2025 INSC 43
SUPREME COURT OF INDIA
(HON’BLE M. M.
SUNDRESH, J. AND HON’BLE ARAVIND KUMAR, JJ.)
OM PRAKASH @ ISRAEL @
RAJU @ RAJU DAS
Petitioner
VERSUS
UNION OF INDIA
Respondent
Criminal
Appeal No. 4229 OF 2024 (Arising out of SLP (Crl.) No.(s) 2214 of 2022)-Decided
on 08-01-2025
Criminal, Juvenile
(A) Juvenile
Justice (Care and Protection of Children) Act, 2015, Section 94(2) - Juvenile
Justice (Care and Protection of Children) Rules, 2007, Rule 12 – Juvenile – Age
determination - Plea
of juvenility - 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 -
Procedural mandate contemplated both the 2000 and the 2015 Acts was also not followed by the trial Court and
the High Court - Before this Court, the Appellant had relied upon the school
certificate in the Criminal Appeal - It was once again relied upon in the
Review Petition - Thereafter, additional documents were relied upon by the
Appellant in the Writ Petition and also in the Curative Petition which was
subsequently filed - In the Curative Petition, a counter affidavit was filed by
the State certifying the documents furnished by the Appellant to be true -
Nonetheless, the said petition was dismissed without according any reason -
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 - In the subsequent
Writ Petition filed before the High Court, two different prayers had been made,
namely, 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 - As the Executive cannot be construed to
have undertaken an adjudication on the determination of the age of the accused,
and with the first prayer being a distinct one invoking Section
9(2) of the 2015 Act, the High Court has committed an error in its reasoning
– Held that this is a case where the Appellant has been suffering due to the
error committed by the Courts - He lost an opportunity to reintegrate into the
society. The time which he has lost, for no fault of his, can never be restored
- Sentence imposed in excess of the upper limit prescribed under the relevant
Act liable to be set aside, while maintaining the conviction rendered - It
cannot be construed that the Presidential Order is interfered with, as the
issue is the failure of the Court in not applying the mandatory provisions
of the 2015 Act with specific reference to the plea of juvenility - Therefore,
it is not a review of the Presidential Order, but a case of giving the benefit
of the provisions of the 2015 Act to a deserving person - Appellant has undergone imprisonment for
almost 25 years, during which time, the society has undergone significant
transformation which the Appellant might be unaware of and find difficult to
adjust with - Uttarakhand State Legal Services Authority directed to play a
proactive role in identifying any welfare scheme of the State/Central
Government, facilitating the Appellant’s rehabilitation and smooth
reintegration into the society upon his release, with particular emphasis on
his right to livelihood, shelter and sustenance guaranteed under Article
21 of the Constitution.
(Para 45 to 54)
(B) Juvenile
Justice (Care and Protection of Children) Act, 2015, Section 9(2) - Juvenile
- Plea of juvenility -
Words “even after the final disposal of the case” - Merely because a casual adjudication
has taken place, it does not mean that a plea of juvenility cannot be raised
subsequently - This is for the simple reason that the plea of juvenility has
not attained finality - 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 - Likewise, when such a plea is not treated as one
under Section 9(2) of the 2015 Act in compliance with the
procedural mandate specified thereunder, an order rejecting such a plea
would not be termed as a final one - To put it differently, even assuming a
plea of juvenility was raised but not considered appropriately at the time of
disposal of a Special Leave Petition/Statutory Criminal Appeal, a Review
Petition, or a Curative Petition thereafter, it would not bar a competent Court
from deciding the said issue by following due procedure - If an adjudication is
based on due determination, then there may not be any room for another round of
litigation - But, in a case where the plea was not treated as an application
under Section 9(2) of the 2015 Act and, the procedure mandated
thereunder was not followed, the principle as aforesaid would certainly apply
as the right of raising the plea of juvenility has not ceased and, therefore,
subsists.
(Para 22)
JUDGMENT
M. M. Sundresh, J.:- 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. Reason:
perpetrated, on account of the consistent failure on part of the judicial
machinery to recognise and act upon the constitutional mandate vis- a-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)
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-
“Our profession is
totally committed to Justice—individual, 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
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, 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)
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 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;
(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)] , 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 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)
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 requires-
xxx 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 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 requires-
xxx 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)
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. One clear omission in the 2000 Act is the absence of a
specific duty upon the Investigating Agency qua a juvenile during
investigation, which was highlighted under the Beijing Rules. Rule 6 of the
Beijing Rules “6 – Scope of discretion 6.1 In view of the varying special needs
of juveniles as well as the variety of measures available, appropriate scope
for discretion shall be allowed at all stages of proceedings and at the
different levels of juvenile justice administration, including investigation,
prosecution, adjudication and the follow-up of dispositions.”
16.
Section 7A, along with the Explanation to Section 20 of the 2000 Act,
were introduced into the statute by an amendment vide Act No. 33 of 2006, to
overcome the ratio of the judgment rendered by the Constitution Bench of this
Court in Pratap Singh vs. State of Jharkhand, (2005) 3 SCC 551,
wherein it was declared that the benefit of juvenility cannot be extended to a
person who had completed 18 years of age as on 01.04.2001 – i.e. the date of
enforcement of the 2000 Act.
Section 7A “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 order, and the sentence, if any, passed by a court shall be deemed
to have no effect.”
(emphasis
supplied)
Section 20 “20.
Special provision in respect of pending cases-
Notwithstanding
anything contained in this Act, all proceedings in respect of a juvenile
pending in any Court in any area on the date on which this Act comes into force
in that area, shall be continued in that Court as if this Act had not been
passed and if the Court finds that the juvenile has committed an offence, it
shall record such finding and instead of passing any sentence in respect of the
juvenile, forward the juvenile to the Board which shall pass orders in respect
of that juvenile in accordance with the provisions of this Act as if it had
been satisfied on inquiry under this Act that a juvenile has committed the
offence:
Provided that the
Board may, for any adequate and special reason to be mentioned in the order,
review the case and pass appropriate order in the interest of such juvenile.
Explanation.
In all pending cases including trial, revision, appeal or any other criminal
proceedings in respect of a juvenile in conflict with law, in any court, the
determination of juvenility of such a juvenile shall be in terms of clause (l)
of section 2, even if the juvenile ceases to be so on or before the date
of commencement of this Act and the provisions of this Act shall apply as if
the said provisions had been in force, for all purposes and at all material
times when the alleged offence was committed.”
(emphasis
supplied)
17.
While Section 7A of the 2000 Act deals with the procedure to be followed when a
claim of juvenility is raised before any Court, Section 20 of the
2000 Act is a special provision in respect of pending cases. Under both these
provisions, it has been made abundantly clear that the 2000 Act and the
relevant rules would also be applicable to a juvenile who ceased to be so on or
before the commencement of the 2000 Act. Thus, a retrospective application has
been facilitated under the 2000 Act.
JUVENILE
JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 (Act No. 2 of 2016)
18.
The Juvenile Justice (Care and Protection of Children) Act, 2015 (Act No.
2 of 2016) (hereinafter referred to as the “2015 Act”) is an improved version
of the earlier legislations. The Hague Convention on Protection of Children and
Cooperation in respect of Inter- country Adoption, 1993, has also been factored
into. The 2015 Act undertook the exercise of classifying offences into different
categories.
It
defines the word ‘Court’ under Section 2(23), as one having original
jurisdiction. This definition is only illustrative in nature, in tune with the
importance of the enactment.
Section 2
“2. Definitions-
In this Act, unless the context otherwise requires:
xxx xxx xxx
(23) “court” means a
civil court, which has jurisdiction in matters of adoption and guardianship and
may include the District Court, Family Court and City Civil Courts;”
19.
Thus, any Court which is competent to decide the issue of juvenility would come
within the purview of the definition clause, which includes both the appellate
and the revisional forums as well as the Constitutional Courts. In other words,
every Court of competence shall assume the role of a Juvenile Court. We say so
as, giving effect to the provisions of the 2015 Act is imperative in view of
the constitutional mandate.
Section 5
“5. Placement of
person, who cease to be a child during process of inquiry-Where an inquiry has
been initiated in respect of any child under this Act, and during the course of
such inquiry, the child completes the age of eighteen years, then,
notwithstanding anything contained in this Act or in any other law for the time
being in force, the inquiry may be continued by the Board and orders may be
passed in respect of such person as if such person had continued to be a
child.”
Section 6
“6. Placement of
persons, who committed an offence, when person was below the age of eighteen years-
(1) Any person, who
has completed eighteen years of age, and is apprehended for committing an
offence when he was below the age of eighteen years, then, such person shall,
subject to the provisions of this section, be treated as a child during the process
of inquiry.
(2) The person
referred to in sub-section (1), if not released on bail by the Board shall be
placed in a place of safety during the process of inquiry.
(3) The person
referred to in sub-section (1) shall be treated as per the procedure specified
under the provisions of this Act.” Sections 5 and 6 of the
2015 Act reiterate the principle that even a juvenile who has attained majority
during the course of inquiry should be treated as a juvenile.
20.
Section 9 of the 2015 Act is the very substance of the entire enactment
and sub section (2) is pari materia to Section 7A of the 2000 Act.
Section 9
“9. Procedure to be
followed by a Magistrate who has not been empowered under this Act-
(1). When a
Magistrate, not empowered to exercise the powers of the Board under this Act is
of the opinion that the person alleged to have committed the offence and
brought before him is a child, he shall, without any delay, record such opinion
and forward the child immediately along with the record of such proceedings to
the Board having jurisdiction.
(2) In case a person
alleged to have committed an offence claims before a court other than a Board,
that the person is a child or was a child on the date of commission of the
offence, or if the court itself is of the opinion that the person was a child
on the date of commission of the offence, the said court shall make an inquiry,
take such evidence as may be necessary (but not an affidavit) to determine the age
of such person, and shall record a finding on the matter, stating the age of
the person as nearly as may be:
Provided that such a
claim may be raised before any court and it shall be recognised at any stage,
even after final disposal of the case, and such a claim shall be determined in
accordance with the provisions contained in this Act and the rules made there under
even if the person has ceased to be a child on or before the date of
commencement of this Act.
(3) If the court finds that a person has
committed an offence and was a child on the date of commission of such offence,
it shall forward the child to the Board for passing appropriate orders and the
sentence, if any, passed by the court shall be deemed to have no effect.
(4) In case a person under
this section is required to be kept in protective custody, while the person’s
claim of being a child is being inquired into, such person may be placed, in
the intervening period in a place of safety.”
(emphasis supplied)
Under
sub-section (2), it is the fundamental duty of the Court to make an inquiry,
and take such evidence as may be necessary for the purpose of determining the
age of the person brought before it. The proviso to sub-section (2) is a rather
interesting one. In fact, this proviso throws some light on the main provision,
giving an extended leverage to the plea of juvenility. Thus, the plea of
juvenility can be raised before any Court, meaning thereby that there is no
question of finality in this regard until and unless an application filed,
invoking this provision, is determined in accordance with the 2015 Act and the
relevant rules.
When
such a plea is raised, it shall be recognised and cannot be brushed aside in a
casual or whimsical manner. A due determination must be made by judiciously
considering the material available on record. The Court is expected to travel
an extra mile to satisfy its conscience as to whether the case on hand would
attract the provisions of the 2015 Act and, for the aforesaid purpose, the
process enumerated thereunder will have to be necessarily followed. The proviso
further clarifies that the 2015 Act and the relevant rules are applicable even
if a person who has been accused of an offence, has ceased to be a child
on or before the date of the commencement of the 2015 Act.
PLEA
OF JUVENILITY VIS-A-VIS ‘FINAL DISPOSAL’
21.
We place emphasis on the words “even after the final disposal of the case”
in Section 9(2) of the 2015 Act. As stated, this provision 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. In a country like ours, where society is
fragmented due to various reasons including, but not limited to illiteracy and
poverty, the role which is assigned to the Court assumes great significance.
Sufficient opportunities must be given to the child in conflict with law to get
the benefit of the 2015 Act.
22.
Merely because a casual adjudication has taken place, it does not mean that a
plea of juvenility cannot be raised subsequently. This is for the simple reason
that the plea of juvenility has not attained finality. 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. Likewise, when such a plea
is not treated as one under Section 9(2) of the 2015 Act in
compliance with the procedural mandate specified thereunder, an order
rejecting such a plea would not be termed as a final one. To put it
differently, even assuming a plea of juvenility was raised but not considered
appropriately at the time of disposal of a Special Leave Petition/Statutory
Criminal Appeal, a Review Petition, or a Curative Petition thereafter, it would
not bar a competent Court from deciding the said issue by following due
procedure. We make it clear that if an adjudication is based on due
determination, then there may not be any room for another round of litigation.
But, in a case where the plea was not treated as an application
under Section 9(2) of the 2015 Act and, the procedure mandated
thereunder was not followed, the principle as aforesaid would certainly apply
as the right of raising the plea of juvenility has not ceased and, therefore,
subsists.
23.
Since the need for taking care of a juvenile in conflict with law is 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 this 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. Doing so is not an
exercise of the powers conferred under Articles 32, 136 or 226 of the
Constitution, 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. We shall now place on record the views expressed and judgments
rendered on the aspect of finality, and why a different view can be taken by
this Court, notwithstanding its earlier decision, in exercise of the powers
conferred under the Constitution:
Jethanand
and Sons v. State of Uttar Pradesh, 1961 SCC OnLine SC 193 : (1961) 3 SCR 754 :
AIR 1961 SC 794
“7. In our view, the order remanding the cases
under Section 151 of the Civil Procedure Code is not a judgment, decree or
final order within the meaning of Article 133 of the Constitution. By
its order, the High Court did not decide any question relating to the rights of
the parties to the dispute. The High Court merely remanded the cases for
retrial holding that there was no proper trial of the petitions filed by the
appellants for setting aside the awards. Such an order remanding the cases for
retrial is not a final order within the meaning of Article
133(1)(c). An order is final if it amounts to a final decision relating to
the rights of the parties in dispute in the civil proceeding. If after the
order, the civil proceeding still remains to be tried and the rights in dispute
between the parties have to be determined, the order is not a final order
within the meaning of Article 133….”
(emphasis
supplied)
Mohan Lal Magan Lal Thacker v. State of
Gujarat, 1967 SCC OnLine SC 137 : (1968) 2 SCR 685 : AIR 1968 SC 733
“4. The question as to
whether a judgment or an order is final or not has been the subject-matter of a
number of decisions; yet no single general test for finality has so far been
laid down. The reason probably is that a judgment or order may be final for one
purpose and interlocutory for another or final as to part and interlocutory as
to part. The meaning of the two words “final” and “interlocutory” has,
therefore, to be considered separately in relation to the particular purpose
for which it is required. However, generally speaking, a judgment or order
which determines the principal matter in question is termed final. It may be
final although it directs enquiries or is made on an interlocutory application
or reserves liberty to apply [Halsbury's Laws of England (3rd Edn.) Vol. 22,
742-43]. In some of the English decisions where this question arose, one
or the other of the following four tests was applied.
1. Was the order made
upon an application such that a decision in favour of either party would
determine the main dispute?
2. Was it made upon an
application upon which the main dispute could have been decided?
3. Does the order as
made determine the dispute?
4. If the order in
question is reversed, would the action have to go on?”
(emphasis
supplied)
Lily
Thomas v. Union of India, (2000) 6 SCC 224
“56. It follows,
therefore, that the power of review can be exercised for correction of a
mistake but not to substitute a view. Such powers can be exercised within the
limits of the statute dealing with the exercise of power. The review cannot be
treated like an appeal in disguise. The mere possibility of two views on the
subject is not a ground for review. Once a review petition is dismissed no
further petition of review can be entertained. The rule of law of following the
practice of the binding nature of the larger Benches and not taking different
views by the Benches of coordinated jurisdiction of equal strength has to be
followed and practised. However, this Court in exercise of its powers
under Article 136 or Article 32 of the Constitution and
upon satisfaction that the earlier judgments have resulted in deprivation of
fundamental rights of a citizen or rights created under any other statute, can
take a different view notwithstanding the earlier judgment.”
(emphasis
supplied)
HIERARCHY
OF DOCUMENTS
24.
Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007
(hereinafter referred to as the “2007 Rules”) must be understood and
appreciated in tune with the principal Act.
Rule
12 of the 2007 Rules
“12. Procedure to be
followed in determination of age.
xxx xxx xxx
(3) In every case
concerning a child or juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the Board or, as the case may be,
the Committee by seeking evidence by obtaining-
(a)(i) the
matriculation or equivalent certificates, if available; and in the absence
whereof;
(ii) the date of birth
certificate from the school (other than a play school) first attended; and in
the absence whereof;
(iii) the birth
certificate given by a corporation or a municipal authority or a panchayat;
(b)and only in the
absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion
will be sought from a duly constituted Medical Board, which will declare the
age of the juvenile or child. In case exact assessment of the age cannot be
done, the Court or the Board or, as the case may be, the Committee, for the
reasons to be recorded by them, may, if considered necessary, give benefit to
the child or juvenile by considering his/her age on lower side within the
margin of one year.
and, while passing
orders in such case shall, after taking into consideration such evidence as may
be available, or the medical opinion, as the case may be, record a finding in
respect of his age and either of the evidence specified in any of the clauses (a)(i),
(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof
of the age as regards such child or the juvenile in conflict with law.” 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 01.04.2001, Rule 12 of the 2007 Rules 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.
25.
Sub-rule (3) of Rule 12 is nothing but a rule of evidence. It 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. Sub-rule (3), apart from making a reference to specified
documents, debars resorting to the subsequently mentioned document, except
in a case where the earlier document(s) is/are not available. Therefore, 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 aforementioned three documents is
available, can one go for a medical opinion. While interpreting this Rule, we
make it clear that 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 under Rule 12 of the 2007 Rules.
26.
Section 94(2) of the 2015 Act is a reiteration of Rule 12 of the 2007 Rules,
and both should be read in consonance with each other.
Section 94 of the 2015 Act
“94. Presumption and Determination of age
xxx xxx xxx
(2) In case, the Committee
or the Board has reasonable grounds for doubt regarding whether the person
brought before it is a child or not, the Committee or the Board, as the case
may be, shall undertake the process of age determination, by seeking evidence
by obtaining —
(i) the date of birth
certificate from the school, or the matriculation or equivalent certificate
from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth
certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the
absence of (i) and (ii) above, age shall be determined by an ossification test
or any other latest medical age determination test conducted on the orders of
the Committee or the Board:
Provided such age
determination test conducted on the order of the Committee or the Board shall
be completed within fifteen days from the date of such order.”
JUVENILITY
AS AN ADMITTED FACT
27.
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 a
fact in issue. When a party makes an admission, either by way of an oral
statement or by acknowledging a document authored by them, the Court must
proceed on that basis. The resultant relief, which is axiomatic, cannot be
denied on the 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. Here, we may add a word of
caution. 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. It must be seen
contextually. While the former can be the basis for a relief, the latter is one
meant for adjudication vis-a-vis the facts of the case.
ACTUS
CURIAE NEMINEM GRAVABIT
28.
No one shall be prejudiced by an act of the Court. A 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. Hence, such a mistake
cannot act as a barrier for the party to get its due relief. However, we make
it clear that the mistake must be so apparent that it does not brook any
adjudication on the foundational facts.
A.R.
Antulay v. R.S. Nayak, (1988) 2 SCC 602
“82. Lord Cairns
in Rodger v. Comptoir D'escompte De Paris [(1869-71) LR 3 PC 465, 475 : 17 ER
120] observed thus:
“Now, Their Lordships
are of opinion, that one of the first and highest duties of all courts is to
take care that the act of the court does no injury to any of the suitors, and
when the expression ‘the act of the court’ is used, it does not mean merely the
act of the primary court, or of any intermediate court of appeal, but the act
of the court as a whole, from the lowest court which entertains jurisdiction
over the matter up to the highest court which finally disposes of the case. It
is the duty of the aggregate of those Tribunals, if I may use the expression,
to take care that no act of the court in the course of the whole of the
proceedings does an injury to the suitors in the court.”
83. This passage was
quoted in the Gujarat High Court by D.A. Desai, J., speaking for the Gujarat
High Court in Soni Vrajlal v. Soni Jadavji [AIR 1972 Guj 148 : (1972)
13 Guj LR 555] as mentioned before. It appears that in giving directions
on February 16, 1984, this Court acted per incuriam inasmuch it did not bear in
mind consciously the consequences and the provisions of Sections
6 and 7 of the 1952 Act and the binding nature of the larger
Bench decision in Anwar Ali Sarkar case [1952 SCR 284 : AIR 1952 SC 75 : 1952
Cri LJ 510] which was not adverted to by this Court. The basic fundamentals of
the administration of justice are simple. No man should suffer because of the
mistake of the court. No man should suffer a wrong by technical procedure of
irregularities. Rules or procedures are the handmaids of justice and not the
mistress of the justice. Ex debito justitiac, we must do justice to him. If a
man has been wronged so long as it lies within the human machinery of
administration of justice that wrong must be remedied. This is a peculiar fact
of this case which requires emphasis.”
(emphasis
supplied)
JUDICIAL
REVIEW OF THE PRESIDENTIAL ORDER
29.
The power of pardon, as conferred under Article 72 and 161 of
the Constitution, is sovereign. It is a power of compassion and empathy. It is
meant to remove or reduce all pains, penalties and punishment suffered by a
convict. The exercise of the aforementioned sovereign power by the highest
constitutional authority, either of the State or the Centre, is a final grace
given under the Constitution for the convict to reintegrate into the society.
30.
Power under Article 72 and 161 of the Constitution is not
appellate or revisional in nature. It is an executive power travelling on a
different channel, which cannot be termed as a power of appeal or review.
31.
A challenge to the exercise of power under Article
72 and 161 of the Constitution would involve limited judicial
review on grounds such as inadequate application of mind, amongst others.
Kehar Singh v. Union of India, (1989) 1 SCC 204
“10. We are of the
view that it is open to the President in the exercise of the power vested in
him by Article 72 of the Constitution to scrutinise the evidence on
the record of the criminal case and come to a different conclusion from that
recorded by the court in regard to the guilt of, and sentence imposed on, the
accused. In doing so, the President does not amend or modify or supersede the
judicial record. The judicial record remains intact, and undisturbed. The
President acts in a wholly different plane from that in which the Court
acted. He acts under a constitutional power, the nature of which is
entirely different from the judicial power and cannot be regarded as an extension
of it….”
(emphasis
supplied)
State
of Haryana v. Jagdish, (2010) 4 SCC 216
“28. Nevertheless, we
may point out that the power of the sovereign to grant remission is within its
exclusive domain and it is for this reason that our Constitution makers went on
to incorporate the provisions of Article 72 and Article
161 of the Constitution of India. This responsibility was cast upon the
executive through a constitutional mandate to ensure that some public purpose
may require fulfilment by grant of remission in appropriate cases. This power
was never intended to be used or utilised by the executive as an unbridled
power of reprieve. Power of clemency is to be exercised cautiously and in
appropriate cases, which in effect, mitigates the sentence of punishment
awarded and which does not, in any way, wipe out the conviction. It is a power
which the sovereign exercises against its own judicial mandate. The act of
remission of the State does not undo what has been done judicially. The
punishment awarded through a judgment is not overruled but the convict gets
benefit of a liberalised policy of State pardon….”
(emphasis
supplied)
Shatrughan Chauhan v. Union of India, (2014) 3
SCC 1
“242. In the aforesaid
batch of cases, we are called upon to decide on an evolving jurisprudence,
which India has to its credit for being at the forefront of the global legal
arena. Mercy jurisprudence is a part of evolving standard of decency, which is
the hallmark of the society.
xxx xxx xxx
244. It is well
established that exercising of power under Articles 72/161 by the President or
the Governor is a constitutional obligation and not a mere prerogative.
Considering the high status of office, the Constitution Framers did not stipulate
any outer time-limit for disposing of the mercy petitions under the said
Articles, which means it should be decided within reasonable time. However,
when the delay caused in disposing of the mercy petitions is seen to be
unreasonable, unexplained and exorbitant, it is the duty of this Court to step
in and consider this aspect. Right to seek for mercy under Articles 72/161 of
the Constitution is a constitutional right and not at the discretion or whims
of the executive. Every constitutional duty must be fulfilled with due care and
diligence, otherwise judicial interference is the command of the Constitution
for upholding its values.
245. Remember,
retribution has no constitutional value in our largest democratic country. In
India, even an accused has a de facto protection under the Constitution and it
is the Court's duty to shield and protect the same. Therefore, we make it clear
that when the judiciary interferes in such matters, it does not really
interfere with the power exercised under Articles 72/161 but only to uphold the
de facto protection provided by the Constitution to every convict including
death convicts.”
(emphasis
supplied)
32.Suffice
it is to state that Courts will have to exercise adequate caution and
circumspection while dealing with an executive order passed in exercise of the
power conferred under Article 72 or 161 of the Constitution. We make
it clear that when a challenge is made to an executive order, with an
independent prayer for exercising the power under Section 9(2) of the
2015 Act, they being distinct and independent, refusal of judicial review of
the former will not obliterate the mandatory duty pertaining to the latter.
FACTUAL
MATRIX
33.The
Appellant stood charged for the offence of culpable homicide amounting to murder.
The incident occurred way back on 15.11.1994. A statement under Section
313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as
“CrPC, 1973”) was recorded by the trial Court. Under the format of the
statement, the Appellant gave his name, his father’s name, his age and other
particulars. He had given his age as 20 years, as on 07.03.2001. In reply to
Question No. 26, he stated that it was correct that he had opened a bank
account and that a cheque book had been issued. This statement is irrelevant in
the context of juvenility.
34.
After his conviction, he raised the plea of juvenility during the hearing on
sentence by stating that he was about 17 years of age at the time of
occurrence. It is not in dispute that he was illiterate. The trial Court, while
relying upon his statement regarding the bank account, presumed that he was a
major and sentenced him to death, overwhelmed by the nature of the crime. On an
appeal to the High Court, the Appellant was represented by an Amicus Curiae. An
attempt was again made to raise the plea of juvenility, by stating that the
Appellant was required to be tried by a Juvenile Court and be given the benefit
of being a juvenile. Once again, the bank account and the cheque book were
relied upon. In tune with the thinking of the trial Court, the High Court was
also persuaded by the offence committed.
35.
The matter reached this Court. This time, the Appellant placed reliance upon
the birth certificate issued by the Dariya Para Bodinath Board School dated
28.04.2001. This Court, having found that the reasoning of the High Court
cannot be faulted with, dismissed the appeal. Thus, the views expressed by the
trial Court and confirmed by the High Court were duly concurred with.
Undeterred and undaunted, the Appellant filed a Review Petition, reiterating
the fact that he was a minor at the time of the offence. It was also pointed
out that it was his deceased employer who filled the details to open the bank
account. The Review Petition was dismissed. After the said dismissal, a
Mercy Petition filed before the Governor of the State of Uttarakhand, was also
rejected.
36.
Thereafter, a Writ Petition was filed before this Court, by the Appellant’s
parents along with a social worker, enclosing a copy of the school certificate
dated 19.06.2003 from the headmaster and a transfer certificate dated
28.04.2001. This Writ Petition filed invoking Article 32 of the
Constitution, was dismissed on 16.02.2005 with liberty to invoke the curative
jurisdiction of this Court. Accordingly, a Curative Petition was filed. It is
interesting to note that by way of a counter affidavit to the Curative
Petition, Respondent No. 2 herein, after verifying the school certificate,
produced another certificate dated 07.01.2006 issued by the Dariya Para
Bodinath Board School, which reiterated the fact that the Appellant was 14
years of age on the date of the occurrence. Unfortunately, this Curative
Petition was also dismissed by an order of this Court dated 06.02.2006.
37.
After the amendment incorporating Section 7A into the 2000 Act, the Appellant’s
mother filed a Mercy Petition before Hon’ble the President of India. During the
pendency of the said Mercy Petition, the 2007 Rules, came into effect.
Incidentally, an ossification test was also done by a Medical Board constituted
by the Meerut Jail, on a request made by the Appellant by way of an
application. The Medical Age Certificate issued therein also indicated
that the Appellant was aged around 14 years at the time of the occurrence.
38.
By the Presidential Order dated 08.05.2012, the death sentence of the Appellant
was commuted to life imprisonment, with a caveat that he shall not be released
until the attainment of 60 years of age. An application under the Right to
Information Act, 2005 was filed thereafter by the Appellant, through which
information was obtained from the bank that any minor above 10 years of age can
have an independent bank account, provided he knew how to read and write, and
also that no cheque book was issued for the bank account opened in the name of
the Appellant.
39.
A subsequent Curative Petition filed by him was rejected by the Registry as not
maintainable. In the year 2019, the Appellant filed a Writ Petition before the
High Court invoking Article 226 of the Constitution, laying a
challenge to the Presidential Order while seeking yet another relief on the
basis of Section 9(2) of the 2015 Act. By a comprehensive judgment,
the Writ Petition was dismissed by the High Court inter alia holding that the
power of judicial review over an executive order passed in exercise
of Article 72 of the Constitution is limited, and the proceedings
against the Appellant had attained finality. Suffice it is to state that merits
were not gone into in view of the clear stand of the State on the age of
the Appellant. Aggrieved, the Appellant is before us.
SUBMISSIONS
40.
Dr. S. Muralidhar, learned Senior Counsel appearing for the Appellant submitted
that the High Court committed an error in not considering the independent
prayer sought for by the Appellant. It is not in dispute that the age of the
Appellant was 14 years at the time of commission of the offence. There is no
judicial finality attained and the phrase “any stage” used in Section
9(2) of the 2015 Act must be given an extended meaning. There is no
contrary finding given against the Appellant vis- à-vis the plea of juvenility,
which he has raised at every stage. It is a case where grave injustice has been
meted out, as can be demonstrated by the lack of adjudication and, therefore,
the Appellant is entitled for immediate release. As the Appellant has been
unfairly kept under incarceration including the earlier solitary confinement,
which is obviously untenable and illegal, while granting the relief of
releasing the Appellant forthwith, he should be adequately compensated for the
loss of formative years suffered by him in the prison.
41.
To buttress his submissions, the Learned Senior Counsel has placed reliance
upon the following decisions:
(i) Section
9(2) of the Juvenile Justice Act, 2015 can be invoked even after the final
disposal of the case • Ram Narain v. State of Uttar Pradesh, (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.
(ii) Beneficial and
retrospective applicability of change in law post the dismissal of the Curative
Petition on 06.02.2006
• Hari Ram v.
State of Rajasthan, (2009) 13 SCC 211.
• Abdul Razzaq v.
State of Uttar Pradesh, (2015) 15 SCC 637.
• T Barai v.
Henry Ah Hoe and another, (1983) 1 SCC 177.
(iii) Claim of
juvenility can be raised and considered even after the President has exercised
powers under Article 72, Constitution of India • Kehar Singh v. Union
of India, (1989) 1 SCC 204.
• Ram Deo Chauhan v. Bani Kanta Das, (2010) 14
SCC 209.
42.
Per contra, Mr. K.M. Nataraj, learned Additional Solicitor General, and learned
Counsel Ms. Vanshaja Shukla appearing for the Respondents submitted that this
is an attempt to reopen and re-hear an issue which has attained finality. There
was indeed an adjudication by this Court on the earlier occasion. The Mercy
Petition was considered under the constitutional mandate and, therefore,
it does not require any interference. The Special Leave Petition, as filed, is
not maintainable. The bone ossification test cannot be the sole basis for
declaring the appellant as the minor. While summing up, the Learned Additional
Solicitor General submitted that without prejudice to the other contentions, if
this Court comes to the aid of the Appellant, it should be clarified that it
shall not stand as a precedent. In any case, there is due compliance of Rule
12(3) of the 2007 Rules, which is not in dispute, as can be seen even from the
present affidavit filed by the Respondent No.2.
43.To
buttress her submissions, the Learned Counsel for Respondent No. 2
has placed reliance upon the following decisions:
• Vinay Sharma v.
Union of India, (2020) 4 SCC 391.
• Pawan Kumar
Gupta v. State (NCT of Delhi), (2021) 13 SCC 249.
DISCUSSION
44.
During the course of the hearing, we directed Respondent No.2 to obtain fresh
instructions on the admission made in the counter affidavit filed by it in the
Curative Petition filed earlier by the Appellant. This was pertaining to the
certificate produced by the Appellant and the validity of the ossification
test. An affidavit has been filed by Respondent No. 2 reiterating its
earlier stand as regards the certificate. Therefore, on facts, there is no
dispute that the Appellant was only 14 years old at the time of the commission
of the offence.
45.
The facts as narrated above, speak for themselves. At every stage, injustice
has been inflicted by the Courts, either by ignoring the documents or by
casting a furtive glance. The 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.
46.
The approach of the Courts in the earlier round of litigation cannot be
sustained in the eye of law. There can be no reliance on the statement recorded
under Section 313 of CrPC, 1973 particularly when the Appellant was
asked to give his particulars for the purpose of recording his statement. Even
the said statement shows that he was 20 years of age at the time of making his
deposition, which could only mean that he was 14 years of age at the time of
the commission of the offence. The bank account has no relevance under the Acts
and the relevant rules, and in any case, it is to be proved, though not
contemplated under Rule 12 of the 2007 Rules. The statement given by the
Appellant at the time of the hearing on his sentence, would 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.
47.Though
the 2000 Act was already enacted before the Appellant’s conviction, even
assuming that only the 1986 Act was in vogue, the procedural mandate
contemplated thereunder was also not followed by the trial Court and the High
Court. Before this Court, the Appellant had relied upon the school certificate
in the Criminal Appeal. It was once again relied upon in the Review Petition. Thereafter,
additional documents were relied upon by the Appellant in the Writ Petition and
also in the Curative Petition which was subsequently filed. In the Curative
Petition, a counter affidavit was filed by the State certifying the documents
furnished by the Appellant to be true. Nonetheless, the said petition was
dismissed without according any reason.
48.
We are taking note of these facts only for the purpose of dealing with the case
as these discussions are not even relevant in view of the clear statement in
writing made on two occasions by the Respondent No. 2. We may further add that
even the then existing State Rules were not duly followed, and if followed, the
same would have enured to the benefit of the Appellant.
49.
We would only say that 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. In fact, there is no need for such an inquiry in view of the
aforesaid position. In our considered view, this Court could have dealt
with the Writ Petition filed under Article 32 of the Constitution, as
it raised an independent prayer for the enforcement of a right conferred under
a social welfare legislation.
50.In
the subsequent Writ Petition filed before the High Court, two different prayers
had been made, namely, 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. As the Executive cannot
be construed to have undertaken an adjudication on the determination of the age
of the accused, and with the first prayer being a distinct one invoking Section
9(2) of the 2015 Act, we feel that the High Court has committed an error
in its reasoning. We would only state that this is a case where the Appellant
has been suffering due to the error committed by the Courts. We have been
informed that his conduct in the prison is normal, with no adverse report. He
lost an opportunity to reintegrate into the society. The time which he has
lost, for no fault of his, can never be restored.
51.As
we find that the Appeal deserves to be allowed in view of the conclusion
arrived at, we are inclined to set aside the sentence imposed in excess of the
upper limit prescribed under the relevant Act, while maintaining the conviction
rendered. It cannot be construed that the Presidential Order is interfered
with, as the issue that we are concerned with, is the failure of the Court in
not applying the mandatory provisions of the 2015 Act with specific
reference to the plea of juvenility. Therefore, it is not a review of the
Presidential Order, but a case of giving the benefit of the provisions of the
2015 Act to a deserving person.
52.
From the custody certificate filed on record, it appears that the Appellant has
undergone imprisonment for almost 25 years, during which time, the society has
undergone significant transformation which the Appellant might be unaware of
and find difficult to adjust with.
53.
In view of the same, we direct the Uttarakhand State Legal Services Authority
(for short “the State Authority”) to play a proactive role in identifying any
welfare scheme of the State/Central Government, facilitating the Appellant’s
rehabilitation and smooth reintegration into the society upon his release, with
particular emphasis on his right to livelihood, shelter and sustenance
guaranteed under Article 21 of the Constitution. We further direct
the State Authority to assist him in availing any such scheme under which he is
found eligible and wishes to avail, and such assistance may be effected through
the concerned District Legal Services Authority, if the State Authority finds
the same expedient and necessary. The Registry is directed to forthwith
communicate this order to the State Authority.
54.The
Appeal is allowed. The impugned judgment stands set aside. The sentence imposed
against the Appellant in excess of the upper limit prescribed under the
relevant Act, shall stand set aside, while making it clear that the conviction
shall continue. The Appellant shall be released forthwith, if not required in
any other case.
55.
Pending application(s), if any, shall stand disposed of.
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