Supreme Court of India
BALU @ BAKTHVATCHALUversusSTATE OF TAMIL NADU
- Citation
- 2008 INSC 177
- Decided
- 12 February 2008
- Disposal
- Case Allowed
- Bench
- S B SINHA
Holding
The trial judge must hold an enquiry into the appellant’s age on the date of the offence and, if he is a juvenile within the meaning of the applicable Juvenile Justice Act, the matter must be proceeded with accordingly.
Summary
The appellant, Balu (Bakthavatchalu), was convicted of murder under IPC 302 for an incident that occurred on 20 April 1998. The trial court recorded his age as 18 and rejected his application to be sent to a Borstal School. On appeal, the Supreme Court was asked to determine whether he was a juvenile at the time of the offence. The Court examined the definitions of "juvenile" under the Juvenile Justice Act, 1986 (under 16) and the Juvenile Justice (Care and Protection of Children) Act, 2000 (under 18), as well as the effect of Section 20 of the 2000 Act and the 2006 amendment. Relying on earlier decisions, the Court held that an enquiry into the appellant’s age on the date of the offence must be conducted by the trial judge, and if he is found to be a juvenile, the case must be dealt with under the appropriate juvenile justice provisions. Consequently, the appeal was allowed and the trial court was directed to hold the enquiry.
Issues considered
- Whether the appellant was a juvenile on the date of commission of the offence for purposes of the Juvenile Justice statutes.
- Which date is determinative for assessing juvenile status – the date of the offence or the date of commencement of the 2000 Act.
- Whether Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 applies to pending criminal proceedings initiated under the 1986 Act.
- Whether the trial court should be directed to conduct an enquiry into the appellant’s age.
Legislation cited
Subjects
juvenile justiceage determinationmurderIPC 302pending criminal caseSection 202006 amendmentenquirySupreme Court
Judgment
[2008] 2 S.C.R. 756
A BALU @ BAKTHVATCHALU
II.
STATE OF TAMIL NADU
(Criminal Appeal No.
295 of 2008)
FEBRUARY 12, 2008
8
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]
Juvenile Justice Act, 1986 - Age of delinquent juvenile
- Determination of, on the date of commission of offence -
C Appeal before Supreme Court - Trial judge directed to hold
enquiry as regards the age of juvenile on the date of
commission of offence - Juvenile Justice (Care and Protection ·
of Children) Act, 2000 - Juvenile Justice (Care and Protection
of Children) Amendment Act, 2006.
D The question which arose for consideration in this
appeal was whether the appellant who was prosecuted
for commission of offence of murder under section 302
IPC was a juvenile on the date of occurrence of incident.
E Allowing the appeal and issuing directions to trial
judge, the Court
HELD: In the instant· case, the trial judge should be
directed to hold the enquiry in regard to the age of the
appellant on the date of commission of the offence and in
F the event it is found that the appellant was juvenile within
the meaning of the provisions of the Juvenile Justice Act,
-.
1986, he should proceed with the matter in accQrdance
with law. [Para 16) [765-8)
Pratap Singh vs. State of Jharkhand 2005 (3) SCC 551;
G Gurpreet Singh vs. State of Punjab 2005 (12) SCC 615;
Ravinder Singh Gorkhi vs. State of U.P. 2006 (5) SCC 584;
Jitendra Ram vs. State of Jharkhand 1006 (9) SCC 428 -
relied on.
H 756
BALU@ BAKTHVATCHALU v. STATE OF TAMIL NADU 757
[S.B. SINHA, J.]
Amit Das vs. State of Bihar 2000 (5) SCC 488- A
referred to·.
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 295 of 2008.
From the final Judgment and Order dated 16.11.2005 of s
the High Court of Judicature at Madras in Criminal Appeal No.
724/2001.
Rana Mukherjee, Anand, lndrani, lshit Saharia and Abhijit
Sengupta for the Appellant.
c
V.G. Pragasam, S. Joseph Aristotle, S. Prabu
Ramasubramanian for the Respondent.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
D
2. Appellant was prosecuted for commission of an offence
under Section 302 of the India Penal Code. The occurrence
took place on 20th April, 1998. He was arrested on the charge
of murder of one Ramu Maistry on 8th May, 1998. Upon
completion of investigation a charge sheet was filed against E 1
him on 30th November, 1998. The learned trial court delivered
a judgment on 28th April, 2000. In the said judgment his age
was shown to be '18'. An application was filed for sending him
to Borstal School in terms of Section 10-A of the Tamil Nadu
Borstal Schools Act, which was refused. An appeal preferred F
by the appellant before the High Court has been dismissed by
reason of the impugned judgment.
This Court issued a limited notice as to whether the
appellant was a juvenile on the date of occurrence of the incident.
G
3. Mr. Mukherjee, the learned counsel appearing on behalf
;
of the appellant, submitted that in view of the materials placed
' on records, an inquiry should have been initiated as regards
(
the age of the appellant.
4. The Juvenile Justice Act, 1986 (hereinafter referred to H
758 SUPREME. COURT REPORTS [2008] 2 S ..C,.R. . ' -.
,J
'
A as "the Act" was applicable when the incident took place, In '
'
terms whereof, a juvenile, under Section 2(h) was defined as a
boy who has ·not attained the age of 16 years.
5. The Parliament, however, enacted, th~ Juvenile Justice
(Care· and Protection of Children) Act, 2000. It came into force
B with effect from 1st April, 2001.
6. Section 2(k) defines 'juvenile' to mean a person who
has not c~mpleted eighteen years of age.
7. Section 20 of the Act reads as under:-
c
"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
D in that area, shall be continued in that court as if this Act
had not been passed ~nd if the court finds that the juvenile
has committed an offr:;!nce, 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
E 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."
8. A question was raised as to whether the date on which
the incident took place orthe date on which the .accused was r-
. F produced before the Court would be the relevant date for ~ 'f'.
computing ·the age of juvenile in view of the decision of this Court 'L
in Amit Das vs. State of Bihar : (2000) 5 SCC 488~ The
correctness of the said decision came up for consideration
before a Constitution Bench of this Court in Pratap Singh vs.
G State of Jharkhand: (2005) 3 SCC 551. The Constitution Bench
.held·, · - ----,..
i... '
· "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. The sentence "notwithstanding
H
BALU@ BAKTHVATCHALU v. STATE OF TAMIL NADU 759
[S.B. SINHA, J.]
anything contained in this Act, all proceedings in respect A
of a juvenile pending in any court in any area on the date
on which this Act came into force" has great significance.
The proceedings in respect of a juvenile pending in any
court referred to in Section 20 of the Act are relatable to
proceedings initiated before the 2000 Act came into force B
and which are pending when the 2000 Act came into force.
The term "any court" would include even ordinary criminal
courts. If the person was a "juvenile" under the 1986 Act
the proceedings would not be pending in criminal courts.
They would be pending in criminal courts only if the boy C
had crossed 16 years or the girl had crossed 18 years.
This shows that Section 20 refers to cases where a person
had ceased to be a juvenile under the 1986 Act but had
not yet crossed the age of 18 years then the pending case
shall continue in that court as if the 2000 Act has not been D
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, .shall
forward the juvenile to the Board which shall pass orders
in respect of that juvenile. "
It concluded :-
"37. The net result is:
(b) The 2000 Act would be applicable in a pending F
proceeding in any court/authority initiated under the 1986
Act and is pending when the 2000 Act came into force
and the person had not completed 18 years of age as on
1-4-2001."
G
In a separate judgment, one of us (S.B. Sinha, J.) stated:-
"95. Section 20 of the Act of 2000 would, therefore, be
applicable when a person is below the age of 18 years as
on 1-4-2001. For the purpose of attracting Section 20 of
the Act, it must be established that: ( i ) on the date of H
)/
760 SUPREME COURT REPORTS [2008] 2 S.C.R.
;,..
A coming into force the proceedings in which the petitioner
was accused were pending; and ( ii ) on that day he was
!
below the age of 18 years. For the purpose of the said
Act, both the aforementioned conditions are required to
be fulfilled. By reason of the provisions of the said Act of
B 2000, the protection granted to a juvenile ha$ only been
extended but such extension is not absolute but only a
limited one. It would apply strictly when the conditions Ii--
-4
precedent therefor as contained .in Section 20 or Section
64 are fulfilled. The said provisions repeatedly refer theto
c words "juvenile" or "delinquent juveniles" specifically. This
~--
appears to be the object of the Act and for ascertaining
the true intent of Parliament, the rule of purposive
construction must be adopted. The purpose of the -Act
would stand defeated if a child continues to be .in the
company of an adult. Thus, the Act of 2000 intends to give
D
the protection only to a juvenile within the meaning of the ,A
said Act and not an adult. In other words, although it would
apply to a person who is still a juvenile having not attained
the age of 18 years but shall not apply to a person who
has already attained the age of 18 years on the date of
E coming into force thereof or who had not attained the age
of 18 years on the date of commission of the offence but
has since ceased to be a juvenile."
9. Recently the Parliament has introduced Juvenile Justice
F (Care and Protection of Children) Amendment Act, 2006 (which ~ ....-
came into force with effect from 23.8.2006), in terms whereof
retrospective and restorative meaning was given to the
definition of Juvenile' stating :-
"4. In section 2 of the principal Act, -
G
(iv) for clause (I), the following clause shall be substituted, ~
namely:-
(I) "juvenile in conflict with law" means a juvenile
who is alleged to have committed an offence l<
H and has not completed eighteenth year of age
~
BALU@ BAKTHVATCHALU v. STATE OF TAMIL NADU ·751
-r [S.B. SINHA, J.]
...,_
as on the date of commission of such offence;" A
10. In view of the decision of the Constitution Bench of this
Court as also the amendments carried out by the Parliament,
evidently the question as to whether the appellant was aged
'18' as on 1st April, 2001 requires consideration.
B
11. In a situation of this nature, where despite the possibility
-I of a juvenile having been tried and convicted for rigorous
A
imprisonment for life by the trial court or the High Court, this
Court has in a large number of decisions directed an enquiry to
be made as regards the age of the juvenile. c
12. We shall refer to a few of them.
13. In Gurpreet Singh vs. State of Punjab : (2005) 12 SCC
615 a Bench of this Court opined :-
"18. Shri Prabha Shanker Misra, learned Senior Counsel D
appearing in support of Criminal Appeal No. 71 O of 1995
apart from challenging the conviction of the appellant
Mohinder Pal Singh on merits, which we have already
dealt with, submitted that on the date of the alleged
occurrence, he was a juvenile within the meaning of Section E
2( h ) of the Juvenile Justice Act, 1986 (hereinafter referred
to as "the Act") as on that date he had not attained the age
of 16 years. It appears that this point was not raised either
before the trial court or the High Court. But it is well settled
- ._. that in such an eventuality, this Court should first consider F
the legality or otherwise of conviction of the accused and
in case the conviction is upheld, a report should be called
for from the trial court on the point as to whether the accused
was juvenile on the date of occurrence and upon receipt
of the report, if it is found that the accused was juvenile on
G
such date and continues to be so, he shall be sent to
~ juvenile home. But in case it finds that on the date of the
occurrence, he was juvenile but on the date this Court is
passing final order upon the report received from the trial
court, he no longer continues to be juvenile, the sentence
H
y
I
762 SUPREME COURT REPORTS [2008] 2 S.C.R.
....
....._
A imposed against him would be liable to be set· aside.
Reference in this connection may be made to a decision
of this Court in Bhoop Ram v. State of U.P 7 in which·
case at the time of grant of special leave to appeal, report
was called for from the trial court as to whether the accused
B was juvenile or not which reported that the accused was
~ot a juvenile on the date of the occurrence but this Court,
differing with the report of the trial court, came to the ~
"'-·
conclusion that the accused was juvenile on the date the
offence was committed and as he was no longer a juvenile
c on the day of judgment of this Court, sentence awarded
against him was set aside, though the conviction was
upheld. In the present case, we have already upheld the
conviction of the appellant Mohinder Pal Singh as well but
it would be just and e~pedient to call for a report from the
trial court in relation to his age on the date of the
D
occurrence." A.
It was directed :-
"20. In Criminal Appeal No. 710 of 1995 filed by appellant
Mohinder Pal Singh, call for a report from the trial court as
E to whether on the date of occurrence this appellant was
juvenile within the meaning of Section 2(h) of the Juvenile
Justice Act, 1986? The trial court shall give opportunity to
both the parties to adduce evidence on this point. Let the
entire original records of the trial court be returned to it.
F Report as well as records must be sent to this Court within
a period of three months from the receipt of this order.
Upon receipt of report from.the trial court, final order shall
be passed in this appeal."
G 14. In Ravinder Singh Gorkhi vs. State of UP: (2006) 5
SCC 584 this Court held :-
"21. Determination of the date of birth of a person before
a court of law, whether in a civil proceeding or a criminal
proceeding, would depend upon the facts and
H circumstances of each case. Such a date of birth has to
,.
-+ BALU@ BAKTHVATCHALU v. STATE OF TAMIL NADU 763
~ [S.B. SINHA, J.]
--+ be determined on the basis of the materials on records. A
It will be a matter of appreciation of evidence adduced by
the parties. Different standards having regard to the
provision of Section 35 of the Evidence Act cannot be
applied in a civil case or a criminal case. It was furthermore
held:- 8
"38. The age of a person as recorded in the school register
-.\ or otherwise may be used for various purposes, namely,
"' for obtaining admission; for obtaining an appointment; for
contesting election; registration of marriage; obtaining a
separate unit under the ceiling laws; and even for the c
purpose of litigating before a civil forum e.g. necessity of
being represented in a court of law by a guardian or where
a suit is filed on the ground that the plaintiff being a minor
he was not appropriately represented therein or any
transaction made on his behalf was void as.. he was a D
minor. A court of law for the purpose of determining the
age of a party to the lis, having regard to the provisions of
Section 35 of the Evidence Act will have to apply the same
standard. No different standard can be applied in case of
an accused as in a case of abduction or rape, or similar E
offence where the victim or the prosecutrix although might
have consented with the accused, if on the basis of the
entries made in the register maintained by~tfie""school, a
judgment of conviction is recorded, the accused would be
deprived of his constitutional right under Article 21 of the F
.. ..... Constitution, as in that case the accused may unjustly be
convicted.
39. We are, therefore, of the opinion that until the age of
a person is required to be determined in a manner laid
down under a statute, different standard of proof should G
not be adopted. It is no doubt true that the court must
......
strike a balance. In case of a dispute, the court may
appreciate the evidence having regard to the facts and
circumstances of the case. It would be a duty of the court
of law to accord the benefit to a juvenile, provided he is H
y
764 SUPREME COURT REPORTS [2008] 2 S.C.R.
A one. To give the same benefit to a person who in fact is +-
not a juvenile may cause injustice to the victim. In this
case, the appellant had never been serious in projecting
his plea that he on the date of commission of the offence
was a minor. He made such statement for the first time
B while he was examined under Section 313 of the Code of
Criminal Procedure.
~
40. The family background of the appellant is also a 4
relevant fact. His father was a "Pradhan" of the village. He
was found to be in pos~ession of an unlicensed firearm.
c He was all along represented by a lawyer. The court
estimated his age to be 18 years. He was tried jointly with ·
the other accused. He had been treated alike with the
other accused. On merit of the matter also the appellant
· stands on the same footing as the other accused. The
D prosecution has proved its case. In fact no such plea could
be raised as the special leave petition of the persons
similarly situated was dismissed when the Court issued
notice having· regard to the contention raised by him for
the first time that he was a minor on the date of occurrence."
E 15. However, in Jitendra Ram vs. State of Jharkhand :
(2006) 9 SCC 428 this Court noticed that in a similar situation it
would be necessary to make an enquiry. It was stated :-
"2o.·we are, however, not oblivious of th~ decision of this
F Court in Bhola Bhagat v. State of Bihar wherein an
...... ;.
obligation has been cast on the court that where such a
plea is raised having regard to the beneficial nature of the
socially oriented legislation, the same should be examined
with great care. We are, however, of the opinion that the
same would not mean that a person who is not entitled to
G
the benefit of the said Act would be dealt with leniently only
because such a plea is raised. Each plea must be judged ~
on its own merit. Each case has to be considered on the
basis of the materials brought on records."
H It was furthermore held :-
BALU @ BAKTHVATCHALU v. STATE OF TAMIL NADU 765
[S.B. SINHA, J.]
22. We, therefore, are of the opinion that the determination A
of the age of the ·appellant as on the date of the
commission of the offence should be done afresh by the
learned Sessions Judge."
16. We are, therefore, of the view that in this case the trial
judge should be directed to hold the enquiry in regard to the S
age of the appellant on the date of commission of the offence
and in the event it is found that the appellant was a juvenile within
the meaning of the provisions of the said Act, he should proceed !
with the matter in accordance with law. It is directed accordingly.
c
17. The appeal is allowed on the aforesaid terms.
N.J. Appeal allowed.
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