Juvenile Justice (Care and Protection of Children) Act, 2015 – ss. 9, 94 – Juvenility – Determination of – The applicant, along with two other accomplices had committed murder of five women, and two children – They were tried for commission of offences u/ss. 302, 342, 397, 449 r/w 120B and 34 of IPC – Trial Court sentenced the appellant to death – Both the judgment of conviction and order of sentence were confirmed by the High Court – The Supreme Court dismissed the appeal preferred by appellant against the said judgment – The review petition filed by appellant was also dismissed – The appellant (in detention for more than 28 years) filed present application under s. 9(2) of the Act of 2015, requesting Supreme Court to hold that the applicant was a juvenile on the date of commission of the offence – In 2019 by order, the Supreme Court referred the matter to the Principle District and Sessions Judge(Inquiring Judge) to decide the issue of juvenility of the applicant – The Inquiring Judge gave his report sustaining the applicant’s claim for juvenility – Held: On examination of various documents, it was found that the applicant’s original name was ‘Niranaram’ and the applicant discharged his part of onus to establish that it is he who has been tried and convicted as ‘Narayan’ – Now, considering the course adopted by the Inquiring Judge, s. 9(2) of the 2015 Act does not prescribe following the trial procedure, as stipulated in the 1973 Code and Evidence Act, 1872 – The legislature has not mandated any specific procedure to be followed by the Court for conducting inquiry to determine juvenility of the claimant under the 2015 Act – Therefore, Court can formulate its own procedure for conducting inquiry on this count – No flaw in the procedure which has been adopted by the Inquiring Judge in the instant case – As far as certificate of date of birth is concerned, the applicant has relied on the certificate issued by the School for determination of his age – Said certificate was issued by the office of the headmaster of the School – The principal of the school has in writing disclosed that the content of the admission register is maintained in ordinary course of business – In normal course the said register would satisfy the test specified in S.35 of the 1872 Act, of being a relevant fact – Hence, the date of birth of the applicant as reflected in the certificate issued by the School is to be accepted for determining his age at the time of commission of the offence of which he has been convicted – Going by that certificate, his age at the time of commission of offence was 12 years and 6 months – Thus, he was a child/juvenile on the date of commission of offence – Order sentencing him to death passed by the Trial Court and subsequently confirmed by the High Court and by the Supreme Court invalidated by operation of law.
Juvenile Justice (Care and Protection of Children) Act, 2015 – s. 9 (2) – Stage of raising juvenility plea – A petition u/s. 9 (2) of the 2015 Act contemplates statutory remedy, plea for which can be raised at any stage – On juvenility plea, if a writ petition is dismissed in limine, such order would not foreclose the option of an accused (or a convict) to make plea for juvenility under sub-section (2) of s.9 of the 2015 Act.
Juvenile Justice (Care and Protection of Children) Act, 2015 – ss. 9(2), 103 – ‘Inquiry’ – As far as the procedure for making an inquiry by the Court, s. 9(2) does not prescribe scrupulously following trial procedure, as stipulated in the Code of Criminal Procedure 1973 and the Indian Evidence Act, 1872 – The Court can formulate its own procedure for conducting inquiry. Allowing the application, the Court
HELD:1. The State has taken a plea that at the time of inquiry, sufficient time was not available to them to verify this fact. There are several documents where Niranaram has been shown to be the son of ‘C’. After the Inquiry Report was made in 2019, substantial time has lapsed since this Court heard the matter. No material was produced by the State to demonstrate that there was any other Niranaram in Jalabsar or another ‘C’. It is a fact that the claimant for juvenility has to establish his case. But it has also to be appreciated that a death row convict in prison for over 28 years would be under severe limitations in retracing his school records and other forms of age-proof. In such circumstances, in absence of any contrary evidence this Court accept the finding in the Inquiry Report given by the Principal District and Sessions Judge, Pune that Niranaram has to be said to be another name of “Narayan”. This Court’s opinion on this point would not vary even if this Court reject the certificate of the Sarpanch. That certificate plays a supportive role in determination of the name of the applicant. Moreover, in all these documents, Jalabsar has been shown as the village of which ‘C’ and his family were residents, and this was the place from where he was arrested. In this Court’s opinion, the applicant’s original name was Niranaram and the applicant has discharged his part of onus to establish that it is he who has been tried and convicted as Narayan. This Court accepted the finding of the Inquiring Judge on this point. [Para 19][1088-G-H; 1089-A-C]
2. As regards maintainability of the present application under Section 9(2) of the 2015 Act. In the applicant’s case, juvenility plea has been raised for the first time before this Court, albeit after dismissal of his review petition against his conviction and sentence having been upheld by this Court. It is a fact that the juvenility plea was raised in Writ Petition (Criminal) No. 126 of 2013 and this writ petition was dismissed in limine. But this dismissal would not operate as res judicata so far as the present application is concerned. Relief under Article 32 of the Constitution is discretionary in nature and the order of this Court dismissing that petition is not supported by reason. A petition under Section 9 (2) of the 2015 Act contemplates statutory remedy, plea for which can be raised at any stage. In this Courts’ opinion, on juvenility plea, if a writ petition is dismissed in limine, such order would not foreclose the option of an accused (or a convict) to make plea for juvenility under sub-section (2) of Section 9 of the 2015 Act. [Paras 20, 21][1089-D-F; 1090-D]
3. Next comes the question as to whether the course adopted by the Inquiring Judge was in terms of the provisions of the 2015 Act or not. It is apparent that the Inquiring Judge has conducted the inquiry typically as a fact-finding inquiry is conducted and has not followed the procedure of summons trial. The documents on which he relied on were not formally proved as is the normal procedure in a trial and there was no examination or cross-examination on oath. But as it would be evident from sub-section (1) of Section 103 of the 2015 Act, the prescription for following the procedure in summons cases is for the Juvenile Justice Board (“Board”) or the Child Welfare Committee (“Committee”) while holding any inquiry under the 2015 Act. Under Section 9(2) of the 2015 Act the Court also has been empowered to make an inquiry if the Court itself is of opinion that the person was the child on the date of the commission of offence. The mandate of following summons procedure has not been prescribed so far as inquiry which ought to be conducted by the Court. The manner in which evidence could be taken has not been mandated. The manner in which the Court shall conduct such inquiry has also not been specifically prescribed. The procedure which has been followed by this Court in the present case has been to direct a Principal District and Sessions Judge, a Senior Judicial Officer at the State Level, to conduct inquiry within a given timeframe. As this Court find from the Inquiry Report, the Inquiring Judge had directed a police officer to make authentication of the documents relied upon by the applicant and after the police officer gave his views on the authenticity of the documents, finding discrepancy in some of them. Thereafter, hearing was conducted before the Inquiring Judge, in which prosecution was represented by an officer holding the rank of Director General of Police (“DGP”). Both the prosecution and police had filed report and statement before the Inquiring Judge. The Inquiring Judge himself applied his mind considering the submissions of the prosecution as also the learned advocate of the applicant and the applicant himself was produced before the Inquiring Judge. The Inquiring Judge had marked the documents filed before him as exhibits. The Inquiring Judge examined each of the documents upon ascertaining the stand of the DGP and also the advocate representing the applicant. In application filed before us, extract from the school register was annexed which showed applicant’s date of birth as 1st February 1982. Before the Inquiring Judge, this Court found that in addition to the documents annexed to the application, a certificate of date of birth issued by the school authority was also furnished by the applicant. The latter was issued on the basis of school register but this certificate was dated 30th January 2019. [Paras 25, 27][1092-A; 1093-F-H; 1094A-E]
4. This Court found no flaw in the procedure which has been adopted by the Inquiring Judge. So far as the procedure for making an inquiry by the Court, in this Court’s opinion Section 9(2) of the 2015 Act does not prescribe scrupulously following trial procedure, as stipulated in the 1973 Code and the Indian Evidence Act, 1872. The requirement to follow the Code is “as far as practicable,” as per Section 103 (2) of the 2015 Act. The legislature, thus, while prescribing the summons trial procedure for inquiry by Board or Committee on age determination of a juvenile claimant has not mandated any specific procedure for inquiry by the Court. It follows, by implication, that the Court can formulate its own procedure for conducting inquiry on this count. So far as the present case is concerned, this Court had directed inquiry to be conducted by the Inquiring Judge at the first level, before whom the applicant and the prosecution had sufficient opportunity to present their version. The report of the Inquiring Judge was subsequently examined by us, again giving adequate opportunity to both sides. This Court has ourselves called for the original admission register from the school. The principal-incharge of the school, had given a statement in writing at the inquiry stage, and the translated version of which appears at page 311 of the Inquiry Report. [Para 28][1094-F; 1095-F-H; 1096-A]
5. The school in question is a government school. The “date of birth certificate” of Niranaram has been issued by the office of the headmaster of the said school. This certificate has been issued on the letterhead of the State Government carrying the national emblem. The principal of the school has in writing disclosed that the content of the admission register is maintained in ordinary course of business. Hence, in normal course the said register would satisfy the test specified in Section 35 of the 1872 Act, of being a relevant fact. [Para 33][1105-A-B]
6. As regards authenticity or genuineness of the admission register, which forms the basis of certificate of the applicant’s date of birth, an argument is made that the whole register was fabricated. His submission is that at the time the extract therefrom was produced before the Inquiring Judge, the same was not paginated. He also argues that the register was not stitched. Further, he has submitted that serial entry no. 566 of the register shows the date of entry of the student to be 2nd February 1980, which is not in order in relation to the other entries. He has also referred certain other entries in the register prior in order to serial no. 568, in which dates of admission of the respective students are earlier than that of the applicant. But these entries, at best, would show some defect in maintaining the records and cannot lead to the conclusion that the entire admission register is fabricated. Reference has also been made to an entry of one Lekhram, that stood against serial no. 423, which reappeared in entry 562. The endorsement of the school in serial no. 423 is that “his name was deleted” whereas against entry no. 562, recordal is “as per previous records”. This clearly appears to be the case of re-admission or re-entry in the school. His further stand is that there was interpolation of pages. He has again pointed out that one of the pages (page no. 33) of the register has been stitched in reverse. But these are nitpicking submissions and cannot lead to the conclusion that admission register itself is fake. So far as Niranaram’s name is concerned, in the admission register there is no discrepancy. His serial number is 568 which falls in order in which the register is maintained and is in sequence with the admission entries of other students barring few minor discrepancies as regards names in other entries. Even if the register has been freshly stitched and paginated to be sent to this Court, that would not lead to a conclusion that the whole thing has been fabricated. Moreover, there is no clear evidence to demonstrate that at the time of initial inquiry, the register was unstitched or without pagination. This Court have itself seen the register and it is of sufficient vintage. Thus, this Court agree with the Inquiring Judge that the date of birth recorded therein was not a fabricated entry. [Para 34][1105-D-H; 1106-A-C]
7. So far as the applicant is concerned, his claim of juvenility basedon his date of birth in the school certificate would not vary based on definitions of juvenile, “juvenile in conflict with law” or “child in conflict with law” under the 1986 Act, 2000 Act or the 2015 Act. For applying the procedure for determining his claim, of juvenility or of being a child, in this Court’s opinion, the law applicable at the time of undertaking that exercise by the concerned statutory body would prevail. Hence, in his case, this Court has tested his claim on the basis of the provisions of Section
9 read with Section 94 of the 2015 Act. [Para 40][1111-E-F]
8. Under the 2015 Act the date of birth certificate ought to be the main factor for determination of juvenility. In the case of Rishipal Singh Solanki, the two-Judge Bench of this Court has laid down the principle that an inquiry initiated under Section 9
(2) of 2015 Act would be similar to that contained in Section 94 of thereof. This Court accepted this view. This Court has called for the source of the date of birth certificate, which recorded the applicant’s birth date at the time of his entry into the school which was in the year 1986. So far as the inconsistent dates of birth mentioned in the other documents, none of them is specified to be taken into consideration for undertaking the process of age determination as laid down in Section 94 (2) of the said statute. Once the applicant has discharged his onus, in support of his claim of juvenility by producing the date of birth certificate from the school, the State had to come up with any compelling contradictory evidence to show that the recordal of his date of birth in the admission register was false. The State, in this case, has not come up with any such compelling evidence which would render such certificate to be unreliable or false. The State and the complainant have sought to disprove the applicant’s case on the basis of materials disclosed by him only, apart from the electoral roll. Here, this Court cannot indulge in any guesswork to doubt the entry in the school register. No evidence has been led to contradict the basis of the age of the applicant reflected in the aforesaid document. The certificate of date of birth as evidence of age having been provided in the statute itself, this Court shall go by that. The other factor which has crossed this Courts’s mind is as to whether a boy of 12 years could commit such a gruesome crime. But though this factor shocks this Court, this Court cannot apply speculation of this nature to cloud this Court’s adjudication process. This Court possess no knowledge of child psychology or criminology to take into account this factor while examining the report of the Inquiring Judge. Moreover, the age of the applicant revealed in the ossification test keeps the age of the applicant as claimed by him, within the range specified in the report. The said test was conducted in the year 2005, and his age was determined in the range of 22 to 40 years. If this Court take
22 years as his age in 2005, then his year of birth would haven been 1983. That would broadly correspond to the date of birth contained in the admission register. [Para 41][1111-G-H; 1112A-E]
9. In the light of this Court’s findings and the reasons this Court have disclosed above for arriving at such finding, this Court accept the report of the Inquiring Judge. This Court declare that the date of birth of the applicant as reflected in the certificate issued by the Rajkiya Adarsh Uccha Madhaymik Vidyalaya, Jalabsar, tehsil Shri Dungargarh, district – Bikaner, dated 30th January 2019, a copy of which has been annexed in the Inquiry Report as “I-2”, is to be accepted for determining his age at the time of commission of the offence of which he has been convicted. Going by that certificate, his age at the time of commission of offence was 12 years and 6 months. Thus, he was a child/juvenile on the date of commission of offence for which he has been convicted, in terms of the provisions of the 2015 Act. This shall be deemed to be the true age of Niranaram, who was tried and convicted as Narayan. He has already served more than 3 years of incarceration and under the law as it prevailed at the time of commission of offence as also under the 2015 Act, he cannot be subjected to capital punishment. In view of this finding, the order sentencing him to death passed by the Additional Sessions Judge, Pune in Sessions Case No. 462 of 1994 and subsequently confirmed by the High Court and by this Court would stand invalidated by operation of law. He shall be set free forthwith from the correctional home in which he remains imprisoned, as he has suffered imprisonment for more than 28 years, having regard to the provisions of Section 18 of the 2015 Act. Section 21 of the 1986 Act also carried substantially the same provision on the question of maximum punishment that can be awarded to a delinquent juvenile by the Juvenile Court. The restriction on term of detention that can be awarded by the Board under the 2015 Act to a child below 16 years would also apply to the Court before which the juvenility question is being determined. [Para 43][1113-E-H; 1114-A-C]
Ashwani Kumar Saxena v. State of Madhya Pradesh (2012) 9 SCC 750 : [2012] 10 SCR 540 – relied on. Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC
604 : [1988] Suppl. SCR 1; Surajdeo Mahto & Another v. State of Bihar (2022) 11 SCC 800; Mohd. Anwar v. State (NCT of Delhi) (2020) 7 SCC 391; Ramdeo
Chauhan alias Raj Nath v. State of Assam (2001) 5 SCC
714 : [2001] 3 SCR 669; Sanjeev Kumar Gupta v. State of Uttar Pradesh and Another (2019) 12 SCC 370 : [2019] 9 SCR 735; Parag Bhati (Juvenile) through Legal Guardian- Mother-Rajni Bhati v. State of Uttar Pradesh and Another (2016) 12 SCC 744 : [2016] 2 SCR 1089; Manoj alias Monu alias Vishal Chaudhary v. State of Haryana and Another (2022) 6 SCC 187; Babloo Pasi v. State of Jharkhand and Another (2008)
13 SCC 133 : [2008] 14 SCR 161 – distinguished. Murari Thakur & Another v. State of Bihar (2009) 16 SCC 256 : [2006] 10 Suppl. SCR 988 – held not good law.
Ram Vijay Singh v. State of Uttar Pradesh 2021 SCC OnLine SC 142; Abuzar Hossain alias Golam Hossain v. State of West Bengal (2012) 10 SCC 489 : [2012] 9 SCR 244; Pawan Kumar Gupta v. State (NCT of Delhi) (2020) 2 SCC 803 : [2020] 1 SCR 69; Pawan v. State of Uttaranchal (2009) 15 SCC 259 : [2009] 3 SCR 468; Ravinder Singh Gorkhi v. State of U.P. (2006) 5 SCC 584 : [2006] 2 Suppl. SCR 615; Hari Ram v. State of Rajasthan and Another (2009) 13 SCC 211 : [2009]
7 SCR 623; Abdul Razzaq v. State of Uttar Pradesh (2015) 15 SCC 637; Vinod Katara v. State of Uttar Pradesh 2022 SCC OnLine SC 1204; Ram Narain v. State of Uttar Pradesh (2015) 17 SCC 699 : [2015] 9 SCR 200; Upendra Pradhan v. Stae of Orissa (2015)
11 SCC 124 : [2015] 5 SCR 214; Ajay Kumar v. State of Madhya Pradesh (2010) 15 SCC 83; Sheo Mangal Singh and Others v. State of U.P. (1989) SCC OnLine All 605; Rishipal Singh Solanki v. State of Uttar Pradesh and Others (2022) 8 SCC 602; Pratap Singh v. State of Jharkhand and Another (2005) 3 SCC 551 : [2005] 1 SCR 1019; Jitendra Singh Alias Babboo Singh and Another v. State of Uttar Pradesh (2013) 11 SCC 193 : [2013] 13 SCR 764; Dharambir v. State (NCT of Delhi) and Another (2010) 5 SCC 344 : [2010] 5 SCR 137; Mahesh Jogi v. State of Rajashthan (2014) 15 SCC
184 : [2014] 11 SCR 293; Satya Deo alias Bhoorey v. State of Uttar Pradesh (2020) 10 SCC 555; State of Jammu & Kashmir (Now U.T. of Jammu and Kashmir) and Others v. Shubham Sangra 2022 SCC OnLine SC 1592; Rajinder Chandra v. State of Chhattisgarh and Another (2002) 2 SCC 287 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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