Supreme Court of India
VINOD KATARAversusSTATE OF UTTAR PRADESH
- Citation
- 2022 INSC 949
- Decided
- 12 September 2022
- Disposal
- Directions issued
- Bench
- DINESH MAHESHWARI
Holding
Section 7A allows a claim of juvenility to be raised at any stage, and age must be determined by the documentary hierarchy in Rule 12, with medical testing only where such documents are absent or unreliable; therefore the Court directed a fresh inquiry by the Sessions Court.
Summary
Vinod Katara, convicted to life imprisonment for murder in 1982, later claimed he was a juvenile at the time of the offence based on a medical board report and a Family Register showing a birth year of 1968. He filed a writ petition under Article 32 seeking relief under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000, despite the final disposal of his appeal and Special Leave Petition. The Court held that Section 7A permits a claim of juvenility to be raised at any stage and that age must be ascertained following the hierarchy of documentary evidence prescribed in Rule 12 of the 2007 Rules, resorting to medical tests only when such documents are unavailable or unreliable. The Family Register, while not equivalent to a matriculation certificate, may be considered, and the ossification test is not conclusive for a person now over 50 years old. Consequently, the Supreme Court directed the Sessions Court to verify the authenticity of the Family Register, conduct a fresh ossification test if necessary, and submit a report within a month.
Issues considered
- The permissibility of raising a claim of juvenility under Section 7A after the final disposal of the criminal proceedings.
- The proper procedure for age determination, including the hierarchy of documentary evidence under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and Section 94 of the 2015 Act.
- The evidentiary value of a Family Register issued under the U.P. Panchayat Raj Act for establishing age.
- The admissibility and reliability of an ossification (bone‑age) test, especially for an appellant now aged over 50.
- The consequences on the conviction and sentence if the appellant is found to have been a juvenile on the date of the offence.
Legislation cited
- Code of Criminal Procedure, 1973s. 2(g), s. 2(h)
- Constitution of Indias. Article 32, s. Article 39
- Indian Evidence Act, 1872s. 65B
- Juvenile Justice (Care and Protection of Children) Act, 2000s. 16, s. 20, s. 3, s. 7A
- Juvenile Justice (Care and Protection of Children) Act, 2015s. 15, s. 21, s. 94
- Juvenile Justice (Care and Protection of Children) Rules, 2007s. 12(3)(b), s. 3(1), s. 3(2)
- U.P. Panchayat Raj Act, 1947s. 110
Subjects
juvenile justiceclaim of juvenilityage determinationossification testSection 7AFamily Registerlife imprisonmentbest interest of childlegal aid
Judgment
836 [2022]REPORTS
SUPREME COURT 9 S.C.R. 836 [2022] 9 S.C.R.
A VINOD KATARA
v.
STATE OF UTTAR PRADESH
(Writ Petition (Criminal) No. 121 of 2022)
B SEPTEMBER 12, 2022
[DINESH MAHESHWARI AND J. B. PARDIWALA, JJ.]
Juvenile Justice (Care and Protection of Children) Act, 2000:
ss. 3, 7A, 16, 20 – Applicability of the 2000 Act – Plea of juvenility
at belated stage – Determination of juvenility – On facts, writ
C
applicant while undergoing sentence of life imprisonment for offence
punishable u/s. 302/34 subjected to medical examination by the
State in pursuant of the judgment by the High Court wherein the
High Court directed the Juvenile Justice Boards to hold an enquiry
for determination of the age of prisoners languishing in jails who
D claimed to have been juveniles in conflict with the law – Medical
Board certified that on the date of the commission of the alleged
offence, the writ applicant could have been around 15 years of age
– Thereafter, writ applicant obtained a Family Register Certificate
which shows his age as 14 years – Instant writ petition filed by the
applicant claiming juvenility – Held: In view of s. 7A, the plea of
E
juvenility could be raised in any court, at any stage even after the
final disposal of the Special Leave Petition – It is the documentary
evidence placed on record that plays a major role in determining
the age of a juvenile in conflict of law – It is only in the cases where
the documents or certificates placed on record by the accused in
F support of his claim of juvenility are found to be fabricated or
manipulated, that the Court, the Juvenile Justice Board or the
Committee need to go for medical test for age determination – On
facts, the Family Register cannot be accepted as equivalent to
matriculation certificate to prove the age of the accused – Convict
was subjected to medical examination, however, the report on record
G
does not inspire much confidence – Despite all the odds against the
writ applicant, the matter to be looked into, in the larger interest of
justice – Sessions court directed to examine the claim of the writ
applicant to juvenility in regard with law within the stipulated period
– If the Family Register is found to be authentic and genuine,
H
836
VINOD KATARA v. STATE OF UTTAR PRADESH 837
ossification test report would not be required – Presiding Officer to A
ascertain the authenticity and genuineness of the Family Register,
and the Sessions Court to conduct ossification test or any other
modern recognized method of age determination, and submit its
report – Juvenile Justice (Care and Protection of Children) Act,
2015 – s. 94 – Juvenile Justice (Care and Protection of Children)
B
Rules, 2007 – rr. 3(1), 3(2) and 12(3)(b) – Constitution of India –
Arts. 32 and 39 – Juvenile Justice (Care and Protection of Children)
Amendment Act, 2011.
Issuing directions, the Court
HELD: 1.1 It is well settled that in terms of Section 20 of C
the Juvenile Justice (Care and Protection of Children) Act, 2000,
in all cases where the accused was above 16 years but below 18
years of age on the date of occurrence, the proceedings pending
in the Court would continue and be taken to the logical end
subject to an exception that upon finding the juvenile to be guilty,
the Court would not pass an order of sentence against him but D
the juvenile would be referred to the Board for appropriate orders
under the 2000 Act. From a reading of Section 7A what becomes
very obvious is that whenever a claim of juvenility is raised, an
inquiry has to be made and such inquiry would take place by
receiving evidence which would be necessary but not an affidavit E
so as to determine the age of such person. [Paras 25, 28][856-F-
G; 857-D-E]
1.2 Sub-clause (3) of the Rule 12 of the Juvenile Justice
(Care and Protection of Children) Rules, 2007 clearly mandates
that while conducting an inquiry about the juvenility of an accused, F
the Juvenile Justice Board would seek evidence by obtaining
the matriculation or equivalent certificates and in the absence
whereof the date of birth certificate from the school first attended
and in absence whereof the birth certificate given by a corporation
or a Municipal authority or a Panchayat. It is made clear by sub-
clause (b) that only in the absence of the said three documents, G
medical information would be sought from a duly constituted
Medical Board which will declare the age of the juvenile or child.
Thus, it is only in the absence of the aforesaid documents that
the Juvenile Justice Board could have asked for medical
information/ossification test. The 2000 Act stands repealed by H
838 SUPREME COURT REPORTS [2022] 9 S.C.R.
A the 2015 Act. The procedure for determining the age is now part
of Section 94 of the 2015 Act which was earlier provided under
the Rule 12 of the Rules. [Para 32, 33][861-C-F]
1.3 Section 7A(1) of the 2000 Act and the proviso thereto
provided that a claim of juvenility might be raised before any
B court and it shall be recognized at any stage, even after the final
disposal of the case, and such claim shall be determined in terms
of the provisions contained in the 2000 Act and the Rules made
thereunder, even if the juvenile has ceased to be so, on or before
the date of commencement of the 2000 Act. Sub-section (2) of
Section 7A mandates that if the Court finds a person to be a
C juvenile on the date of the commission of offence under sub-
section (1), it shall forward the juvenile to the Juvenile Justice
Board for passing an appropriate order, and the sentence, if any,
passed by a Court shall be deemed to have no effect. [Paras 39,
40][871-A-C]
D 1.4 The maximum period of detention in respect of a
juvenile is three years as provided in Section 15(1)(g). The said
Section provides that where the Juvenile Justice Board is, on
inquiry, satisfied that the juvenile has committed an offence, then
notwithstanding anything to the contrary contained in any other
E law for the time being in force, the Juvenile Justice Board may, if
it thinks fit, make an order directing the juvenile to be sent to a
special home for a period of three years. [Para 42][872-B-C]
1.5 In view of Section 7A of the 2000 Act, applicable to the
writ applicant, the plea of juvenility could be raised in any court,
F at any stage even after the final disposal of the Special Leave
Petition under Article 136 of the Constitution. In the case of the
writ applicant, his Special Leave Petition had also been dismissed
by this Court. However, this Court is still obliged to consider the
plea of juvenility taken by the writ applicant and grant him
appropriate relief. The fact that the 2000 Act has later been
G replaced by the 2015 Act would make no difference. [Para 43][872-
C-D]
1.6 In deciding whether an accused is juvenile or not, a
hyper technical approach should not be adopted. While
H
VINOD KATARA v. STATE OF UTTAR PRADESH 839
appreciating the evidence adduced on behalf of the accused in A
support of the plea that he is a juvenile, if two views are possible
on the same evidence, the Court should lean in favour of holding
the accused to be juvenile in borderline cases. The inquiry
contemplated is not a roving inquiry. The Court can accept as
evidence something more than an affidavit i.e. documents,
B
certificates etc. as evidence in proof of age. It is the documentary
evidence placed on record that plays a major role in determining
the age of a juvenile in conflict of law. And, it is only in the cases
where the documents or certificates placed on record by the
accused in support of his claim of juvenility are found to be
fabricated or manipulated, that the Court, the Juvenile Justice C
Board or the Committee need to go for medical test for age
determination. [Para 45][876-D-G]
Ashwani Kumar Saxena v. State of Mahya Pradesh, AIR
2013 SC 553 : [2012] 10 SCR 540 – relied on.
1.7 In the instant case, the accused has not produced any D
matriculation certificate or equivalent certificate to prove his age.
What is produced by him is only the Family Register issued under
the U.P. Panchayat Raj Act, 1947. The document cannot be
accepted as equivalent to matriculation certificate to prove the
age of the accused. However, the evidentiary value of the Family E
Register will have to be looked into in the course of the inquiry
that this Court may order. [Para 48][877-D-E]
1.8 Ideally, there should not be any dispute as to the age of
a person if the birth is registered in accordance with law and date
of birth is entered in the school records on the basis of genuine F
record of birth. However, in India, the factors like poverty,
illiteracy, ignorance, indifference and inadequacy of the system
often lead to there being no documentary proof of a person’s
age. Therefore, in those cases where the plea of juvenility is raised
at a belated stage, often certain medical tests are resorted to
forage determination in absence of the documents enumerated G
in Section 94 of the Act 2015. The rule allowing plea of juvenility
to be raised at a considerably belated stage has its rationale in
the contemporary child rights jurisprudence which requires the
stakeholders to act in the best interest of the child. [Para 49][877-
F-G] H
840 SUPREME COURT REPORTS [2022] 9 S.C.R.
A 1.9 The bone ossification test is a test that determines age
based on the “degree of fusion of bone” by taking the x-ray of a
few bones. In simple words, the ossification test or osteogenesis
is the process of the bone formation based on the fusion of joints
between the birth and age of twenty-five years in an individual.
Bone age is an indicator of the skeletal and biological maturity of
B
an individual which assists in the determination of age. The most
common method used for the calculation of the bone age is
radiography of the hand and wrist until the age of 18 years beyond
which the medial age of clavicle is used for bone age calculation
till the age of 22 years as the hand and wrist bone radiographs
C cannot be computed beyond 18 years of age as the elongation of
the bone is complete after adolescence. However, it must be noted
that the ossification test varies slightly based on individual
characteristics, therefore the ossification test though is relevant
however it cannot be called solely conclusive. [Para 55][879-B-
D]
D
1.10 The 2015 Act under Section 94(2)(iii) read with Rule
12(3) of the 2007 Rules provides the legislative sanction for the
conduct of ossification test or other medical age determination
test available in the absence of other documentary proof of age
i.e. matriculation certificate or birth certificate, which has to be
E given within 15 days from the date of such order. The test is to
be conducted by the Child Welfare Committee (CWC). The
provision mentioned is the basis for determining the age of a
child under the 2000 Act which even includes a child who is a
victim of crime in addition to a child in conflict with the law. [Para
F 56][879-D-F]
1.11 The bone ossification test is not an exact science that
can provide with the exact age of the person. The individual
characteristics such as the growth rate of bones and skeletal
structures can affect the accuracy of this method. [Para 58][880-
G A-B]
1.12 In the case on hand the convict was subjected to
medical examination after being referred to the Medical Board.
However, the report on record does not inspire much confidence.
Over and above the same, the decision in the case of Ram Vijay
H Singh’s case makes it very clear that in the absence of a reliable
VINOD KATARA v. STATE OF UTTAR PRADESH 841
and trustworthy medical evidence to find out the age of the A
appellant, the ossification test conducted in the year 2021 when
the appellant was above 50 years of age cannot be conclusive to
declare him as a juvenile on the date of the incident. This Court
observed that when a person is around 18 years of age, the
ossification test can be said to be relevant for determining the
B
approximate age of a person in conflict with law. However, when
the person is around 40-55 years of age, the structure of bones
cannot be helpful in determining the age. In such circumstances,
it will be a matter of debate as to what extent the new ossification
test report that may come on record can be relied upon and to
what extent the same would be helpful to the appellant herein. C
Despite all the odds against the writ applicant, this Court would
still like to look into the matter in the larger interest of justice. It
will be in fitness of things if the writ applicant convict is once
again subjected to the ossification test at the Civil Hospital or
any other latest medical age determination test and such test
D
shall be carried out by a team of three doctors, one of whom
should be the head of the Department of Radiology. [Paras 63,
64][882-D-H; 883-A]
1.13 In view thereof, the Sessions Court is directed to
examine the claim of the writ applicant to juvenility in regard
with law within one month from the date of communication of this E
order; the concerned Sessions Court shall also examine the
authenticity and genuineness of the Family Register sought to
be relied upon by writ applicant convict considering that the
document does not appear to be contemporaneous. This
document assumes importance, more particularly in the light of F
the fact that the ossification test report may not be absolutely
helpful in determining the exact age of the writ applicant on the
date of incident. If the Family Register on record is ultimately
found to be authentic and genuine, then this Court may not have
to fall upon the ossification test report. In such circumstances,
the Presiding Officer concerned shall pay adequate attention G
towards this document and try to ascertain the authenticity and
genuineness of the same. If need be, the statements of the
persons concerned i.e. from the concerned government
department may also be recorded; the Sessions Court shall
ensure that the writ applicant convict is medically examined by H
842 SUPREME COURT REPORTS [2022] 9 S.C.R.
A taking an ossification test or any other modern recognized method
of age determination; and the Sessions Court concerned shall
submit its report as regards the aforesaid to this Court within
the stipulated period. [Para 65][883-B-F]
Abuzar Hossain ALIAS Gulam Hossain v. State of West
B Bengal reported in (2012) 10 SCC 489 : [2012] 9 SCR
244; Ashok v. State of Madhya Pradesh; Pratap Singh
v. State of Jharkhand, (2005) 3 SCC 551 : [2005] 1
SCR 1019; Shah Nawaz v. State of Uttar Pradesh,
(2011) 13 SCC 751 : [2011] 9 SCR 859; Arnit Das v.
State of Bihar, (2000) 5 SCC 488 : [2000] 1 Suppl.
C SCR 69; Bijender Singh v. State of Haryana (2005) 3
SCC 685; Dharambir v. State (NCT of Delhi), (2010) 5
SCC 344 : [2010] 5 SCR 137; Kalu v. State of Haryana,
(2012) 8 SCC 34 : 2012 (7) JT 417; Manoj v. State of
Haryana, reported in (2022) 6 SCC 187 : 2022 (6) JT
D 547; Vishnu v. State of Maharashtra, (2006) 1 SCC 283
: [2005] 5 Suppl. SCR 474; Madan Gopal Kakkad v.
Naval Dubey, (1992) 3 SCC 204 : [1992] 2 SCR 921;
Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681
: (2010) 2 SCC (Cri) 1194; Jyoti Prakash Rai v. State
of Bihar, (2008) 15 SCC 223 : (2009) 3 SCC (Cri) 796;
E Mukarrab v. State of Uttar Pradesh, reported in (2017)
2 SCC 210 : [2016] 8 SCR 557; Rajendra Chandra v.
State of Chhattisgarh, (2002) 2 SCC 287 : 2002 (1) JT
265; Rishipal Singh Solanki v. State of Uttar Pradesh,
(2021) SCC OnLine SC 1079; Court On Its Own
F Motion v. Dept. of Women and Child Development,
reported in 2012 SCC OnLine Del 2774; Ram Vijay
Singh v. State of U.P., (2021) SCC Online SC 142-
referred to.
Case Law Reference
G [2012] 9 SCR 244 referred to Para 11
[2005] 1 SCR 1019 referred to Para 21
[2005] 2 SCR 1131 referred to Para 22
H
VINOD KATARA v. STATE OF UTTAR PRADESH 843
[2010] 5 SCR 137 referred to Para 23 A
(2012) 8 SCC 34 referred to Para 24
[2012] 10 SCR 540 relied on Para 45
[2011] 9 SCR 859 relied on Para 47
[2005] 5 Suppl. SCR 474 referred to Para 57 B
[1992] 2 SCR 921 referred to Para 57
[2016] 8 SCR 557 referred to Para 59
[2000] 1 Suppl. SCR 69 relied on Para 60
C
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 121 of 2022.
Under Article 32 of The Constitution of India
Rishi Malhotra, Jaydip Patil, Advs. for the Appellant.
Andhendumauli Kr. Prasad, AAG, Vishnu Shankar Jain, D
Ms. Shreya Srivastava, Ashish Madaan, Ms. Ananya S., Advs. for the
Respondent.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
E
1. Personal liberty of a person is one of the oldest concepts to be
purported by national courts. As long ago as in 1215, the English Magna
Carta provided that:-
“No free man shall be taken or imprisoned.... but..... by law
of the land.” F
2. Today, the concept of personal liberty has received a far more
expansive interpretation. The notion that is accepted today is that liberty
encompasses these rights and privileges which have long been recognized
as being essential to the orderly pursuit of happiness by a free man and
not merely freedom from bodily restraint. There can be no cavil in saying G
that lodging juveniles in adult prisons amounts to deprivation of their
personal liberty on multiple aspects.
3. This Writ Application under Article 32 of the Constitution is at
the instance of a convict accused undergoing life imprisonment for the
offence of murder seeking appropriate directions to the respondent State H
844 SUPREME COURT REPORTS [2022] 9 S.C.R.
A of Uttar Pradesh to verify the exact age of the convict on the date of
the commission of the offence as it is the case of the convict that on the
date of the commission of the offence i.e. 10.09.1982 he was a juvenile
aged around 15 years.
4. The facts giving rise to this litigation may be summarized as
B under:
(a) The writ applicant along with other co-accused persons was
put to trial for the offence punishable under Section 302 r/w 34 of
the IPC;
(b) The 5th Additional Sessions Judge, Agra in the sessions trial
C No. 535 of 1983 arising from the case crime no. 126 of 1982
registered with the Fatehpur Sikri District, Agra held the writ
applicant herein and the co-accused persons guilty of the offence
of murder and sentenced them to life imprisonment;
(c) The writ applicant herein and the other convicts went in appeal
D before the Allahabad High Court by filing the Cr. Appeal No. 133
of 1986 questioning the legality and validity of the judgment &
order of conviction passed by the trial court dated 06.01.1986;
(d) The appeal was heard by the High Court and vide judgment
and order dated 04.03.2016 came to be dismissed thereby
E affirming the judgment and order of conviction passed by the
trial court;
(e) The writ applicant herein dissatisfied with the order passed by
the High Court dismissing his appeal, referred to above, came
before this Court by filing application for Special Leave to Appeal
F (Crl.) No. 6048 of 2016. This Court vide order dated 16.08.2016
declined to grant leave as prayed for and dismissed the Special
Leave Petition.
5. It may not be out of the place to state at this stage that till this
Court dismissed the Special Leave Petition vide the order dated 16.08.2016,
G the writ applicant herein had not raised the question of him being a juvenile
on the date of the commission of the alleged offence on 10.09.1982.
6. It appears that while the writ applicant was undergoing sentence
of life imprisonment, he was subjected to medical examination by the
Medical Board constituted by the respondent State in pursuance of the
H judgment rendered by a Division Bench of the Allahabad High Court in
VINOD KATARA v. STATE OF UTTAR PRADESH 845
[J. B. PARDIWALA, J.]
the Criminal Writ Public Interest Litigation No. 855 of 2012, wherein the A
Division Bench of the Allahabad High Court observed as under:
“Admittedly, as per the State’s earlier affidavits, it was claimed
that there were 72 prisoners, who may have been below 18
years in age and who are detained in the various district or
Central jails. Their break up was as follows: B
There were 23 such prisoners in Bareilly, 1 in Lucknow, 4
in Allahabad, 2 in Etawah, 18 in Agra and 23 in
Fatehgarh. One such prisoner Raju, who belonged to
Faizabad, whose age was determined to be below 18 years
by the Principal Magistrate, Juvenile Justice Board was C
sent to Special Home after having been detained for a long
time in Faizabad jail.
Prima facie there appears to be some material for suggesting
that such prisoners, may have been below 18 years on the
date of commission of the offences. After the modification of D
the Juvenile Justice (Care and Protection of Children) Act,
2000, (hereafter the Act) by Act No. 33 of 2006, under section
2 (l) a juvenile in conflict with law means a juvenile who is
alleged to have committed an offence and has not completed
eighteen years of age as on the date of commission of such
offence. E
Under the proviso to section 7A (1) of the Act, it is mentioned
that a claim of juvenility may be raised before any court and
it shall be recognised at any stage, even after the final disposal
of the case, and such claim shall be determined in terms of
the provisions contained in this Act and the Juvenile Justice F
(Care and Protection of Children) Rules, 2007 (hereinafter
the Rules).
We, therefore, direct the District Judges, who are Chairpersons
of their respective Legal Services Authorities to directly
oversee that efficient lawyers are appointed for the purpose G
of providing legal aid to the prisoners, (who are unable to
engage private lawyers) who have been mentioned in the list
furnished by the State Government and described to be below
18 years in age on the date of commission of offence. The
said legal aid lawyers should get the ages of the prisoners
H
846 SUPREME COURT REPORTS [2022] 9 S.C.R.
A ascertained by obtaining documents and carrying out the
other measures provided under Rule 12 of the Juvenile Justice
Act and Rules and also on the lines suggested by the Delhi
High Court in WP (C) No. 8889 of 2011 (Court on its own
motion vs. Department of Women and Child Development and
others) in its order dated 11.5.2012. Obtaining information
B
about the probable date of birth of other siblings can also
be taken into account for ascertaining the true age of these
prisoners. The legal aid lawyers may also find out whether
there are other prisoners in jail, who may be below 18 years
of age on the date of commission of the offence and who
C appear to be wrongly lodged in the regular prisons for adults
and the bases for their conclusions.
Thereafter the matter may be placed before the Principal
Judge, Juvenile Justice Board for determining of the ages as
per the criteria set out above.
D The prosecution and the complainant will also of course be
given an opportunity to examine their own witnesses and to
cross-examine the witnesses, who have been got examined on
behalf of the accused and for that purpose notices of the
proceedings before the JJ Board shall be served on the
E complainant/ prosecution. As it is possible that in some cases
the prisoners mentioned in the State’s list may indeed be below
18 years in age on the date of offence, but as the basis for
arrival at the conclusion in the State’s list were usually some
preliminary medical examinations and no detailed steps for
ascertaining ages had been taken after hearing both parties,
F and it cannot be ruled out that in certain cases extraneous
measures may have been used for reducing the ages, we think
that such an exercise as detailed above wherein the ages are
ascertained after hearing both parties was needed. The said
exercise is to be competed within a period of two months and
G the reports submitted to this Court on its next listing.
The District Judges/District Legal Services Authorities shall
take strict measures in future for ensuring that prisoners below
18 years of age on the date of offence are not lodged in
adults prisons in violation of the Juvenile Justice Act and Rules.
H
VINOD KATARA v. STATE OF UTTAR PRADESH 847
[J. B. PARDIWALA, J.]
So far as district Allahabad is concerned, we direct the District A
Judge, Allahabad to permit Sister Sheeba Jose, Advocate and
Shri Rohan Gupta, Advocate to visit and interview the
concerned prisoners for the purpose of ascertaining their ages
and for submitting the report to the Court on the next date of
listing.
B
It was further submitted by the learned counsel for the
petitioner that so far as the prisoner Raju is concerned, whose
age was determined to be below 18 years, he was earlier
lodged in Faizabad jail and was subsequently sent to the
Special Home. As he was convicted as far back as in the
year 2001 in a case under section 302 IPC. The respondents C
should inform this Court about the total period spent in jail
by this prisoner and in case it exceeds 3 years (which was
the maximum permissible sentence in view of section 15 of the
Act) the basis for his being presently detained in the Special
Home.” D
Thus, vide the order dated 24.05.2012 referred to above passed
in a Public Interest Litigation being Criminal (PIL) Misc. W.P. No. 855
of 2012, the Allahabad High Court directed the Juvenile Justice Boards
to hold an enquiry for determination of the age of prisoners languishing
in jails who claimed to have been juveniles in conflict with the law. E
7. The Medical Board subjected the writ applicant herein to the
X-rays of the skull and sternum. Upon medical examination of the writ
applicant herein, the Medical Board gave its report dated 10.12.2021
certifying that on 10.09.1982 i.e. the date of the commission of the alleged
offence, the writ applicant could have been around 15 years of age as on F
the date of the medical examination, the convict was around 56 years of
age.
8. It appears that sometime later, the writ applicant was in a position
to obtain a document in the form of Family Register dated 02.03.2021
issued under the U.P. Panchayat Raj (Maintenance of Family Registers) G
Rules, 1970. In the Family Register certificate, the year of birth of the
writ applicant herein is shown as 1968. If 1968 is the correct birth year
of the writ applicant herein, then in 1982 he was about 14 years of age.
9. In such circumstances referred to above, the writ applicant is
here before this Court. He claims that as he was a juvenile on the date
H
848 SUPREME COURT REPORTS [2022] 9 S.C.R.
A of the commission of the alleged offence sometime in the year 1982, he
could not have been put to trial along with other co- accused and should
have been dealt with under the provisions of the Juvenile Justice Act as
prevailing at the relevant point of time. It is the prayer of the writ applicant
that the respondent State be directed to get the claim of the writ applicant
in regard to the juvenility verified through the concerned Sessions Court
B
or the Juvenile Justice Board.
Submissions on behalf of the writ applicant convict:
10. Mr. Rishi Malhotra, the learned counsel appearing for the writ
applicant vehemently submitted that although till the dismissal of the
C Special Leave Petition (Criminal) No. 6048 od 2016 by this Court vide
order dated 16.08.2016, the convict had not raised the plea of juvenility,
yet the law permits him to raise such a plea even at this point of time
having regard to the provisions of the Juvenile Justice (Care and Protection
of Children) Amendment Act, 2011. It is submitted that there is clinching
evidence on record as on date in the form of certificate issued by the
D Medical Board as well as the Family Register to indicate that in the year
1982 the writ applicant could be around 15 years of age. The learned
counsel would vehemently submit that there is no good ground to discard
the certificate issued by the Medical Board as well as the extract of the
Family Register.
E 11. To fortify the aforesaid submissions, the learned counsel seeks
to rely upon a three-Judge Bench decision of this Court in the case of
Abuzar Hossain ALIAS Gulam Hossain v. State of West Bengal
reported in (2012) 10 SCC 489.
12. In such circumstances referred to above, the learned counsel
F prays that there being merit in his writ petition, the same may be allowed
and appropriate directions may be issued to do complete justice in the
matter.
Submissions on behalf of the State
13. Mr. Ardhendhumauli Kr. Prasad, the learned Additional
G
Advocate General appearing for the State, on the other hand, has
vehemently opposed the present writ application. The learned counsel
would submit that the Family Register is not admissible in evidence and
the entries made therein are not decisive to determine the age. It is
argued that the writ applicant has not placed on record any document of
H
VINOD KATARA v. STATE OF UTTAR PRADESH 849
[J. B. PARDIWALA, J.]
any educational institution. It is also argued that no ossification test was A
undertaken or no modern recognized method was adopted for the
purpose of determination of age.
14. The learned counsel appearing for the State invited the attention
of this Court towards the order passed by a Coordinate Bench of this
Court in the case of Ashok v. State of Madhya Pradesh, Special Leave B
to Appeal (Criminal) No. 643 of 2020 dated 29.11.2021. The order passed
by the Coordinate Bench referred to above reads thus:-
“By a judgment and order dated 29.07.1999, the Additional
Sessions Judge, Gohad, District Bhind, Madhya Pradesh,
convicted the petitioner inter alia for offence under Section C
302 of the Indian Penal Code and sentenced him inter alia to
life imprisonment in Sessions Trial No. 260 of 1997. In the
cause title of the said judgment and order, the petitioner has
been described as Ashok, S/o Balram Jatab age 16 yrs 9
months and 19 days, R/o Village Anjani Pura, District Bhind.
D
The petitioner filed an appeal being Criminal Appeal No. 455
of 1999 challenging his conviction and sentence. The said
criminal appeal has been dismissed by the High Court by an
order dated 14.11.2017, which is impugned in the Special
Leave Petition (Crl.) No. 643 of 2020, filed by the petitioner.
The incident which led to the conviction of the petitioner, took E
place on 26.07.1997.
The petitioner claims that the petitioner was born on
05.01.1981. The petitioner was, therefore, approximately
16 years and 7 months old on the date of the incident. In
this Court, the petitioner has for the first time contended that F
he was a juvenile on the date of the incident. His conviction
and sentence are, therefore, liable to be set- aside. The claim
of juvenility was not raised in the High Court. The learned
Additional Advocate General, appearing on behalf of the State
argued that the claim of juvenility has been raised for the G
first time in this special leave petition. The Juvenile Justice
Act, 1986, which was in force on the date of commission of
the offence as also the date of the judgment and order of
conviction and sentence by the Sessions Court was repealed
by the Juvenile Justice (Care and Protection of Children) Act,
H
850 SUPREME COURT REPORTS [2022] 9 S.C.R.
A 2000. The Act of 2000 received the assent of the President of
India on 30.12.2000 and came into force on 01.04.2001. The
Act of 2000 defined juvenile in conflict with the law to mean a
juvenile, who was alleged to have committed an offence and
had not completed 18th year of age as on the date of
commission of such an offence.
B
Under the 1986 Act, the age of juvenility was up to the 16th
year. Section 7A of the 2000 Act as inserted by Act 33 of
2006 with effect from 22.08.2006 provided as follows:-
“7A. Procedure to be followed when claim of juvenility is
C 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
D 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
E 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),
F it shall forward the juvenile to the Board for passing
appropriate orders and the sentence, if any, passed by a
court shall be deemed to have no effect.”
The claim of juvenility can thus be raised before any Court,
at any stage, even after final disposal of the case and if the
G Court finds a person to be a juvenile on the date of commission
of the offence, it is to forward the juvenile to the Board for
passing appropriate orders, and the sentence, if any, passed
by a Court, shall be deemed to have no effect. Even though
the offence in this case may have been committed before the
enactment of the Act of 2000, the petitioner is entitled to the
H
VINOD KATARA v. STATE OF UTTAR PRADESH 851
[J. B. PARDIWALA, J.]
benefit of juvenility under Section 7A of the Act of 2000, if on A
inquiry it is found that he was less than 18 years of age on
the date of the alleged offence.
It is true as pointed out by the learned Additional Advocate
General appearing on behalf of the State that the certificate
of Akikrit Shash, High School School Endouri, District Bhind, B
Madhya Pradesh relied upon by the petitioner is stated to
have been issued on 17.07.2021. The said certificate does
not specifically mention that the date of birth 01.01.1982 had
been entered at the time of first admission of the petitioner at
the primary school level.
C
Furthermore, there is a birth certificate issued by the Gram
Panchayat, Endouri, District Bhind, Madhya Pradesh which
indicates the date of birth of the petitioner as 05.01.1982 and
not 01.01.1982 as recorded in the school certificate referred
to above.
D
The entry in the records of the Gram Panchayat, Endouri,
District Bhind, Madhya Pradesh, also do not appear to be
contemporaneous and the certificate has been issued in the
year 2017.
However, as pointed out by Mr. M.P. Parthiban, learned E
counsel appearing on behalf of the petitioner that the Sessions
Court has recorded the age of the petitioner as 16 years, 9
months and 19 days. The petitioner has been in actual custody
for over three years.
The 2000 Act has been repealed and replaced by the Juvenile F
Justice (Care and Protection of Children) Act, 2015. Section
21 of the 2015 Act provides as follows:
“21. Order that may not be passed against a child in conflict
with law. – No child in conflict with law shall be sentenced
to death or for life imprisonment without the possibility of
G
release, for any such offence, either under the provisions
of this Act or under the provisions of the Indian Penal
Code or any other law for the time being in force.”
Considering that the Trial Court has recorded the age of the
petitioner as 16 years and odd, and has been in actual custody
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852 SUPREME COURT REPORTS [2022] 9 S.C.R.
A in excess of three years, which is the maximum for a juvenile,
we deem it appropriate to grant the petitioner interim bail on
such terms and conditions as may be imposed by the Sessions
Court. We further direct the Sessions Court to examine the
claim of the petitioner to juvenility in accordance with law,
and submit a report to this Court within one month from the
B
date of communication of this order.
The concerned Sessions Court shall be entitled to examine
the authenticity and genuineness of the documents sought to
be relied upon by the petitioner, considering that the
documents do not appear to be contemporaneous.
C
In the event the documents are found to be questionable/
unreliable, it will be open to the Sessions Court to have the
petitioner medically examined by taking an ossification test
or any other modern recognized method of age determination.”
D 15. The aforesaid order passed by the Coordinate Bench has been
relied upon by the learned counsel appearing for the State to fortify his
submission that if at all the issue in regard to the juvenility of the writ
applicant requires consideration, the same should be by the Sessions
Court i.e. the Court which had originally tried the writ applicant for the
alleged offence.
E
16. In such circumstances referred to above, the learned counsel
appearing for the State prays that let the Sessions Court look into the
certificate issued by the Medical Board including the Family Register
more particularly its authenticity and genuineness.
F Analysis:
17. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question that
falls for our consideration is that whether we should ask the Sessions
Court to examine the authenticity and genuineness of the documents
sought to be relied upon by the writ applicant in support of his plea of
G
being a juvenile on the date of the commission of the alleged offence in
the year 1982 and also subject the convict to further ossification test?
18. The first and the foremost issue that arises for our consideration
in this writ petition is in regard to the applicability of the provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2000 (for short,
H “the 2000 Act”).
VINOD KATARA v. STATE OF UTTAR PRADESH 853
[J. B. PARDIWALA, J.]
19. In the aforesaid context, we must first look into the relevant A
dates as follows:-
(a) The date of the incident is 10.09.1982. Thus, on the date of
incident even the Juvenile Justice Act, 1986 was not in force.
What was in force was the Children Act, 1960. The Children
Act, 1960 was a beneficial legislation enacted to take care of B
the delinquent and neglected children. Under the said Act, a
child meant a person who had not attained the age of 16 years
in the case of a boy or 18 years in the case of a girl.
(b) The petitioner herein came to be convicted by the trial court
vide judgment and order dated 06.01.1986. Even on the date C
of conviction, the Juvenile Justice Act, 1986 was not in force.
The Juvenile Justice Act, 1986 came in force with effect from
01.12.1986. Thus, even on the date of conviction, the Children
Act, 1960 governed the field.
(c) The appeal filed by the petitioner herein in the High Court of D
Allahabad against the judgment and order of conviction passed
by the trial court came to be decided and was ordered to be
dismissed vide judgment and order dated 04.03.2016. It is
relevant to note that on the date when the appeal came to be
dismissed by the High Court, the 2000 Act was in force.
E
(d) Special Leave to Appeal (Crl.) No. 6048 of 2016 filed by the
petitioner herein in this Court came to be dismissed vide order
dated 16.08.2016.
20. On and with effect from 15.01.2016, the Juvenile Justice (Care
and Protection of Children) Act, 2015 (for short, “the 2015 Act”) came F
into force which repealed the 2000 Act. While the appeal of the petitioner
herein against his conviction and sentence was pending in the High
Court, the 2000 Act came into force which repealed the Juvenile Justice
Act, 1986. The 2000 Act inter alia raised the age of juvenility from 16
to 18 years and in terms of Section 20 of the 2000 Act, the determination
of juvenility was required to be done in all pending matters in accordance G
with Section 2(1) of the 2000 Act.
21. The effect of Section 20 of the 2000 Act was considered
in Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551, and it was
stated as under:-
H
854 SUPREME COURT REPORTS [2022] 9 S.C.R.
A “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 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 came into force” has
great significance. The proceedings in respect of a juvenile pending
B
in any court referred to in Section 20 of the Act are relatable to
proceedings initiated before the 2000 Act came into force 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
C not be pending in criminal courts. They would be pending in criminal
courts only if the boy 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 passed and
D
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.”
22. In Bijender Singh v. State of Haryana, (2005) 3 SCC 685,
E the legal position as regards Section 20 was stated in following words:-
“8. One of the basic distinctions between the 1986 Act and the
2000 Act relates to the age of males and females. Under the 1986
Act, a juvenile means a male juvenile who has not attained the
age of 16 years, and a female juvenile who has not attained the
F age of 18 years. In the 2000 Act, the distinction between male and
female juveniles on the basis of age has not been maintained.
The age-limit is 18 years for both males and females.
9. A person above 16 years in terms of the 1986 Act was not a
juvenile. In that view of the matter the question whether a person
G above 16 years becomes “juvenile” within the purview of the 2000
Act must be answered having regard to the object and purport
thereof.
10. In terms of the 1986 Act, a person who was not juvenile could
be tried in any court. Section 20 of the 2000 Act takes care of
H
VINOD KATARA v. STATE OF UTTAR PRADESH 855
[J. B. PARDIWALA, J.]
such a situation stating that despite the same the trial shall continue A
in that court as if that Act has not been passed and in the event,
he is found to be guilty of commission of an offence, a finding to
that effect shall be recorded in the judgment of conviction, if any,
but instead of passing any sentence in relation to the juvenile, he
would be forwarded to the Juvenile Justice Board (in short “the
B
Board”) which shall pass orders in accordance with the provisions
of the Act as if it has been satisfied on inquiry that a juvenile has
committed the offence. A legal fiction has, thus, been created in
the said provision. A legal fiction as is well known must be given
its full effect although it has its limitations. …………
11. …………. C
12. Thus, by reason of legal fiction, a person, although not a
juvenile, has to be treated to be one by the Board for the purpose
of sentencing, which takes care of a situation that the person
although not a juvenile in terms of the 1986 Act but still would be
treated as such under the 2000 Act for the said limited purpose.” D
23. In Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344,
the determination of juvenility even after conviction was one of the issues
and it was stated:-
“11. It is plain from the language of the Explanation to Section 20 E
that in all pending cases, which would include not only trials but
even subsequent proceedings by way of revision or appeal, etc.,
the determination of juvenility of a juvenile has to be in terms of
clause (l) of Section 2, even if the juvenile ceases to be a juvenile
on or before 1-4-2001, when the Act of 2000 came into force, and
the provisions of the Act would apply as if the said provision had F
been in force for all purposes and for all material times when the
alleged offence was committed.
12. Clause (l) of Section 2 of the Act of 2000 provides that “juvenile
in conflict with law” means a “juvenile” who is alleged to have
committed an offence and has not completed eighteenth year of G
age as on the date of commission of such offence. Section 20
also enables the court to consider and determine the juvenility of
a person even after conviction by the regular court and also
empowers the court, while maintaining the conviction, to set aside
the sentence imposed and forward the case to the Juvenile Justice
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856 SUPREME COURT REPORTS [2022] 9 S.C.R.
A Board concerned for passing sentence in accordance with the
provisions of the Act of 2000.”
24. Similarly, in Kalu v. State of Haryana, (2012) 8 SCC 34, this
Court summed up as under:-
“21. Section 20 makes a special provision in respect of pending
B cases. It states that notwithstanding anything contained in the
Juvenile Act, all proceedings in respect of a juvenile pending in
any court in any area on the date on which the Juvenile Act comes
into force in that area shall be continued in that court as if the
Juvenile Act had not been passed and if the court finds that the
C 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 the Juvenile Act
as if it had been satisfied on inquiry under the Juvenile Act that the
juvenile has committed the offence. The Explanation to Section
D 20 makes it clear that in all pending cases, which would include
not only trials but even subsequent proceedings by way of revision
or appeal, the determination of juvenility of a juvenile would be in
terms of clause (l) of Section 2, even if the juvenile ceased to be a
juvenile on or before 1-4-2001, when the Juvenile Act came into
E force, and the provisions of the Juvenile Act would apply as if the
said provision had been in force for all purposes and for all material
times when the alleged offence was committed.”
25. It is thus well settled that in terms of Section 20 of the 2000
Act, in all cases where the accused was above 16 years but below 18
F years of age on the date of occurrence, the proceedings pending in the
Court would continue and be taken to the logical end subject to an
exception that upon finding the juvenile to be guilty, the Court would not
pass an order of sentence against him but the juvenile would be referred
to the Board for appropriate orders under the 2000 Act.
G 26. Thus, in view of the aforesaid discussion, we now proceed to
consider the matter further keeping in view the 2000 Act.
27. Section 7A of the 2000 Act reads as under:
“7A. Procedure to be followed when claim of juvenility is
raised before any Court-
H
VINOD KATARA v. STATE OF UTTAR PRADESH 857
[J. B. PARDIWALA, J.]
(1) Whenever a claim of juvenility is raised before any court A
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
B
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 C
or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of
commission of the offence under sub-section (1), it shall
forward the juvenile to the Board for passing appropriate
orders and the sentence, if any, passed by a court shall be D
deemed to have no effect.”
28. From a reading of Section 7A what becomes very obvious is
that whenever a claim of juvenility is raised, an inquiry has to be made
and such inquiry would take place by receiving evidence which would be
necessary but not an affidavit so as to determine the age of such person. E
29. Reference is also required to be made to Chapter II of the
Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short
“the 2007 Rules”), more particularly to Rule 3(1) and Principles II, IV,
XI, XII, XIII & XIV enumerated in Rule 3(2). The said provisions and
principles are extracted herein below- F
“3. Fundamental principles to be followed in administration
of these rules.—
(1) The State Government, the Juvenile Justice Board, the Child
Welfare Committee or other competent authorities or agencies,
G
as the case may be, while
(2) The following principles shall, inter alia, be fundamental
to the application, interpretation and implementation of the
Act and the rules made hereunder:
x x x x x H
858 SUPREME COURT REPORTS [2022] 9 S.C.R.
A II. Principle of dignity and worth
(a) Treatment that is consistent with the Child’s sense of dignity
and worth is a fundamental principle of juvenile justice. This
principle reflects the fundamental human right enshrined in
Article I of the Universal Declaration of Human Rights that
B all human beings are born free and equal in dignity and rights.
Respect of dignity includes not being humiliated, personal
identity boundaries and space being respected, not being
labeled and stigmatized, being offered information and
choices and not being blamed for their acts.
C (b) The juvenile’s or Child’s right to dignity and worth has to
be respected and protected throughout the entire process of
dealing with the child from the first contact with law
enforcement agencies to the implementing of all measures for
dealing with the child.
D III. Principle of Right to be heard
Every child’s right to express his views freely in all matters
affecting his interest shall be fully respected through every
stage in the process of juvenile justice. Children’s right to be
heard shall include creation of developmentally appropriate
E tools and processes of interacting with the child, promoting
Children’s active involvement in decisions regarding their own
lives and providing opportunities for discussion and debate.
IV. Principle of Best Interest
(a) In all decisions taken within the context of administration
F of juvenile justice, the principle of best interest of the juvenile
or the juvenile in conflict with law or child shall be the primary
consideration.
(b) The principle of best interest of the juvenile or juvenile
in conflict with law or child shall mean for instance that the
G traditional objectives of criminal justice, retribution and
repression, must give way to rehabilitative and restorative
objectives of juvenile justice.
(c) This principle seeks to ensure physical, emotional,
intellectual, social and moral development of a juvenile in
H
VINOD KATARA v. STATE OF UTTAR PRADESH 859
[J. B. PARDIWALA, J.]
conflict with law or child so as to ensure the safety, well being A
and permanence for each child and thus enable each child to
survive and reach his or her full potential.
x x x x x
XI. Principle of right to privacy and confidentiality
B
The juvenile’s or Child’s right to privacy and confidentiality
shall be protected by all means and through all the stages of
the proceedings ad care and protection processes.
XII. Principle of last resort
Institutionalization of a child or juvenile in conflict with law C
shall be a step of the last resort after reasonable inquiry and
that too for the minimum possible duration.
XIII. Principle of repatriation and restoration
(a) Every juvenile or child in conflict with law has the right
D
to be re-united with his family and restored back to the same
socio-economic cultural status that such juvenile or child
enjoyed before coming within the purview of the Act or
becoming vulnerable to any form of neglect, abuse or
exploitation.
(b) Any juvenile or child, who has lost contact with his family, E
shall be eligible for protection under the Act and shall be
repatriated and restored, at the earliest, to his family, unless
such repatriation and restoration is likely to be against the
best interest of the juvenile or the child.
XIV. Principle of Fresh Start F
(a) The principle of fresh start promotes new beginning for
the child or juvenile in conflict with law by ensuring erasure
of his part records.
(b) The State shall seek to promote measures for dealing with G
children alleged or recognized as having impinged the penal
law, without resorting to juridical proceedings.”
b. It is submitted that Section 51 of the Act provides that the
report of a probation officer or a social worker shall be
confidential. It is further submitted that Rule 18 provides for
H
860 SUPREME COURT REPORTS [2022] 9 S.C.R.
A a procedure to be followed in respect of violation of Section
21.”
30. Besides the International Convention and the provisions of the
2000 Act resply, it may be noted that the Constitutional guarantee for
the protection of the child is enshrined in Article 39 of the Constitution.
B Article 39 reads as under:-
“39. Certain principles of policy to be followed by the State-
(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
C 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
D abandonment.”
31. The procedure to be followed for the determination of age is
provided under Rule 12(3)(b) of the 2007 Rules, which reads as:
“12. Procedure to be followed in determination of age.—(3)
In every case concerning a child or juvenile in conflict with
E
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;
F
(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;
G (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
H case may be, the Committee, for the reasons to be recorded
VINOD KATARA v. STATE OF UTTAR PRADESH 861
[J. B. PARDIWALA, J.]
by them, may, if considered necessary, give benefit to the A
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 B
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.”
32. Sub-clause (3) of the aforesaid Rule clearly mandates that C
while conducting an inquiry about the juvenility of an accused, the Juvenile
Justice Board would seek evidence by obtaining the matriculation or
equivalent certificates and in the absence whereof the date of birth
certificate from the school first attended and in absence whereof the
birth certificate given by a corporation or a Municipal authority or a
Panchayat. It is made clear by sub-clause (b) that only in the absence D
of the aforesaid three documents, medical information would be sought
from a duly constituted Medical Board which will declare the age of the
juvenile or child. Thus, it is only in the absence of the aforesaid documents
that the Juvenile Justice Board could have asked for medical information/
ossification test. E
33. The 2000 Act stands repealed by the 2015 Act. The procedure
for determining the age is now part of Section 94 of the 2015 Act
which was earlier provided under the abovementioned Rule 12 of the
Rules.
Family Register F
34. The Family Register Rules prescribes preparation of a Family
Register in the State of Uttar Pradesh which contains family-wise names
and particulars of all persons ordinarily residing in the village pertaining
to the Gaon Sabha. Such Rules have been framed under Section 110 of
the U.P. Panchayat Raj Act, 1947. Such Rules read as under: G
“1. (1) These Rules may be called the U.P. Panchayat Raj
(Maintenance of Family Registers) Rules, 1970.
2. Form and preparation of family register.—A family register
in form A shall be prepared containing family-wise the names
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862 SUPREME COURT REPORTS [2022] 9 S.C.R.
A and particulars of all persons ordinarily residing in the village
pertaining to the Gaon Sabha. Ordinarily one page shall be
allotted to each family in the register. There shall be a separate
section in the register for families belonging to the Scheduled
Castes. The register shall be prepared in Hindi in Devanagri
script.
B
3. General conditions for registration in the register.—Every
person who has been ordinarily resident within the area of
the Gaon Sabha shall be entitled to be registered in the family
register.
C Explanation.—A person shall be deemed to be ordinarily
resident in a village if he has been ordinarily residing in such
village or is in possession of a dwelling house therein ready
for occupation.
4. Quarterly entries in the family register.—At the beginning
of each quarter commencing from April in each year, the
D
Secretary of a Gaon Sabha shall make necessary changes in
the family register consequent upon births and deaths, if any
occurring in the previous quarter in each family. Such changes
shall be laid before the next meeting of the Gaon Panchayat
for information.
E 5. Correction of any existing entry.—The Assistant Development
Officer (Panchayat) may on an application made to him in
this behalf order the correction of any existing entry in the
family register and the Secretary of the Gaon Sabha shall
then correct the Register accordingly.
F 6. Inclusion of names in the Register.—(1) Any person whose
name is not included in the family register may apply to the
Assistant Development Officer (Panchayat) for the inclusion
of his name therein.
(2) The Assistant Development Officer (Panchayat) shall, if
G satisfied, after such enquiry as he thinks fit that the applicant
is entitled to be registered in the Register, direct that the name
of the applicant be included therein and the Secretary of the
Gaon Sabha shall include the name accordingly.
6-A. Any person aggrieved by an order made under Rule 5 or
H Rule 6 may, within 30 days from the date of such order
VINOD KATARA v. STATE OF UTTAR PRADESH 863
[J. B. PARDIWALA, J.]
prefer and appeal to the Sub-Divisional Officer whose decision A
shall be final.
7. Custody and preservation of the register.—(1) The Secretary
of the Gaon Sabha shall be responsible for the safe custody
of the family register.
(2) Every person shall have a right to inspect the Register B
and to get attested copy of any entry or extract therefrom in
such manner and on payment of such fees, if any, as may be
specified in Rule 73 of the U.P. Panchayat Raj Rules.
FORM A
C
(See Rule 2)
***
Note.—In the remarks column the number and date of the
order, if any, by which any name is added or struck off should
be given along with the signature of the person making the D
entry.”
35. A perusal of the above Rules indicate that one page is allotted
to each family and that any change in the family consequent upon the
births and deaths is required to be incorporated on such page. The changes
are also required to be laid before the next meeting of the Gram Panchayat. E
Thus, it is evident that such Rules are statutorily framed in pursuance of
an Act. The entries in the register are required to be made by the officials
of the Gram Panchayat as part of their official duty.
36. This Court in the case of Manoj v. State of Haryana, reported
in (2022) 6 SCC 187, observed in regard to the Family Register referred F
to above as under:-
“39. We are unable to approve the broad view taken by the
High Court in some of the cases that family register is not
relevant to determine age of the family members. It is a question
of fact as to how much evidentiary value is to be attached to G
the family register, but to say that it is entirely not relevant
would not be the correct enunciation of law. The register is
being maintained in accordance with the rules framed under
a statute. The entries made in the regular course of the affairs
of the Panchayat would thus be relevant but the extent of
H
864 SUPREME COURT REPORTS [2022] 9 S.C.R.
A such reliance would be in view of the peculiar facts and
circumstances of each case.”
(Emphasis supplied)
37. In Abuzar Hossain (supra), this Court held as under:-
B “30. As a matter of fact, prior to the decisions of this Court in
Hari Ram [(2009) 13 SCC 211 : (2010) 1 SCC (Cri) 987]
and Akbar Sheikh [(2009) 7 SCC 415 : (2009) 3 SCC (Cri)
431], a three-Judge Bench of this Court speaking through
one of us (R.M. Lodha, J.) in Pawan [(2009) 15 SCC 259 :
(2010) 2 SCC (Cri) 522] had considered the question relating
C to admissibility of claim of juvenility for the first time in this
Court with reference to Section 7-A. The contention of
juvenility was raised for the first time before this Court on
behalf of the two appellants, namely, A-1 and A-2. The
argument on their behalf before this Court was that they were
D “juvenile” within the meaning of the 2000 Act on the date of
incident and the trial held against them under the Code was
illegal. With regard to A-1, his school leaving certificate was
relied on while as regards A- 2, reliance was placed on his
statement recorded under Section 313 and the school leaving
certificate. Dealing with the contention of juvenility, this
E Court stated that the claim of juvenility could be raised at
any stage, even after final disposal of the case. The Court
then framed the question in para 41 of the Report as to
whether an inquiry should be made or report be called for
from the trial court invariably where juvenility is claimed for
F the first time before this Court.
31. It was held in Pawan, (2009) 15 SCC 259 that where the
materials placed before this Court by the accused, prima facie,
suggested that he was a “juvenile” as defined in the 2000 Act
on the date of incident, it was necessary to call for the report
G or an inquiry to be made for determination of the age on the
date of incident. However, where a plea of juvenility is found
unscrupulous or the materials lack credibility or do not inspire
confidence and even prima facie satisfaction of the court is
not made out, further exercise in this regard may not be
required. It was also stated that if the plea of juvenility was
H not raised before the trial court or the High Court and is
VINOD KATARA v. STATE OF UTTAR PRADESH 865
[J. B. PARDIWALA, J.]
raised for the first time before this Court, the judicial A
conscience of the court must be satisfied by placing adequate
material that the accused had not attained the age of 18 years
on the date of commission of the offence. In the absence of
adequate material, any further inquiry into juvenility would
not be required.
B
32. Having regard to the general guidelines highlighted in
para 41 of Pawan case [(2009) 15 SCC 259 : (2010) 2 SCC
(Cri) 522] with regard to the approach of this Court where
juvenility is claimed for the first time, the Court then considered
the documents relied upon by A-1 and A-2 in support of the
claim of juvenility on the date of incident. In respect of the C
two documents relied upon by A-2, namely, statement under
Section 313 of the Code and the school leaving certificate,
this Court observed that the statement recorded under Section
313 was a tentative observation based on physical appearance
which was hardly determinative of age and insofar as school D
leaving certificate was concerned, it did not inspire any
confidence as it was issued after A-2 had already been
convicted and the primary evidence like entry from the birth
register had not been produced. As regards school leaving
certificate relied upon by A-1, this Court found that the same
had been procured after his conviction and no entry from the E
birth register had been produced. The Court was, thus, not
prima facie impressed or satisfied by the material placed on
behalf of A-1 and A-2. Those documents were not found
satisfactory and adequate to call for any report from the Board
or the trial court about the age of A-1 and A-2.” F
In Para 39, the Court summarizes the legal position as under:-
“39.1. A claim of juvenility may be raised at any stage even
after the final disposal of the case. It may be raised for the
first time before this Court as well after the final disposal of
the case. The delay in raising the claim of juvenility cannot G
be a ground for rejection of such claim. The claim of juvenility
can be raised in appeal even if not pressed before the trial
court and can be raised for the first time before this Court
though not pressed before the trial court and in the appeal
court. H
866 SUPREME COURT REPORTS [2022] 9 S.C.R.
A 39.2. For making a claim with regard to juvenility after
conviction, the claimant must produce some material which
may prima facie satisfy the court that an inquiry into the claim
of juvenility is necessary. Initial burden has to be discharged
by the person who claims juvenility.
B 39.3. As to what materials would prima facie satisfy the court
and/or are sufficient for discharging the initial burden cannot
be catalogued nor can it be laid down as to what weight
should be given to a specific piece of evidence which may be
sufficient to raise presumption of juvenility but the documents
referred to in Rules 12(3)(a)(i) to (iii) shall definitely be
C sufficient for prima facie satisfaction of the court about the
age of the delinquent necessitating further enquiry under Rule
12. The statement recorded under Section 313 of the Code is
too tentative and may not by itself be sufficient ordinarily to
justify or reject the claim of juvenility. The credibility and/or
D acceptability of the documents like the school leaving
certificate or the voters’ list, etc. obtained after conviction
would depend on the facts and circumstances of each case
and no hard-and- fast rule can be prescribed that they must
be prima facie accepted or rejected. In Akbar Sheikh [(2009)
7 SCC 415 : (2009) 3 SCC (Cri) 431] and Pawan [(2009) 15
E SCC 259 : (2010) 2 SCC (Cri) 522] these documents were not
found prima facie credible while in Jitendra Singh [(2010)
13 SCC 523 : (2011) 1 SCC (Cri) 857] the documents viz.
school leaving certificate, marksheet and the medical report
were treated sufficient for directing an inquiry and verification
F of the appellant’s age. If such documents prima facie inspire
confidence of the court, the court may act upon such
documents for the purposes of Section 7-A and order an enquiry
for determination of the age of the delinquent.
39.4. An affidavit of the claimant or any of the parents or a
G sibling or a relative in support of the claim of juvenility raised
for the first time in appeal or revision or before this Court
during the pendency of the matter or after disposal of the
case shall not be sufficient justifying an enquiry to determine
the age of such person unless the circumstances of the case
are so glaring that satisfy the judicial conscience of the court
H
VINOD KATARA v. STATE OF UTTAR PRADESH 867
[J. B. PARDIWALA, J.]
to order an enquiry into determination of the age of the A
delinquent.
39.5. The court where the plea of juvenility is raised for the
first time should always be guided by the objectives of the
2000 Act and be alive to the position that the beneficent and
salutary provisions contained in the 2000 Act are not defeated B
by the hypertechnical approach and the persons who are
entitled to get benefits of the 2000 Act get such benefits. The
courts should not be unnecessarily influenced by any general
impression that in schools the parents/guardians understate
the age of their wards by one or two years for future benefits
or that age determination by medical examination is not very C
precise. The matter should be considered prima facie on the
touchstone of preponderance of probability.
39.6. Claim of juvenility lacking in credibility or frivolous
claim of juvenility or patently absurd or inherently improbable
claim of juvenility must be rejected by the court at the D
threshold whenever raised.”
38. Justice T.S. Thakur (as His Lordship then was), by his separate
but concurring judgment, observed as under:-
“43.2. The second factor which must ever remain present in
the mind of the Court is that the claim of juvenility may at E
times be made even in cases where the accused does not
have any evidence showing his date of birth by reference to
any public document like the Register of Births and Deaths
maintained by the municipal authorities, panchayats or
hospitals nor any certificate from any school, as the accused F
was never admitted to any school. Even if admitted to a school
no record regarding such admission may at times be available
for production in the court. Again, there may be cases in which
the accused may not be in a position to provide a birth
certificate from the corporation, the municipality or the
panchayat, for we know that the registration of births and G
deaths may not be maintained and if maintained may not be
regular and accurate, and at times truthful.
44. Rule 12(3) of the Rules makes only three certificates
relevant. These are enumerated in sub-rules 3(a)(i) to (iii) of
the Rule which reads as under: H
868 SUPREME COURT REPORTS [2022] 9 S.C.R.
A “(3)(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
B municipal authority or a panchayat;
Non-production of the above certificates or any one of them
is not, however, fatal to the claim of juvenility, for sub-rule
(3)(b) to Rule 12 makes a provision for determination of the
question on the basis of the medical examination of the accused
C in the “absence” of the certificates.
45. Rule 12(3)(b) runs as under:
“12.(3)(b) and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought from a
D 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
E margin of one year,”
The expression “absence” appearing in the above provision
is not defined under the Act or the Rules. The word shall,
therefore, be given its literal dictionary meaning which is
provided by Concise Oxford Dictionary as under:
F
“Absence.—Being away from a place or person; time of
being away; non-existence or lack of; inattention due to
thought of other things.”
Black’s Law Dictionary also explains the meaning of
“absence” as under:
G
“Absence.—(1) The state of being away from one’s usual place
of residence. (2) A failure to appear, or to be available and
reachable, when expected. (3) Louisiana law. The state of
being an absent person.— Also termed (in sense 3) absentia.”
H
VINOD KATARA v. STATE OF UTTAR PRADESH 869
[J. B. PARDIWALA, J.]
46. It is axiomatic that the use of the expression and the context A
in which the same has been used strongly suggests that
“absence” of the documents mentioned in Rule 12(3)(a)(i) to
(iii) may be either because the same do not exist or the same
cannot be produced by the person relying upon them. Mere
non-production may not, therefore, disentitle the accused of
B
the benefit of the Act nor can it tantamount to deliberate
non-production, giving rise to an adverse inference unless
the court is in the peculiar facts and circumstances of a case
of the opinion that the non-production is deliberate or
intended to either mislead the court or suppress the truth. It is
in this class of cases that the court may have to exercise its C
powers and discretion with a certain amount of insight into
the realities of life.
47. One of such realities is that illiteracy and crime have a
close nexus though one may not be directly proportional to
the other. Juvenile delinquency in this country as elsewhere D
in the world, springs from poverty and unemployment, more
than it does out of other causes. A large number of those
engaged in criminal activities, may never have had the
opportunity to go to school. Studies conducted by the National
Crime Records Bureau (NCRB), Ministry of Home Affairs,
reveal that poor education and poor economic set up are E
generally the main attributes of juvenile delinquents. Result
of the 2011 study further show that out of 33,887 juveniles
arrested in 2011, 55.8% were either illiterate (6122) or
educated only till the primary level (12,803). Further, 56.7%
of the total juveniles arrested fell into the lowest income F
category. A similar study is conducted and published by B.N.
Mishra in his book Juvenile Delinquency and Justice System,
in which the author states as follows:
“One of the prominent features of a delinquent is poor
educational attainment. More than 63 per cent of G
delinquents are illiterate. Poverty is the main cause of their
illiteracy. Due to poor economic condition they were
compelled to enter into the labour market to supplement
their family income. It is also felt that poor educational
attainment is not due to the lack of intelligence but may be
H
870 SUPREME COURT REPORTS [2022] 9 S.C.R.
A due to lack of opportunity. Although free education is
provided to Scheduled Castes and Scheduled Tribes, even
then, the delinquents had a very low level of expectations
and aspirations regarding their future which in turn is due
to lack of encouragement and unawareness of their parents
that they play truant.” (emphasis supplied)
B
What should then be the approach in such cases, is the
question. Can the advantage of a beneficial legislation be
denied to such unfortunate and wayward delinquents? Can
the misfortune of the accused never going to a school be
followed or compounded by denial of the benefit that the
C legislation provides in such emphatic terms, as to permit an
enquiry even after the last Court has disposed of the appeal
and upheld his conviction? The answer has to be in the
negative.
48. If one were to adopt a wooden approach, one could say
D nothing short of a certificate, whether from the school or a
municipal authority would satisfy the court’s conscience,
before directing an enquiry. But, then directing an enquiry is
not the same thing as declaring the accused to be a juvenile.
The standard of proof required is different for both. In the
E former, the court simply records a prima facie conclusion. In
the latter, the court makes a declaration on evidence, that it
scrutinises and accepts only if it is worthy of such acceptance.
The approach at the stage of directing the enquiry has of
necessity to be more liberal, lest, there is avoidable
miscarriage of justice. Suffice it to say that while affidavits
F may not be generally accepted as a good enough basis for
directing an enquiry, that they are not so accepted is not a
rule of law but a rule of prudence. The Court would, therefore,
in each case weigh the relevant factors, insist upon filing of
better affidavits if the need so arises, and even direct, any
G additional information considered relevant including the
information regarding the age of the parents, the age of siblings
and the like, to be furnished before it decides on a case to
case basis whether or not an enquiry under Section 7-A ought
to be conducted. It will eventually depend on how the court
evaluates such material for a prima facie conclusion that the
H court may or may not direct an enquiry.” (Emphasis supplied)
VINOD KATARA v. STATE OF UTTAR PRADESH 871
[J. B. PARDIWALA, J.]
39. Thus, Section 7A(1) of the 2000 Act and the proviso thereto A
provided that a claim of juvenility might be raised before any court and
it shall be recognized at any stage, even after the final disposal of the
case, and such claim shall be determined in terms of the provisions
contained in the 2000 Act and the Rules made thereunder, even if the
juvenile has ceased to be so, on or before the date of commencement of
B
the 2000 Act.
40. Sub-section (2) of Section 7A mandates that if the Court finds
a person to be a juvenile on the date of the commission of offence
under sub-section (1), it shall forward the juvenile to the Juvenile Justice
Board for passing an appropriate order, and the sentence, if any, passed
by a Court shall be deemed to have no effect. C
41. Section 16 of the 2000 Act provides as hereunder:-
“16. Order that may not be passed against juvenile.—
(1) Notwithstanding anything to the contrary contained in any
other law for the time being in force, no juvenile in conflict D
with law shall be sentenced to death or imprisonment for any
term which may extend to imprisonment for life, or committed
to prison in default of payment of fine or in default of
furnishing security:
Provided that where a juvenile who has attained the age of E
sixteen years has committed an offence and the Board is
satisfied that the offence committed is of so serious in nature
or that his conduct and behaviour have been such that it would
not be in his interest or in the interest of other juvenile in a
special home to send him to such special home and that none F
of the other measures provided under this Act is suitable or
sufficient, the Board may order the juvenile in conflict with
law to be kept in such place of safety and in such manner as
it thinks fit and shall report the case for the order of the State
Government.
G
(2) On receipt of a report from a Board under sub-section (1),
the State Government may make such arrangement in respect
of the juvenile as it deems proper and may order such juvenile
to be kept under protective custody at such place and on such
conditions as it thinks fit:
H
872 SUPREME COURT REPORTS [2022] 9 S.C.R.
A Provided that the period of detention so ordered shall
not exceed in any case the maximum period provided under
Section 15 of this Act.”
42. The maximum period of detention in respect of a juvenile is
three years as provided in Section 15(1)(g). The said Section provides
B that where the Juvenile Justice Board is, on inquiry, satisfied that the
juvenile has committed an offence, then notwithstanding anything to the
contrary contained in any other law for the time being in force, the Juvenile
Justice Board may, if it thinks fit, make an order directing the juvenile to
be sent to a special home for a period of three years.
C 43. In view of Section 7A of the 2000 Act referred to hereinabove,
applicable to the writ applicant herein, the plea of juvenility could be
raised in any court, at any stage even after the final disposal of the
Special Leave Petition under Article 136 of the Constitution. In the case
of the writ applicant herein, his Special Leave Petition had also been
dismissed by this Court. However, this Court is still obliged to consider
D the plea of juvenility taken by the writ applicant and grant him appropriate
relief. The fact that the 2000 Act has later been replaced by the 2015
Act would make no difference.
44. In regard to the nature of the inquiry to be conducted by the
court in determining the age under Section 7A of the 2000 Act and Rule
E 12, this Court in Ashwani Kumar Saxena v. State of Mahya Pradesh,
AIR 2013 SC 553, has held as follows:-
“25. Section 7-A, obliges the court only to make an inquiry,
not an investigation or a trial, an inquiry not under the Code
of Criminal Procedure, but under the JJ Act. The criminal
F courts, Juvenile Justice Board, committees, etc. we have
noticed, proceed as if they are conducting a trial, inquiry,
enquiry or investigation as per the Code. The statute requires
the court or the Board only to make an “inquiry” and in what
manner that inquiry has to be conducted is provided in the JJ
G Rules. Few of the expressions used in Section 7-A and Rule
12 are of considerable importance and a reference to them is
necessary to understand the true scope and content of those
provisions. Section 7-A has used the expressions “court shall
make an inquiry”, “take such evidence as may be necessary”
and “but not an affidavit”. The Court or the Board can accept
H as evidence something more than an affidavit i.e. the Court
VINOD KATARA v. STATE OF UTTAR PRADESH 873
[J. B. PARDIWALA, J.]
or the Board can accept documents, certificates, etc. as A
evidence, need not be oral evidence.
26. Rule 12 which has to be read along with Section 7-A has
also used certain expressions which are also to be borne in
mind. Rule 12(2) uses the expression “prima facie” and “on
the basis of physical appearance” or “documents, if B
available”. Rule 12(3) uses the expression “by seeking
evidence by obtaining”. These expressions in our view
re-emphasise the fact that what is contemplated in Section
7-A and Rule 12 is only an inquiry. Further, the age
determination inquiry has to be completed and age be
determined within thirty days from the date of making the C
application; which is also an indication of the manner in which
the inquiry has to be conducted and completed. The word
“inquiry” has not been defined under the JJ Act, but Section
2(y) of the JJ Act says that all words and expressions used
and not defined in the JJ Act but defined in the Code of D
Criminal Procedure, 1973 (2 of 1974), shall have the meanings
respectively assigned to them in that Code.
27. Let us now examine the meaning of the words “inquiry”,
“enquiry”, “investigation” and “trial” as we see in the Code
of Criminal Procedure and their several meanings attributed E
to those expressions. “Inquiry” as defined in Section 2(g)
CrPC reads as follows:
2. (g) ‘inquiry’ means every inquiry, other than a trial,
conducted under this Code by a Magistrate or court;”
The word “enquiry” is not defined under the Code of F
Criminal Procedure which is an act of asking for
information and also consideration of some evidence, may
be documentary.
“Investigation” as defined in Section 2(h) CrPC reads as
follows: G
2. (h) ‘investigation’ includes all the proceedings under
this Code for the collection of evidence conducted by a
police officer or by any person (other than a Magistrate)
who is authorised by a Magistrate in this behalf;”
H
874 SUPREME COURT REPORTS [2022] 9 S.C.R.
A The expression “trial” has not been defined in the Code of
Criminal Procedure but must be understood in the light of
the expressions “inquiry” or “investigation” as contained
in Sections 2(g) and 2(h) of the Code of Criminal Procedure.
28. The expression “trial” has been generally understood as
B the examination by court of issues of fact and law in a case
for the purpose of rendering the judgment relating to some
offences committed. We find in very many cases that the court/
the Juvenile Justice Board while determining the claim of
juvenility forget that what they are expected to do is not to
conduct an inquiry under Section 2(g) of the Code of Criminal
C Procedure, but an inquiry under the JJ Act, following the
procedure laid down under Rule 12 and not following the
procedure laid down under the Code.
29. The Code lays down the procedure to be followed in every
investigation, inquiry or trial for every offence, whether under
D the Indian Penal Code or under other Penal laws. The Code
makes provisions for not only investigation, inquiry into or
trial for offences but also inquiries into certain specific matters.
The procedure laid down for inquiring into the specific matters
under the Code naturally cannot be applied in inquiring into
E other matters like the claim of juvenility under Section 7A
read with Rule 12 of the 2007 Rules. In other words, the law
regarding the procedure to be followed in such inquiry must
be found in the enactment conferring jurisdiction to hold
inquiry.
F 30. Consequently, the procedure to be followed under the J.J.
Act in conducting an inquiry is the procedure laid down in
that statute itself i.e. Rule 12 of the 2007 Rules.
We cannot import other procedures laid down in the Code of
Criminal Procedure or any other enactment while making an
G inquiry with regard to the juvenility of a person, when the
claim of juvenility is raised before the court exercising powers
under Section 7A of the Act. Many of the cases, we have come
across, it is seen that the Criminal Courts are still having the
hangover of the procedure of trial or inquiry under the Code
as if they are trying an offence under the Penal laws forgetting
H
VINOD KATARA v. STATE OF UTTAR PRADESH 875
[J. B. PARDIWALA, J.]
the fact that the specific procedure has been laid down in A
Section 7A read with Rule 12.
31. We also remind all Courts/J.J. Board and the Committees
functioning under the Act that a duty is cast on them to seek
evidence by obtaining the certificate etc. mentioned in Rule
12 (3) (a) (i) to (iii). The courts in such situations act as a B
parens patriae because they have a kind of guardianship over
minors who from their legal disability stand in need of
protection.
32. “Age determination inquiry” contemplated under Section
7A of the Act r/w Rule 12 of the 2007 Rules enables the court C
to seek evidence and, in that process, the court can obtain
the matriculation or equivalent certificates, if available. Only
in the absence of any matriculation or equivalent certificates,
the court need obtain the date of birth certificate from the
school first attended other than a play school. Only in the
absence of matriculation or equivalent certificate or the date D
of birth certificate from the school first attended, the court
need obtain the birth certificate given by a corporation or a
municipal authority or a panchayat (not an affidavit but
certificates or documents). The question of obtaining medical
opinion from a duly constituted Medical Board arises only if E
the above mentioned documents are unavailable. In case exact
assessment of the age cannot be done, then the court, for
reasons to be recorded, may, if considered necessary, give the
benefit to the child or juvenile by considering his or her age
on lower side within the margin of one year.
F
33. Once the court, following the above mentioned procedures,
passes an order; that order shall be the conclusive proof of
the age as regards such child or juvenile in conflict with law.
It has been made clear in sub- section (5) or Rule 12 that no
further inquiry shall be conducted by the court or the Board
after examining and obtaining the certificate or any other G
documentary proof after referring to sub-rule (3) of the Rule
12. Further, Section 49 of the J.J. Act also draws a
presumption of the age of the juvenility on its determination.
34. Age determination inquiry contemplated under the JJ Act
and Rules has nothing to do with an enquiry under other H
876 SUPREME COURT REPORTS [2022] 9 S.C.R.
A legislations, like entry in service, retirement, promotion etc.
There may be situations where the entry made in the
matriculation or equivalent certificates, date of birth
certificate from the school first attended and even the birth
certificate given by a Corporation or a Municipal Authority
or a Panchayat may not be correct. But Court, J.J. Board or a
B
Committee functioning under the J.J. Act is not expected to
conduct such a roving enquiry and to go behind those
certificates to examine the correctness of those documents,
kept during the normal course of business. Only in cases where
those documents or certificates are found to be fabricated or
C manipulated, the Court, the J.J. Board or the Committee need
to go for medical report for age determination”.
45. What is discernible from the dictum laid down in Ashwani
Kumar Saxena (supra) is that, in deciding whether an accused is juvenile
or not, a hyper technical approach should not be adopted. While
D appreciating the evidence adduced on behalf of the accused in support
of the plea that he is a juvenile, if two views are possible on the same
evidence, the Court should lean in favour of holding the accused to be
juvenile in borderline cases. The inquiry contemplated is not a roving
inquiry. The Court can accept as evidence something more than an
affidavit i.e. documents, certificates etc. as evidence in proof of age. A
E mere opinion by a person as to the accused looking one or two years
older than the age claimed by him (as the opinion of the head master in
the present case) or the fact that the accused told his age to be more
than what he alleges in the case while being arrested by the police officer
would not hold much water. It is the documentary evidence placed on
F record that plays a major role in determining the age of a juvenile in
conflict of law. And, it is only in the cases where the documents or
certificates placed on record by the accused in support of his claim of
juvenility are found to be fabricated or manipulated, that the Court, the
Juvenile Justice Board or the Committee need to go for medical test for
age determination.
G
46. Clause (a) of Rule 12(3) of the 2007 Rules contains a
hierarchical ordering, evident from the use of the language “in the absence
whereof”. This indicates that where a matriculation or equivalent
certificate is available, the documents adverted to in (ii) and (iii) cannot
be relied upon. The matriculation certificate, in other words, is given
H
VINOD KATARA v. STATE OF UTTAR PRADESH 877
[J. B. PARDIWALA, J.]
precedence. It is in the absence of a matriculation certificate that the A
date of birth certificate of the school first attended, can be relied upon. It
is in the absence of both the matriculation and the birth certificates of
the first school attended that a birth certificate issued by the corporation,
municipal authority or panchayat could be obtained.
47. In Shah Nawaz v. State of Uttar Pradesh, (2011) 13 SCC B
751, this Court, while examining the scope of Rule 12 of the 2007 Rules,
has reiterated that medical opinion from the Medical Board should be
sought only when the matriculation certificate or equivalent certificate
or the date of birth certificate from the school first attended or any birth
certificate issued by a corporation or a municipal authority or a panchayat
or municipality is not available. This Court had held that the entry related C
to the date of birth entered in the marksheet is a valid evidence for
determining the age of the accused person so also the school leaving
certificate for determining the age of the appellant.
48. In the instant case, the accused has not produced any
matriculation certificate or equivalent certificate to prove his age. What D
is produced by him is only the Family Register issued under the U.P.
Panchayat Raj Act, 1947. The document cannot be accepted as equivalent
to matriculation certificate to prove the age of the accused. However,
the evidentiary value of the Family Register will have to be looked into in
the course of the inquiry that we may order. E
Determination of plea of juvenility at a belated stage
49. Ideally, there should not be any dispute as to the age of a
person if the birth is registered in accordance with law and date of birth
is entered in the school records on the basis of genuine record of birth.
However, in India, the factors like poverty, illiteracy, ignorance, F
indifference and inadequacy of the system often lead to there being no
documentary proof of a person’s age. Therefore, in those cases where
the plea of juvenility is raised at a belated stage, often certain medical
tests are resorted to forage determination in absence of the documents
enumerated in Section 94 of the Act 2015. The rule allowing plea of G
juvenility to be raised at a considerably belated stage has its rationale in
the contemporary child rights jurisprudence which requires the
stakeholders to act in the best interest of the child.
50. In Court On Its Own Motion v. Dept. of Women and Child
Development, reported in 2012 SCC OnLine Del 2774, the petitioners
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878 SUPREME COURT REPORTS [2022] 9 S.C.R.
A therein highlighted that how several hundred children were languishing
in the Tihar Jail because the police mentioned them as adults in the
arrest memo.
51. The same is the story in the State of Uttar Pradesh which
led the High Court of Allahabad to pass the order in Writ Petition Public
B Interest Litigation referred to above in para 6.
52. Awareness about the rights of the child and correlated duties
remain low among the functionaries of the juvenile justice system. Once
a child is caught in the web of adult criminal justice system, it is difficult
for the child to get out of it unscathed. The bitter truth is that even the
C legal aid programmes are mired in systemic bottlenecks and often it is
only at a considerably belated stage of the proceeding that the person
becomes aware of the rights, including the right to be differently treated
on the ground of juvenility.
53. What needs to be kept in mind is the main object and purpose
D of the Juvenile Justice Act. The focus of this legislation is on the juvenile’s
reformation and rehabilitation so that he also may have an opportunity to
enjoy as other children. In Pratap Singh (supra), this Court, elaborating
on the objects and purpose of the Juvenile Justice Act, made the following
observations:-
E “...The said Act is not only a beneficent legislation, but also
a remedial one. The Act aims at grant of care, protection and
rehabilitation of a juvenile vis-à-vis the adult criminals.
Having regard to Rule 4 of the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice, it
must also be borne in mind that the moral and psychological
F components of criminal responsibility were also one of the
factors in defining a juvenile. The first objective, therefore,
is the promotion of the well-being of the juvenile and the
second objective to bring about the principle of
proportionality whereby and whereunder the proportionality
G of the reaction to the circumstances of both the offender and
the offence including the victim should be safeguarded...”
What is bone ossification test?
54. The famous American philosopher Mark Twain once said,
“Age is an issue of Mind over matter. If you don’t mind, it doesn’t
H
VINOD KATARA v. STATE OF UTTAR PRADESH 879
[J. B. PARDIWALA, J.]
matter.” But the above is not the case in criminal jurisprudence when it A
comes to age. Here, age matters because law is mindful to it.
55. The bone ossification test (hereinafter “ossification test”) is a
test that determines age based on the “degree of fusion of bone” by
taking the x-ray of a few bones. In simple words, the ossification test or
osteogenesis is the process of the bone formation based on the fusion of B
joints between the birth and age of twenty-five years in an individual.
Bone age is an indicator of the skeletal and biological maturity of an
individual which assists in the determination of age. The most common
method used for the calculation of the bone age is radiography of the
hand and wrist until the age of 18 years beyond which the medial age of
clavicle is used for bone age calculation till the age of 22 years as the C
hand and wrist bone radiographs cannot be computed beyond 18 years
of age as the elongation of the bone is complete after adolescence.
However, it must be noted that the ossification test varies slightly based
on individual characteristics, therefore the ossification test though is
relevant however it cannot be called solely conclusive. D
56. The 2015 Act under Section 94(2)(iii) read with Rule 12(3) of
the 2007 Rules provides the legislative sanction for the conduct of
ossification test or other medical age determination test available in the
absence of other documentary proof of age i.e. matriculation certificate
or birth certificate, which has to be given within 15 days from the date of E
such order. The test is to be conducted by the Child Welfare Committee
(CWC). The provision mentioned herein is the basis for determining the
age of a child under the 2000 Act which even includes a child who is a
victim of crime in addition to a child in conflict with the law.
57. In Vishnu v. State of Maharashtra, (2006) 1 SCC 283, this F
Court clarified that the ossification test by the medical officer is to
assist the court which falls under the ambit of medical expert opinion i.e.,
advisory in nature and not binding. However, such an opinion cannot
override ocular or documentary evidence, which has been proved to be
true and admissible as they constitute “statement of facts”. This Court in
Vishnu (supra) placed reliance on Madan Gopal Kakkad v. Naval G
Dubey, (1992) 3 SCC 204, to hold that a medical witness is not a witness
of fact therefore the opinion rendered by such a medical expert is merely
advisory until accepted by the Court, however, once accepted, they
become the opinion of the Court.
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880 SUPREME COURT REPORTS [2022] 9 S.C.R.
A Margin of error principle
58. The bone ossification test is not an exact science that can
provide us with the exact age of the person. As discussed above, the
individual characteristics such as the growth rate of bones and skeletal
structures can affect the accuracy of this method. This Court has
B observed in Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681:
(2010) 2 SCC (Cri) 1194, and Jyoti Prakash Rai v. State of Bihar,
(2008) 15 SCC 223: (2009) 3 SCC (Cri) 796, that the ossification test is
not conclusive for age determination because it does not reveal the exact
age of the person, but the radiological examination leaves a margin of
two years on either side of the age range as prescribed by the test
C
irrespective of whether the ossification test of multiple joints is conducted.
The courts in India have accepted the fact that after the age of thirty
years the ossification test cannot be relied upon for age determination. It
is trite that the standard of proof for the determination of age is the
degree of probability and not proof beyond reasonable doubt.
D
59. In the aforesaid context, we may also refer to a decision of
this Court in the case of Mukarrab v. State of Uttar Pradesh, reported
in (2017) 2 SCC 210, wherein this Court has observed in para 27 as
under:-
E “… Following Babloo Pasi v. State of Jharkhand, (2008) 13
SCC 133 and State of M.P. v. Anoop Singh, (2015) 7 SCC
773, we hold that ossification test cannot be regarded as
conclusive when it comes to ascertaining the age of a person.
More so, the appellants herein have certainly crossed the age
of thirty years which is an important factor to be taken into
F account as age cannot be determined with precision. …”
60. In Arnit Das v. State of Bihar, (2000) 5 SCC 488, it was
observed that the Court should not take a hyper-technical approach while
appreciating evidence for determination of age of the accused. If two
views are possible, the Court should lean in favour of holding the accused
G to be a juvenile in border line cases. This approach was further reiterated
by this Court in Rajendra Chandra v. State of Chhattisgarh, (2002) 2
SCC 287, in which it laid down that the standard of proof of age
determination is the degree of probability and not proof beyond reasonable
doubt.
H
VINOD KATARA v. STATE OF UTTAR PRADESH 881
[J. B. PARDIWALA, J.]
61. In Rishipal Singh Solanki v. State of Uttar Pradesh, (2021) A
SCC OnLine SC 1079, this Court observed explicitly that Section 94 of
the 2015 Act does not give precedence to the matriculation and other
certificates, to determine the age of person, since the said section only
deals with the matter of procedure. This Court held that lex non cogit
ad impossibilia (law does not demand the impossible) and when the
B
ossification test cannot yield trustworthy and reliable results, such test
cannot be made a basis to determine the age of the person and other
available certificates may be taken into consideration.
62. Similarly, in the case of Ram Vijay Singh v. State of U.P.,
(2021) SCC Online SC 142, this Court, while negativing the contention
C
canvassed on behalf of the appellant convict therein that the procedure
as contained in Rule 12(3)(b) of the 2007 Rules now being part of Section
94 of the 2015 Act and once the statute has provided the ossification test
as the basis for determining juvenility, the findings of such ossification
test cannot be ignored, held in paras 15 and 16 resply as under:-
D
“15. We find that the procedure prescribed in Rule 12 is not
materially different than the provisions of Section 94 of the
Act to determine the age of the person. There are minor
variations as the Rule 12(3)(a)(i) and (ii) have been clubbed
together with slight change in the language. Section 94 of
the Act does not contain the provisions regarding benefit of E
margin of age to be given to the child or juvenile as was
provided in Rule 12(3)(b) of the Rules. The importance of
ossification test has not undergone change with the enactment
of Section 94 of the Act. The reliability of the ossification test
remains vulnerable as was under Rule 12 of the Rules.
F
16. As per the Scheme of the Act, when it is obvious to the
Committee or the Board, based on the appearance of the
person, that the said person is a child, the Board or Committee
shall record observations stating the age of the Child as nearly
as may be without waiting for further confirmation of the age. G
Therefore, the first attempt to determine the age is by assessing
the physical appearance of the person when brought before
the Board or the Committee. It is only in case of doubt, the
process of age determination by seeking evidence becomes
necessary. At that stage, when a person is around 18 years
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882 SUPREME COURT REPORTS [2022] 9 S.C.R.
A of age, the ossification test can be said to be relevant for
determining the approximate age of a person in conflict with
law. However, when the person is around 40-55 years of age,
the structure of bones cannot be helpful in determining the
age. This Court in Arjun Panditrao Khotkar v. Kailash
Kushanrao Gorantyal and Ors. held, in the context of
B
certificate required under Section 65B of the Evidence Act,
1872, that as per the Latin maxim, lex non cogit ad
impossibilia, law does not demand the impossible. Thus, when
the ossification test cannot yield trustworthy and reliable
results, such test cannot be made a basis to determine the age
C of the person concerned on the date of incident. Therefore,
in the absence of any reliable trustworthy medical evidence
to find out age of the appellant, the ossification test conducted
in year 2020 when the appellant was 55 years of age cannot
be conclusive to declare him as a juvenile on the date of the
incident.”
D
63. We are conscious of the fact that in the case on hand the
convict was subjected to medical examination after being referred to the
Medical Board. However, the report on record does not inspire much
confidence. Over and above the same, the decision in the case of Ram
Vijay Singh (supra) makes it very clear that in the absence of a reliable
E
and trustworthy medical evidence to find out the age of the appellant
herein, the ossification test conducted in the year 2021 when the appellant
was above 50 years of age cannot be conclusive to declare him as a
juvenile on the date of the incident. This Court observed that when a
person is around 18 years of age, the ossification test can be said to be
F relevant for determining the approximate age of a person in conflict with
law. However, when the person is around 40-55 years of age, the structure
of bones cannot be helpful in determining the age. In such circumstances,
it will be a matter of debate as to what extent the new ossification test
report that may come on record can be relied upon and to what extent
the same would be helpful to the appellant herein.
G
64. Despite all the odds against the writ applicant, we would still
like to look into the matter in the larger interest of justice. It will be in
fitness of things if the writ applicant convict is once again subjected to
the ossification test at the Civil Hospital, Allahabad or any other latest
medical age determination test and such test shall be carried out by a
H
VINOD KATARA v. STATE OF UTTAR PRADESH 883
[J. B. PARDIWALA, J.]
team of three doctors, one of whom should be the head of the A
Department of Radiology.
65. In view of the aforesaid, we issue the following directions:
(i) We direct the Sessions Court, Agra to examine the claim of
the writ applicant to juvenility in regard with law within one B
month from the date of communication of this order;
(ii) The concerned Sessions Court shall also examine the
authenticity and genuineness of the Family Register sought
to be relied upon by writ applicant convict considering that
the document does not appear to be contemporaneous. This C
document assumes importance, more particularly in the light
of the fact that the ossification test report may not be absolutely
helpful in determining the exact age of the writ applicant on
the date of incident. If the Family Register on record is
ultimately found to be authentic and genuine, then we may
not have to fall upon the ossification test report. In such D
circumstances, the Presiding Officer concerned shall pay
adequate attention towards this document and try to ascertain
the authenticity and genuineness of the same. If need be, the
statements of the persons concerned i.e. from the concerned
government department may also be recorded; E
(iii) The Sessions Court shall ensure that the writ applicant convict
is medically examined by taking an ossification test or any
other modern recognized method of age determination;
(iv) The Sessions Court concerned shall submit its report as regards
the aforesaid to this Court within one month from the date of F
communication of this order;
(v) The Registry is directed to forward one copy of this order to
Sessions Court, Agra;
(vi) We request the learned counsel appearing for the State to G
take appropriate steps to facilitate the Sessions Court to
complete the enquiry.
66. Notify this matter after a period of four weeks along with the
report that may be received from the Sessions Court, Agra. The final
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884 SUPREME COURT REPORTS [2022] 9 S.C.R.
A order shall be passed after perusal of the report upon receipt from the
Sessions Court, Agra.
Nidhi Jain Directions issued.
(Assisted by : Shubhanshu Das, LCRA)
B
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E
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