# VINOD KATARA v. STATE OF UTTAR PRADESH

- **Citation:** [2022] 9 S.C.R. 836
- **Court:** Supreme Court of India
- **Decided:** 2022-09-12
- **Bench:** Dinesh Maheshwari, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vinod-katara-v-state-of-uttar-pradesh-36494
- **Pages:** 49

## Headnote

Juvenile Justice (Care and Protection of Children) Act, 2000:
ss. 3, 7A, 16, 20 - Applicability of the 2000 Act - Plea of juvenility
at belated stage - Determination of juvenility - On facts, writ
applicant while undergoing sentence of life imprisonment for offence
punishable u/s. 302/34 subjected to medical examination by the
State in pursuant of the judgment by the High Court wherein the
High Court directed the Juvenile Justice Boards to hold an enquiry
for determination of the age of prisoners languishing in jails who
claimed to have been juveniles in conflict with the law - Medical
Board certified that on the date of the commission of the alleged
offence, the writ applicant could have been around 15 years of age
- Thereafter, writ applicant obtained a Family Register Certificate
which shows his age as 14 years - Instant writ petition filed by the
applicant claiming juvenility - Held: In view of s. 7A, the plea of
juvenility could be raised in any court, at any stage even after the
final disposal of the Special Leave Petition - It is the documentary
evidence placed on record that plays a major role in determining
the age of a juvenile in conflict of law - It is only in the cases where
the documents or certificates placed on record by the accused in
support of his claim of juvenility are found to be fabricated or
manipulated, that the Court, the Juvenile Justice Board or the
Committee need to go for medical test for age determination - On
facts, the Family Register cannot be accepted as equivalent to
matriculation certificate to prove the age of the accused - Convict
was subjected to medical examination, however, the report on record
does not inspire much confidence - Despite all the odds against the
writ applicant, the matter to be looked into, in the larger interest of
justice - Sessions court directed to examine the claim of the writ
applicant to juvenility in regard with law within the stipulated period
- If the Family Register is found to be authentic and genuine,
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ossification test report would not be required - Presiding Officer to
ascertain the authenticity and genuineness of the Family Register,
and the Sessions Court to conduct ossification test or any other
modern recognized method of age determination, and submit its
report - Juvenile Justice (Care and Protection of Children) Act,
2015 - s. 94 - Juvenile Justice (Care and Protection of Children)
Rules, 2007 - rr. 3(1), 3(2) and 12(3)(b) - Constitution of India -
Arts. 32 and 39 - Juvenile Justice (Care and Protection of Children)
Amendment Act, 2011.
Issuing directions, the Court
HELD: 1.1 It is well settled that in terms of Section 20 of
the Juvenile Justice (Care and Protection of Children) Act, 2000,
in all cases where the accused was above 16 years but below 18
years of age on the date of occurrence, the proceedings pending
in the Court would continue and be taken to the logical end
subject to an exception that upon finding the juvenile to be guilty,
the Court would not pass an order of sentence against him but
the juvenile would be referred to the Board for appropriate orders
under the 2000 Act. From a reading of Section 7A what becomes
very obvious is that whenever a claim of juvenility is raised, an
inquiry has to be made and such inquiry would take place by
receiving evidence which would be necessary but not an affidavit
so as to determine the age of such person. [Paras 25, 28][856-FG; 857-D-E]
1.2 Sub-clause (3) of the Rule 12 of the Juvenile Justice
(Care and Protection of Children) Rules, 2007 clearly mandates
that while conducting an inquiry about the juvenility of an accused,
the Juvenile Justice Board would seek evidence by obtaining
the matriculation or equivalent certificates and in the absence
whereof the date of birth certificate from the school first attended
and in absence whereof the birth certificate given by a corporation
or a Municipal authority or a Panchayat. It is made clear by subclause (b) t

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SUPREME COURT REPORTS
[2022] 9 S.C.R.
VINOD KATARA
v.
STATE OF UTTAR PRADESH
(Writ Petition (Criminal) No. 121 of 2022)
SEPTEMBER 12, 2022
[DINESH MAHESHWARI AND J. B. PARDIWALA, JJ.]
Juvenile Justice (Care and Protection of Children) Act, 2000:
ss. 3, 7A, 16, 20 - Applicability of the 2000 Act - Plea of juvenility
at belated stage - Determination of juvenility - On facts, writ
applicant while undergoing sentence of life imprisonment for offence
punishable u/s. 302/34 subjected to medical examination by the
State in pursuant of the judgment by the High Court wherein the
High Court directed the Juvenile Justice Boards to hold an enquiry
for determination of the age of prisoners languishing in jails who
claimed to have been juveniles in conflict with the law - Medical
Board certified that on the date of the commission of the alleged
offence, the writ applicant could have been around 15 years of age
- Thereafter, writ applicant obtained a Family Register Certificate
which shows his age as 14 years - Instant writ petition filed by the
applicant claiming juvenility - Held: In view of s. 7A, the plea of
juvenility could be raised in any court, at any stage even after the
final disposal of the Special Leave Petition - It is the documentary
evidence placed on record that plays a major role in determining
the age of a juvenile in conflict of law - It is only in the cases where
the documents or certificates placed on record by the accused in
support of his claim of juvenility are found to be fabricated or
manipulated, that the Court, the Juvenile Justice Board or the
Committee need to go for medical test for age determination - On
facts, the Family Register cannot be accepted as equivalent to
matriculation certificate to prove the age of the accused - Convict
was subjected to medical examination, however, the report on record
does not inspire much confidence - Despite all the odds against the
writ applicant, the matter to be looked into, in the larger interest of
justice - Sessions court directed to examine the claim of the writ
applicant to juvenility in regard with law within the stipulated period
- If the Family Register is found to be authentic and genuine,
[2022] 9 S.C.R. 836
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ossification test report would not be required - Presiding Officer to
ascertain the authenticity and genuineness of the Family Register,
and the Sessions Court to conduct ossification test or any other
modern recognized method of age determination, and submit its
report - Juvenile Justice (Care and Protection of Children) Act,
2015 - s. 94 - Juvenile Justice (Care and Protection of Children)
Rules, 2007 - rr. 3(1), 3(2) and 12(3)(b) - Constitution of India -
Arts. 32 and 39 - Juvenile Justice (Care and Protection of Children)
Amendment Act, 2011.
Issuing directions, the Court
HELD: 1.1 It is well settled that in terms of Section 20 of
the Juvenile Justice (Care and Protection of Children) Act, 2000,
in all cases where the accused was above 16 years but below 18
years of age on the date of occurrence, the proceedings pending
in the Court would continue and be taken to the logical end
subject to an exception that upon finding the juvenile to be guilty,
the Court would not pass an order of sentence against him but
the juvenile would be referred to the Board for appropriate orders
under the 2000 Act. From a reading of Section 7A what becomes
very obvious is that whenever a claim of juvenility is raised, an
inquiry has to be made and such inquiry would take place by
receiving evidence which would be necessary but not an affidavit
so as to determine the age of such person. [Paras 25, 28][856-FG; 857-D-E]
1.2 Sub-clause (3) of the Rule 12 of the Juvenile Justice
(Care and Protection of Children) Rules, 2007 clearly mandates
that while conducting an inquiry about the juvenility of an accused,
the Juvenile Justice Board would seek evidence by obtaining
the matriculation or equivalent certificates and in the absence
whereof the date of birth certificate from the school first attended
and in absence whereof the birth certificate given by a corporation
or a Municipal authority or a Panchayat. It is made clear by subclause (b) that only in the absence of the said three documents,
medical information would be sought from a duly constituted
Medical Board which will declare the age of the juvenile or child.
Thus, it is only in the absence of the aforesaid documents that
the Juvenile Justice Board could have asked for medical
information/ossification test. The 2000 Act stands repealed by
VINOD KATARA v. STATE OF UTTAR PRADESH
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the 2015 Act. The procedure for determining the age is now part
of Section 94 of the 2015 Act which was earlier provided under
the Rule 12 of the Rules. [Para 32, 33][861-C-F]
1.3 Section 7A(1) of the 2000 Act and the proviso thereto
provided that a claim of juvenility might be raised before any
court and it shall be recognized at any stage, even after the final
disposal of the case, and such claim shall be determined in terms
of the provisions contained in the 2000 Act and the Rules made
thereunder, even if the juvenile has ceased to be so, on or before
the date of commencement of the 2000 Act. Sub-section (2) of
Section 7A mandates that if the Court finds a person to be a
juvenile on the date of the commission of offence under subsection (1), it shall forward the juvenile to the Juvenile Justice
Board for passing an appropriate order, and the sentence, if any,
passed by a Court shall be deemed to have no effect. [Paras 39,
40][871-A-C]
1.4 The maximum period of detention in respect of a
juvenile is three years as provided in Section 15(1)(g). The said
Section provides that where the Juvenile Justice Board is, on
inquiry, satisfied that the juvenile has committed an offence, then
notwithstanding anything to the contrary contained in any other
law for the time being in force, the Juvenile Justice Board may, if
it thinks fit, make an order directing the juvenile to be sent to a
special home for a period of three years. [Para 42][872-B-C]
1.5 In view of Section 7A of the 2000 Act, applicable to the
writ applicant, the plea of juvenility could be raised in any court,
at any stage even after the final disposal of the Special Leave
Petition under Article 136 of the Constitution. In the case of the
writ applicant, his Special Leave Petition had also been dismissed
by this Court. However, this Court is still obliged to consider the
plea of juvenility taken by the writ applicant and grant him
appropriate relief. The fact that the 2000 Act has later been
replaced by the 2015 Act would make no difference. [Para 43][872C-D]
1.6 In deciding whether an accused is juvenile or not, a
hyper technical approach should not be adopted. While
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appreciating the evidence adduced on behalf of the accused in
support of the plea that he is a juvenile, if two views are possible
on the same evidence, the Court should lean in favour of holding
the accused to be juvenile in borderline cases. The inquiry
contemplated is not a roving inquiry. The Court can accept as
evidence something more than an affidavit i.e. documents,
certificates etc. as evidence in proof of age. It is the documentary
evidence placed on record that plays a major role in determining
the age of a juvenile in conflict of law. And, it is only in the cases
where the documents or certificates placed on record by the
accused in support of his claim of juvenility are found to be
fabricated or manipulated, that the Court, the Juvenile Justice
Board or the Committee need to go for medical test for age
determination. [Para 45][876-D-G]
Ashwani Kumar Saxena v. State of Mahya Pradesh, AIR
2013 SC 553 : [2012] 10 SCR 540 - relied on.
1.7 In the instant case, the accused has not produced any
matriculation certificate or equivalent certificate to prove his age.
What is produced by him is only the Family Register issued under
the U.P. Panchayat Raj Act, 1947. The document cannot be
accepted as equivalent to matriculation certificate to prove the
age of the accused. However, the evidentiary value of the Family
Register will have to be looked into in the course of the inquiry
that this Court may order. [Para 48][877-D-E]
1.8 Ideally, there should not be any dispute as to the age of
a person if the birth is registered in accordance with law and date
of birth is entered in the school records on the basis of genuine
record of birth. However, in India, the factors like poverty,
illiteracy, ignorance, indifference and inadequacy of the system
often lead to there being no documentary proof of a person's
age. Therefore, in those cases where the plea of juvenility is raised
at a belated stage, often certain medical tests are resorted to
forage determination in absence of the documents enumerated
in Section 94 of the Act 2015. The rule allowing plea of juvenility
to be raised at a considerably belated stage has its rationale in
the contemporary child rights jurisprudence which requires the
stakeholders to act in the best interest of the child. [Para 49][877F-G]
VINOD KATARA v. STATE OF UTTAR PRADESH
VINOD KATARA v. STATE OF UTTAR PRADESH
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1.9 The bone ossification test is a test that determines age
based on the "degree of fusion of bone" by taking the x-ray of a
few bones. In simple words, the ossification test or osteogenesis
is the process of the bone formation based on the fusion of joints
between the birth and age of twenty-five years in an individual.
Bone age is an indicator of the skeletal and biological maturity of
an individual which assists in the determination of age. The most
common method used for the calculation of the bone age is
radiography of the hand and wrist until the age of 18 years beyond
which the medial age of clavicle is used for bone age calculation
till the age of 22 years as the hand and wrist bone radiographs
cannot be computed beyond 18 years of age as the elongation of
the bone is complete after adolescence. However, it must be noted
that the ossification test varies slightly based on individual
characteristics, therefore the ossification test though is relevant
however it cannot be called solely conclusive. [Para 55][879-BD]
1.10 The 2015 Act under Section 94(2)(iii) read with Rule
12(3) of the 2007 Rules provides the legislative sanction for the
conduct of ossification test or other medical age determination
test available in the absence of other documentary proof of age
i.e. matriculation certificate or birth certificate, which has to be
given within 15 days from the date of such order. The test is to
be conducted by the Child Welfare Committee (CWC). The
provision mentioned is the basis for determining the age of a
child under the 2000 Act which even includes a child who is a
victim of crime in addition to a child in conflict with the law. [Para
56][879-D-F]
1.11 The bone ossification test is not an exact science that
can provide with the exact age of the person. The individual
characteristics such as the growth rate of bones and skeletal
structures can affect the accuracy of this method. [Para 58][880A-B]
1.12 In the case on hand the convict was subjected to
medical examination after being referred to the Medical Board.
However, the report on record does not inspire much confidence.
Over and above the same, the decision in the case of Ram Vijay
Singh's case makes it very clear that in the absence of a reliable
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and trustworthy medical evidence to find out the age of the
appellant, the ossification test conducted in the year 2021 when
the appellant was above 50 years of age cannot be conclusive to
declare him as a juvenile on the date of the incident. This Court
observed that when a person is around 18 years of age, the
ossification test can be said to be relevant for determining the
approximate age of a person in conflict with law. However, when
the person is around 40-55 years of age, the structure of bones
cannot be helpful in determining the age. In such circumstances,
it will be a matter of debate as to what extent the new ossification
test report that may come on record can be relied upon and to
what extent the same would be helpful to the appellant herein.
Despite all the odds against the writ applicant, this Court would
still like to look into the matter in the larger interest of justice. It
will be in fitness of things if the writ applicant convict is once
again subjected to the ossification test at the Civil Hospital or
any other latest medical age determination test and such test
shall be carried out by a team of three doctors, one of whom
should be the head of the Department of Radiology. [Paras 63,
64][882-D-H; 883-A]
1.13 In view thereof, the Sessions Court is directed to
examine the claim of the writ applicant to juvenility in regard
with law within one month from the date of communication of this
order; the concerned Sessions Court shall also examine the
authenticity and genuineness of the Family Register sought to
be relied upon by writ applicant convict considering that the
document does not appear to be contemporaneous. This
document assumes importance, more particularly in the light of
the fact that the ossification test report may not be absolutely
helpful in determining the exact age of the writ applicant on the
date of incident. If the Family Register on record is ultimately
found to be authentic and genuine, then this Court may not have
to fall upon the ossification test report. In such circumstances,
the Presiding Officer concerned shall pay adequate attention
towards this document and try to ascertain the authenticity and
genuineness of the same. If need be, the statements of the
persons concerned i.e. from the concerned government
department may also be recorded; the Sessions Court shall
ensure that the writ applicant convict is medically examined by
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taking an ossification test or any other modern recognized method
of age determination; and the Sessions Court concerned shall
submit its report as regards the aforesaid to this Court within
the stipulated period. [Para 65][883-B-F]
Abuzar Hossain ALIAS Gulam Hossain v. State of West
Bengal reported in (2012) 10 SCC 489 : [2012] 9 SCR
244; Ashok v. State of Madhya Pradesh; Pratap Singh
v. State of Jharkhand, (2005) 3 SCC 551 : [2005] 1
SCR 1019; Shah Nawaz v. State of Uttar Pradesh,
(2011) 13 SCC 751 : [2011] 9 SCR 859; Arnit Das v.
State of Bihar, (2000) 5 SCC 488 : [2000] 1 Suppl.
SCR 69; Bijender Singh v. State of Haryana (2005) 3
SCC 685; Dharambir v. State (NCT of Delhi), (2010) 5
SCC 344 : [2010] 5 SCR 137; Kalu v. State of Haryana,
(2012) 8 SCC 34 : 2012 (7) JT 417; Manoj v. State of
Haryana, reported in (2022) 6 SCC 187 : 2022 (6) JT
547; Vishnu v. State of Maharashtra, (2006) 1 SCC 283
: [2005] 5 Suppl. SCR 474; Madan Gopal Kakkad v.
Naval Dubey, (1992) 3 SCC 204 : [1992] 2 SCR 921;
Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681
: (2010) 2 SCC (Cri) 1194; Jyoti Prakash Rai v. State
of Bihar, (2008) 15 SCC 223 : (2009) 3 SCC (Cri) 796;
Mukarrab v. State of Uttar Pradesh, reported in (2017)
2 SCC 210 : [2016] 8 SCR 557; Rajendra Chandra v.
State of Chhattisgarh, (2002) 2 SCC 287 : 2002 (1) JT
265; Rishipal Singh Solanki v. State of Uttar Pradesh,
(2021) SCC OnLine SC 1079; Court On Its Own
Motion v. Dept. of Women and Child Development,
reported in 2012 SCC OnLine Del 2774; Ram Vijay
Singh v. State of U.P., (2021) SCC Online SC 142referred to.
Case Law Reference
[2012] 9 SCR 244
referred to
Para 11
[2005] 1 SCR 1019
referred to
Para 21
[2005] 2 SCR 1131
referred to
Para 22
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[2010] 5 SCR 137
referred to
Para 23
(2012) 8 SCC 34
referred to
Para 24
[2012] 10 SCR 540
relied on
Para 45
[2011] 9 SCR 859
relied on
Para 47
[2005] 5 Suppl. SCR 474
referred to
Para 57
[1992] 2 SCR 921
referred to
Para 57
[2016] 8 SCR 557
referred to
Para 59
[2000] 1 Suppl. SCR 69
relied on
Para 60
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 121 of 2022.
Under Article 32 of The Constitution of India
Rishi Malhotra, Jaydip Patil, Advs. for the Appellant.
Andhendumauli Kr. Prasad, AAG, Vishnu Shankar Jain,
Ms. Shreya Srivastava, Ashish Madaan, Ms. Ananya S., Advs. for the
Respondent.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. Personal liberty of a person is one of the oldest concepts to be
purported by national courts. As long ago as in 1215, the English Magna
Carta provided that:-
"No free man shall be taken or imprisoned.... but..... by law
of the land."
2. Today, the concept of personal liberty has received a far more
expansive interpretation. The notion that is accepted today is that liberty
encompasses these rights and privileges which have long been recognized
as being essential to the orderly pursuit of happiness by a free man and
not merely freedom from bodily restraint. There can be no cavil in saying
that lodging juveniles in adult prisons amounts to deprivation of their
personal liberty on multiple aspects.
3. This Writ Application under Article 32 of the Constitution is at
the instance of a convict accused undergoing life imprisonment for the
offence of murder seeking appropriate directions to the respondent State
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of Uttar Pradesh to verify the exact age of the convict on the date of
the commission of the offence as it is the case of the convict that on the
date of the commission of the offence i.e. 10.09.1982 he was a juvenile
aged around 15 years.
4. The facts giving rise to this litigation may be summarized as
under:
(a) The writ applicant along with other co-accused persons was
put to trial for the offence punishable under Section 302 r/w 34 of
the IPC;
(b) The 5th Additional Sessions Judge, Agra in the sessions trial
No. 535 of 1983 arising from the case crime no. 126 of 1982
registered with the Fatehpur Sikri District, Agra held the writ
applicant herein and the co-accused persons guilty of the offence
of murder and sentenced them to life imprisonment;
(c) The writ applicant herein and the other convicts went in appeal
before the Allahabad High Court by filing the Cr. Appeal No. 133
of 1986 questioning the legality and validity of the judgment &
order of conviction passed by the trial court dated 06.01.1986;
(d) The appeal was heard by the High Court and vide judgment
and order dated 04.03.2016 came to be dismissed thereby
affirming the judgment and order of conviction passed by the
trial court;
(e) The writ applicant herein dissatisfied with the order passed by
the High Court dismissing his appeal, referred to above, came
before this Court by filing application for Special Leave to Appeal
(Crl.) No. 6048 of 2016. This Court vide order dated 16.08.2016
declined to grant leave as prayed for and dismissed the Special
Leave Petition.
5. It may not be out of the place to state at this stage that till this
Court dismissed the Special Leave Petition vide the order dated 16.08.2016,
the writ applicant herein had not raised the question of him being a juvenile
on the date of the commission of the alleged offence on 10.09.1982.
6. It appears that while the writ applicant was undergoing sentence
of life imprisonment, he was subjected to medical examination by the
Medical Board constituted by the respondent State in pursuance of the
judgment rendered by a Division Bench of the Allahabad High Court in
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the Criminal Writ Public Interest Litigation No. 855 of 2012, wherein the
Division Bench of the Allahabad High Court observed as under:
"Admittedly, as per the State's earlier affidavits, it was claimed
that there were 72 prisoners, who may have been below 18
years in age and who are detained in the various district or
Central jails. Their break up was as follows:
There were 23 such prisoners in Bareilly, 1 in Lucknow, 4
in Allahabad, 2 in Etawah, 18 in Agra and 23 in
Fatehgarh. One such prisoner Raju, who belonged to
Faizabad, whose age was determined to be below 18 years
by the Principal Magistrate, Juvenile Justice Board was
sent to Special Home after having been detained for a long
time in Faizabad jail.
Prima facie there appears to be some material for suggesting
that such prisoners, may have been below 18 years on the
date of commission of the offences. After the modification of
the Juvenile Justice (Care and Protection of Children) Act,
2000, (hereafter the Act) by Act No. 33 of 2006, under section
2 (l) a juvenile in conflict with law means a juvenile who is
alleged to have committed an offence and has not completed
eighteen years of age as on the date of commission of such
offence.
Under the proviso to section 7A (1) of the Act, it is mentioned
that a claim of juvenility may be raised before any court and
it shall be recognised at any stage, even after the final disposal
of the case, and such claim shall be determined in terms of
the provisions contained in this Act and the Juvenile Justice
(Care and Protection of Children) Rules, 2007 (hereinafter
the Rules).
We, therefore, direct the District Judges, who are Chairpersons
of their respective Legal Services Authorities to directly
oversee that efficient lawyers are appointed for the purpose
of providing legal aid to the prisoners, (who are unable to
engage private lawyers) who have been mentioned in the list
furnished by the State Government and described to be below
18 years in age on the date of commission of offence. The
said legal aid lawyers should get the ages of the prisoners
VINOD KATARA v. STATE OF UTTAR PRADESH
[J. B. PARDIWALA, J.]
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ascertained by obtaining documents and carrying out the
other measures provided under Rule 12 of the Juvenile Justice
Act and Rules and also on the lines suggested by the Delhi
High Court in WP (C) No. 8889 of 2011 (Court on its own
motion vs. Department of Women and Child Development and
others) in its order dated 11.5.2012. Obtaining information
about the probable date of birth of other siblings can also
be taken into account for ascertaining the true age of these
prisoners. The legal aid lawyers may also find out whether
there are other prisoners in jail, who may be below 18 years
of age on the date of commission of the offence and who
appear to be wrongly lodged in the regular prisons for adults
and the bases for their conclusions.
Thereafter the matter may be placed before the Principal
Judge, Juvenile Justice Board for determining of the ages as
per the criteria set out above.
The prosecution and the complainant will also of course be
given an opportunity to examine their own witnesses and to
cross-examine the witnesses, who have been got examined on
behalf of the accused and for that purpose notices of the
proceedings before the JJ Board shall be served on the
complainant/ prosecution. As it is possible that in some cases
the prisoners mentioned in the State's list may indeed be below
18 years in age on the date of offence, but as the basis for
arrival at the conclusion in the State's list were usually some
preliminary medical examinations and no detailed steps for
ascertaining ages had been taken after hearing both parties,
and it cannot be ruled out that in certain cases extraneous
measures may have been used for reducing the ages, we think
that such an exercise as detailed above wherein the ages are
ascertained after hearing both parties was needed. The said
exercise is to be competed within a period of two months and
the reports submitted to this Court on its next listing.
The District Judges/District Legal Services Authorities shall
take strict measures in future for ensuring that prisoners below
18 years of age on the date of offence are not lodged in
adults prisons in violation of the Juvenile Justice Act and Rules.
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So far as district Allahabad is concerned, we direct the District
Judge, Allahabad to permit Sister Sheeba Jose, Advocate and
Shri Rohan Gupta, Advocate to visit and interview the
concerned prisoners for the purpose of ascertaining their ages
and for submitting the report to the Court on the next date of
listing.
It was further submitted by the learned counsel for the
petitioner that so far as the prisoner Raju is concerned, whose
age was determined to be below 18 years, he was earlier
lodged in Faizabad jail and was subsequently sent to the
Special Home. As he was convicted as far back as in the
year 2001 in a case under section 302 IPC. The respondents
should inform this Court about the total period spent in jail
by this prisoner and in case it exceeds 3 years (which was
the maximum permissible sentence in view of section 15 of the
Act) the basis for his being presently detained in the Special
Home."
Thus, vide the order dated 24.05.2012 referred to above passed
in a Public Interest Litigation being Criminal (PIL) Misc. W.P. No. 855
of 2012, the Allahabad High Court directed the Juvenile Justice Boards
to hold an enquiry for determination of the age of prisoners languishing
in jails who claimed to have been juveniles in conflict with the law.
7. The Medical Board subjected the writ applicant herein to the
X-rays of the skull and sternum. Upon medical examination of the writ
applicant herein, the Medical Board gave its report dated 10.12.2021
certifying that on 10.09.1982 i.e. the date of the commission of the alleged
offence, the writ applicant could have been around 15 years of age as on
the date of the medical examination, the convict was around 56 years of
age.
8. It appears that sometime later, the writ applicant was in a position
to obtain a document in the form of Family Register dated 02.03.2021
issued under the U.P. Panchayat Raj (Maintenance of Family Registers)
Rules, 1970. In the Family Register certificate, the year of birth of the
writ applicant herein is shown as 1968. If 1968 is the correct birth year
of the writ applicant herein, then in 1982 he was about 14 years of age.
9. In such circumstances referred to above, the writ applicant is
here before this Court. He claims that as he was a juvenile on the date
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of the commission of the alleged offence sometime in the year 1982, he
could not have been put to trial along with other co- accused and should
have been dealt with under the provisions of the Juvenile Justice Act as
prevailing at the relevant point of time. It is the prayer of the writ applicant
that the respondent State be directed to get the claim of the writ applicant
in regard to the juvenility verified through the concerned Sessions Court
or the Juvenile Justice Board.
Submissions on behalf of the writ applicant convict:
10. Mr. Rishi Malhotra, the learned counsel appearing for the writ
applicant vehemently submitted that although till the dismissal of the
Special Leave Petition (Criminal) No. 6048 od 2016 by this Court vide
order dated 16.08.2016, the convict had not raised the plea of juvenility,
yet the law permits him to raise such a plea even at this point of time
having regard to the provisions of the Juvenile Justice (Care and Protection
of Children) Amendment Act, 2011. It is submitted that there is clinching
evidence on record as on date in the form of certificate issued by the
Medical Board as well as the Family Register to indicate that in the year
1982 the writ applicant could be around 15 years of age. The learned
counsel would vehemently submit that there is no good ground to discard
the certificate issued by the Medical Board as well as the extract of the
Family Register.
11. To fortify the aforesaid submissions, the learned counsel seeks
to rely upon a three-Judge Bench decision of this Court in the case of
Abuzar Hossain ALIAS Gulam Hossain v. State of West Bengal
reported in (2012) 10 SCC 489.
12. In such circumstances referred to above, the learned counsel
prays that there being merit in his writ petition, the same may be allowed
and appropriate directions may be issued to do complete justice in the
matter.
Submissions on behalf of the State
13. Mr. Ardhendhumauli Kr. Prasad, the learned Additional
Advocate General appearing for the State, on the other hand, has
vehemently opposed the present writ application. The learned counsel
would submit that the Family Register is not admissible in evidence and
the entries made therein are not decisive to determine the age. It is
argued that the writ applicant has not placed on record any document of
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any educational institution. It is also argued that no ossification test was
undertaken or no modern recognized method was adopted for the
purpose of determination of age.
14. The learned counsel appearing for the State invited the attention
of this Court towards the order passed by a Coordinate Bench of this
Court in the case of Ashok v. State of Madhya Pradesh, Special Leave
to Appeal (Criminal) No. 643 of 2020 dated 29.11.2021. The order passed
by the Coordinate Bench referred to above reads thus:-
"By a judgment and order dated 29.07.1999, the Additional
Sessions Judge, Gohad, District Bhind, Madhya Pradesh,
convicted the petitioner inter alia for offence under Section
302 of the Indian Penal Code and sentenced him inter alia to
life imprisonment in Sessions Trial No. 260 of 1997. In the
cause title of the said judgment and order, the petitioner has
been described as Ashok, S/o Balram Jatab age 16 yrs 9
months and 19 days, R/o Village Anjani Pura, District Bhind.
The petitioner filed an appeal being Criminal Appeal No. 455
of 1999 challenging his conviction and sentence. The said
criminal appeal has been dismissed by the High Court by an
order dated 14.11.2017, which is impugned in the Special
Leave Petition (Crl.) No. 643 of 2020, filed by the petitioner.
The incident which led to the conviction of the petitioner, took
place on 26.07.1997.
The petitioner claims that the petitioner was born on
05.01.1981. The petitioner was, therefore, approximately
16 years and 7 months old on the date of the incident. In
this Court, the petitioner has for the first time contended that
he was a juvenile on the date of the incident. His conviction
and sentence are, therefore, liable to be set- aside. The claim
of juvenility was not raised in the High Court. The learned
Additional Advocate General, appearing on behalf of the State
argued that the claim of juvenility has been raised for the
first time in this special leave petition. The Juvenile Justice
Act, 1986, which was in force on the date of commission of
the offence as also the date of the judgment and order of
conviction and sentence by the Sessions Court was repealed
by the Juvenile Justice (Care and Protection of Children) Act,
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2000. The Act of 2000 received the assent of the President of
India on 30.12.2000 and came into force on 01.04.2001. The
Act of 2000 defined juvenile in conflict with the law to mean a
juvenile, who was alleged to have committed an offence and
had not completed 18th year of age as on the date of
commission of such an offence.
Under the 1986 Act, the age of juvenility was up to the 16th
year. Section 7A of the 2000 Act as inserted by Act 33 of
2006 with effect from 22.08.2006 provided as follows:-
"7A. Procedure to be followed when claim of juvenility is
raised before any Court.-(1) Whenever a claim of juvenility
is raised before any court or a court is of the opinion that
an accused person was a juvenile on the date of
commission of the offence, the court shall make an inquiry,
take such evidence as may be necessary (but not an
affidavit) so as to determine the age of such person, and
shall record a finding whether the person is a juvenile or
a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised
before any Court and it shall be recognised at any stage,
even after final disposal of the case, and such claim shall
be determined in terms of the provisions contained in this
Act and the rules made thereunder, even if the juvenile has
ceased to be so on or before the date of commencement of
this Act. (2) If the court finds a person to be a juvenile on
the date of commission of the offence under sub-section(1),
it shall forward the juvenile to the Board for passing
appropriate orders and the sentence, if any, passed by a
court shall be deemed to have no effect."
The claim of juvenility can thus be raised before any Court,
at any stage, even after final disposal of the case and if the
Court finds a person to be a juvenile on the date of commission
of the offence, it is to 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. Even though
the offence in this case may have been committed before the
enactment of the Act of 2000, the petitioner is entitled to the
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benefit of juvenility under Section 7A of the Act of 2000, if on
inquiry it is found that he was less than 18 years of age on
the date of the alleged offence.
It is true as pointed out by the learned Additional Advocate
General appearing on behalf of the State that the certificate
of Akikrit Shash, High School School Endouri, District Bhind,
Madhya Pradesh relied upon by the petitioner is stated to
have been issued on 17.07.2021. The said certificate does
not specifically mention that the date of birth 01.01.1982 had
been entered at the time of first admission of the petitioner at
the primary school level.
Furthermore, there is a birth certificate issued by the Gram
Panchayat, Endouri, District Bhind, Madhya Pradesh which
indicates the date of birth of the petitioner as 05.01.1982 and
not 01.01.1982 as recorded in the school certificate referred
to above.
The entry in the records of the Gram Panchayat, Endouri,
District Bhind, Madhya Pradesh, also do not appear to be
contemporaneous and the certificate has been issued in the
year 2017.
However, as pointed out by Mr. M.P. Parthiban, learned
counsel appearing on behalf of the petitioner that the Sessions
Court has recorded the age of the petitioner as 16 years, 9
months and 19 days. The petitioner has been in actual custody
for over three years.
The 2000 Act has been repealed and replaced by the Juvenile
Justice (Care and Protection of Children) Act, 2015. Section
21 of the 2015 Act provides as follows:
"21. Order that may not be passed against a child in conflict
with law. - No child in conflict with law shall be sentenced
to death or for life imprisonment without the possibility of
release, for any such offence, either under the provisions
of this Act or under the provisions of the Indian Penal
Code or any other law for the time being in force."
Considering that the Trial Court has recorded the age of the
petitioner as 16 years and odd, and has been in actual custody
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in excess of three years, which is the maximum for a juvenile,
we deem it appropriate to grant the petitioner interim bail on
such terms and conditions as may be imposed by the Sessions
Court. We further direct the Sessions Court to examine the
claim of the petitioner to juvenility in accordance with law,
and submit a report to this Court within one month from the
date of communication of this order.
The concerned Sessions Court shall be entitled to examine
the authenticity and genuineness of the documents sought to
be relied upon by the petitioner, considering that the
documents do not appear to be contemporaneous.
In the event the documents are found to be questionable/
unreliable, it will be open to the Sessions Court to have the
petitioner medically examined by taking an ossification test
or any other modern recognized method of age determination."
15. The aforesaid order passed by the Coordinate Bench has been
relied upon by the learned counsel appearing for the State to fortify his
submission that if at all the issue in regard to the juvenility of the writ
applicant requires consideration, the same should be by the Sessions
Court i.e. the Court which had originally tried the writ applicant for the
alleged offence.
16. In such circumstances referred to above, the learned counsel
appearing for the State prays that let the Sessions Court look into the
certificate issued by the Medical Board including the Family Register
more particularly its authenticity and genuineness.
Analysis:
17. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question that
falls for our consideration is that whether we should ask the Sessions
Court to examine the authenticity and genuineness of the documents
sought to be relied upon by the writ applicant in support of his plea of
being a juvenile on the date of the commission of the alleged offence in
the year 1982 and also subject the convict to further ossification test?
18. The first and the foremost issue that arises for our consideration
in this writ petition is in regard to the applicability of the provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2000 (for short,
"the 2000 Act").
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19. In the aforesaid context, we must first look into the relevant
dates as follows:-
(a) The date of the incident is 10.09.1982. Thus, on the date of
incident even the Juvenile Justice Act, 1986 was not in force.
What was in force was the Children Act, 1960. The Children
Act, 1960 was a beneficial legislation enacted to take care of
the delinquent and neglected children. Under the said Act, a
child meant a person who had not attained the age of 16 years
in the case of a boy or 18 years in the case of a girl.
(b) The petitioner herein came to be convicted by the trial court
vide judgment and order dated 06.01.1986. Even on the date
of conviction, the Juvenile Justice Act, 1986 was not in force.
The Juvenile Justice Act, 1986 came in force with effect from
01.12.1986. Thus, even on the date of conviction, the Children
Act, 1960 governed the field.
(c) The appeal filed by the petitioner herein in the High Court of
Allahabad against the judgment and order of conviction passed
by the trial court came to be decided and was ordered to be
dismissed vide judgment and order dated 04.03.2016. It is
relevant to note that on the date when the appeal came to be
dismissed by the High Court, the 2000 Act was in force.
(d) Special Leave to Appeal (Crl.) No. 6048 of 2016 filed by the
petitioner herein in this Court came to be dismissed vide order
dated 16.08.2016.
20. On and with effect from 15.01.2016, the Juvenile Justice (Care
and Protection of Children) Act, 2015 (for short, "the 2015 Act") came
into force which repealed the 2000 Act. While the appeal of the petitioner
herein against his conviction and sentence was pending in the High
Court, the 2000 Act came into force which repealed the Juvenile Justice
Act, 1986. The 2000 Act inter alia raised the age of juvenility from 16
to 18 years and in terms of Section 20 of the 2000 Act, the determination
of juvenility was required to be done in all pending matters in accordance
with Section 2(1) of the 2000 Act.
21. The effect of Section 20 of the 2000 Act was considered
in Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551, and it was
stated as under:-
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"31. Section 20 of the Act as quoted above deals with the special
provision in respect of pending cases and begins with a non obstante
clause.