLine SC 1103
"68. The role of a judge in dispensation of justice after
ascertaining the true facts no doubt is very difficult one.
In the pious process of unravelling the truth so as
to achieve the ultimate goal of dispensing justice
between the parties the judge cannot keep himself
unconcerned and oblivious to the various happenings
taking place during the progress of trial of any case.
No doubt he has to remain very vigilant, cautious,
fair and impartial, and not to give even a slightest of
impression that he is biased or prejudiced either due
to his own personal convictions or views in favour of
one or the other party. This, however, would not mean
that the Judge will simply shut his own eyes and be
a mute spectator, acting like a robot or a recording
machine to just deliver what stands feeded by the
parties.
xxx
xxx
xxx
70. This Court has condemned the passive role played
by the Judges and emphasized the importance and
legal duty of a Judge to take an active role in the
proceedings in order to find the truth to administer
justice and to prevent the truth from becoming a
casualty...."
(emphasis supplied)
JUVENILE JUSTICE
8.
A child is a product of the present, in need of being moulded, to
thrive in the future. Therefore, deviant behaviour of a child in conflict
with law should be a concern of the society as a whole. One must
not lose sight of the fact that the child is not responsible for an act
of crime, but is rather victimized by it. Such a child is nothing but
an inheritor of crime, a legacy which it does not wish to imbibe. The
behaviour of a child can be attributed, possibly to two counts, namely,
the environment that the child grows in, and genetics. On the second
count, there is abundant research and literature available. However,
we do not wish to venture much into this, particularly in light of the
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innumerable permutations and combinations that could arise out of
the interaction between these two counts.
9.
On the first count, various factors such as socio-economic, political
and cultural background, and life experience, amongst others, become
relevant. Thus, remedial measures may be employed for the benefit
of the child. Since the child does not choose the environment in
which it grows, deviant behaviour which is a result of exposure to
a given environment is evidence of rampant inequality. Therefore,
a child who lives in such a discriminatory environment, requires
equitable treatment on the touchstone of Article 14 of the Constitution
of India, 1950 (hereinafter referred to as "the Constitution").
Article 15(3) read with Article 39 (e) and (f), Article 45 and Article 47
of the Constitution, in the form of the Fundamental Rights and the
Directive Principles of State Policy, emphasise on the need for special
care for children. The relevant provisions in the Constitution which
form the foundation of juvenile justice are as under:
Article 15 of the Constitution
"15. Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth.-
xxx
xxx
xxx
(3) Nothing in this article shall prevent the State from
making any special provision for women and children."
(emphasis supplied)
Article 39 of the Constitution
"39. Certain principles of policy to be followed by
the State.-The State shall, in particular, direct its policy
towards securing-
(a) that the citizens, men and women equally, have the
right to an adequate means to livelihood;
(b) that the ownership and control of the material resources
of the community are so distributed as best to subserve
the common good;
(c) that the operation of the economic system does
not result in the concentration of wealth and means of
production to the common detriment;
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(d) that there is equal pay for equal work for both men
and women;
(e) that the health and strength of workers, men and
women, and the tender age of children are not abused
and that citizens are not forced by economic necessity
to enter avocations unsuited to their age or strength;
(f) 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."
(emphasis supplied)
Article 45 of the Constitution
"45. Provision for early childhood care and education
to children below the age of six years.-The State
shall endeavour to provide early childhood care and
education for all children until they complete the age
of six years."
(emphasis supplied)
10. In view of the said constitutional mandate, the Court is expected to
play the role of parens patriae by treating a child not as a delinquent,
but as a victim, viewed through the lens of reformation, rehabilitation
and reintegration into the society.
11. Thus, a Juvenile Court is a species of a parent. A delinquent, who
appears before the Court, is to be protected and re-educated, rather
than be judged and punished. It is for this purpose, that the Court will
have to press into service the benevolent provisions for rehabilitation
introduced by the Legislature. A Juvenile Court assumes the role of
an institution rendering psychological services. It must forget that it
is acting as a Court, and must don the robes of a correction home
for a deviant child. In Aruna Ramachandra Shanbaug v. Union of
India (2011) 4 SCC 454, this Court recognised the need for Courts
to assume the role of parens patriae and stated thus:
"86. ...As stated by Balcombe, J. in J. (A Minor) (Wardship:
Medical Treatment), In re [(1990) 3 All ER 930 (CA)],
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the Court as representative of the Sovereign as
parens patriae will adopt the same standard which
a reasonable and responsible parent would do. The
parens patriae (father of the country) jurisdiction was
the jurisdiction of the Crown, which, as stated in Airedale
[1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821
(CA and HL)], could be traced to the 13th century. This
principle laid down that as the Sovereign it was the
duty of the King to protect the person and property
of those who were unable to protect themselves.
The Court, as a wing of the State, has inherited the
parens patriae jurisdiction which formerly belonged
to the King.
xxx
xxx
xxx
Doctrine of parens patriae
126. The doctrine of parens patriae (father of the country)
had originated in British law as early as in the 13th century.
It implies that the King is the father of the country and is
under obligation to look after the interest of those who are
unable to look after themselves. The idea behind parens
patriae is that if a citizen is in need of someone who
can act as a parent who can make decisions and
take some other action, sometimes the State is best
qualified to take on this role.
127. In the Constitution Bench decision of this Court in
Charan Lal Sahu v. Union of India [(1990) 1 SCC 613]
the doctrine has been explained in some detail as follows:
(SCC p. 648, para 35)
"35. ... In the 'Words and Phrases' Permanent
Edn., Vol. 33 at p. 99, it is stated that parens
patriae is the inherent power and authority of a
legislature to provide protection to the person
and property of persons non sui juris, such as
minor, insane, and incompetent persons, but
the words parens patriae meaning thereby 'the
father of the country', were applied originally
to the King and are used to designate the State
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referring to its sovereign power of guardianship
over persons under disability. Parens patriae
jurisdiction, it has been explained, is the right
of the sovereign and imposes a duty on [the]
sovereign, in public interest, to protect persons
under disability who have no rightful protector.
The connotation of the term parens patriae differs
from country to country, for instance, in England
it is the King, in America it is the people, etc. The
Government is within its duty to protect and to
control persons under disability."
(emphasis in original)
The duty of the King in feudal times to act as parens
patriae (father of the country) has been taken over in
modern times by the State.
128. In Heller v. DOE [125 L Ed 2d 257 : 509 US 312
(1992)] Mr Kennedy, J. speaking for the US Supreme
Court observed: (US p. 332)
" '... the State has a legitimate interest under its
parens patriae powers in providing care to its
citizens who are unable ... to care for themselves'
[Ed.: As observed in Addington v. Texas, 441 US
418 at p. 426.]".
129. In State of Kerala v. N.M. Thomas [(1976) 2 SCC
310 : 1976 SCC (L&S) 227 : (1976) 1 SCR 906], SCR at
p. 951 Mr Mathew, J. observed: (SCC p. 343, para 64)
"64. ... the Court also is 'State' within the meaning
of Article 12 (of the Constitution)...."
130. In our opinion, in the case of an incompetent
person who is unable to take a decision whether to
withdraw life support or not, it is the Court alone,
as parens patriae, which ultimately must take this
decision, though, no doubt, the views of the near
relatives, next friend and doctors must be given due
weight."
(emphasis supplied)
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JUVENILE JUSTICE LEGISLATIONS IN INDIA:
THE JUVENILE JUSTICE ACT, 1986 (Act No. 53 of 1986)
12. We now touch upon the first Central enactment introduced way back
in the year 1986, in the form of the Juvenile Justice Act, 1986 (Act
No. 53 of 1986) (hereinafter referred to as the "1986 Act"). This was
the maiden attempt by the Central Legislature for a comprehensive
and uniform set of national rules for juveniles, recognising the need
to treat them separately from adults. The term 'Juvenile' has been
defined under Section 2(h) of the 1986 Act as under:
Section 2(h)
"2. Definitions.-In this Act, unless the context otherwise
requiresxxx
xxx
xxx
(h) "juvenile" means a boy who has not attained the age
of sixteen years or a girl who has not attained the age of
eighteen years"
13. Though the 1986 Act did not specifically take into consideration the
mandate of the Constitution, the Legislature's concern for juveniles
is evident from its provisions, including Section 32 of the 1986 Act,
which made it obligatory on the part of the Competent Authority to
make due inquiry as to the age of the person brought before it.
Section 32
"32. Presumption and determination of age.-(1) Where
it appears to a competent authority that a person brought
before it under any of the provisions of this Act (otherwise
than for the purpose of giving evidence) is a juvenile, the
competent authority shall make due inquiry as to the
age of that person and for that purpose shall take
such evidence as may be necessary and shall record a
finding whether the person is a juvenile or not, stating
his age as nearly as may be.
(2) No order of a competent authority shall be deemed
to have become invalid merely by any subsequent proof
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that the person in respect of whom the order has been
made is not a juvenile, and the age recorded by the
competent authority to be the age of the person so
brought before it shall, for the purposes of this Act,
be deemed to be the true age of that person."
(emphasis supplied)
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)
ACT, 2000 (Act No. 56 of 2000)
14. A much more comprehensive and modern exercise undertaken by
the Central Legislature, taking due note of Article 15(3), clauses (e)
and (f) of Article 39, Article 45 and Article 47 of the Constitution,
mandating stakeholders to ensure that all the needs of children
are fulfilled by elevating them to the status of basic human rights,
is the enactment of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (Act No. 56 of 2000) (hereinafter referred to as
the "2000 Act"). While doing so, certain ideas were borrowed from
international conventions and covenants including the United Nations
Standard Minimum Rules for the Administration of Juvenile
Justice, 1985 (hereinafter referred to as "the Beijing Rules"), and
the United Nations Rules for the Protection of Juveniles Deprived
of their Liberty, 1990, amongst other instruments. Section 2(k) and
2(l) of the 2000 Act as amended by Act No. 33 of 2006 defines a
juvenile as under:
Section 2 (k) and (l)
"2. Definitions- In this Act, unless the context otherwise
requiresxxx
xxx
xxx
(k) "juvenile" or "child" means a person who has not
completed eighteenth year of age;
(l) "juvenile in conflict with law" means a juvenile who
is alleged to have committed an offence and has not
completed eighteenth year of age as on the date of
commission of such offence."
(emphasis supplied)
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The differential age qualification for boys and girls, in order to be
treated as juveniles, as was prevalent under the 1986 Act, was rightly
done away with in the 2000 Act.
15. The 2000 Act consciously made itself applicable to all pending
cases, both procedurally and substantively, which has in turn given
it an element of retrospectivity.