FIRST ISSUE- Claim of juveniles -when can be raised?
- ABUZAR HOSSAIN @ GULAM HOSSAIN V. STATE OF WEST BENGAL1(SUPREME COURT OF INDIA)| 10-10-2012
Question of when should a claim of juvenility be recognized and sent for determination when it is raised for the first time in appeal or before this Court or raised in trial and appeal but not pressed and then pressed for the first time before this Court, was answered by supreme court as follows:-
“36. Now, we summarise the position which is as under:
- A claim of juvenility may be raised at any stage even after final disposal of the case. It may be raised for the first time before this Court as well after final disposal of the case. The delay in raising the claim of juvenility cannot 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 appeal court.
- 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.
- 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 Rule 12(3)(a)(i) to (iii) shall definitely be 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 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 Sheikh2 and Pawan8 these documents were not found prima facie credible while in Jitendra Singh10 the documents viz., school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification 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 7A and order an enquiry for determination of the age of the delinquent.
- An affidavit of the claimant or any of the parents or a 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 to order an enquiry into determination of age of the delinquent.
- 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 2000 Act are not defeated by hyper-technical approach and the persons who are entitled to get benefits of 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 precise. The matter should be considered prima facie on the touchstone of preponderance of probability.
- 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 threshold whenever raised.”
2. HARI RAM V. STATE OF RAJASTHAN (SUPREME COURT OF INDIA)2 | 05-05-2009
In this Supreme Court Highlighted that the effect of the proviso to Section 7-A introduced by the Amending Act makes it clear that the claim of juvenility may be raised before any Court which shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in the Act and the Rules made thereunder which includes the definition of “Juvenile” in Section 2(k) and 2(l) of the Act even if the Juvenile had ceased to be so on or before(emphasis supplied) the date of commencement of the Act and observed as follows:-
“40. In the instant case, the appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years. It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of age which was given prospective prospect. However, as indicated hereinbefore after the decision in Pratap Singhs case (supra), Section 2(l) was amended to define a juvenile in conflict with law to mean 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; Section 7A was introduced in the 2000 Act and Section 20 thereof was amended whereas Rule 12 was included in the Juvenile Justice Rules, 2007, which gave retrospective effect to the provisions of the Juvenile Justice Act, 2000. Section 7A of the Juvenile Justice Act, 2000, made provision for the claim of juvenility to be raised before any Court at any stage, as has been done in this case, and such claim was required to be determined in terms of the provisions contained in the 2000 Act and the Rules framed thereunder, even if the juvenile had ceased to be so on or before the date of commencement of the Act. Accordingly, a juvenile who had not completed eighteen years on the date of commission of the offence was also entitled to the benefits of the Juvenile Justice Act, 2000, as if the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act
41.The said position was re-emphasised by virtue of the amendments introduced in Section 20 of the 2000 Act, whereby the Proviso and Explanation were added to Section 20, which made it even more explicit that in all pending cases, including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the determination of juvenility of such a juvenile would be in terms of clause (l) of Section 2 of the 2000 Act, and the provisions of the Act would apply as if the said provisions had been in force when the alleged offence was committed.
42. In the instant case, there is no controversy that the appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force. In view of Sections 2(k), 2(l) and 7A read with Section 20 of the said Act, the provisions thereof would apply to the appellants case and on the date of the alleged incident it has to be held that he was a juvenile.
43. The appeal has, therefore, to be allowed on the ground that notwithstanding the definition of “juvenile” under the Juvenile Justice Act, 1986, the appellant is covered by the definition of “juvenile” in Section 2(k) and the definition of “juvenile in conflict with law” in Section 2(l) of the Juvenile Justice Act, 2000, as amended.”
SECOND ISSUE- How Juvenile can be treated and what are benefits given to juvenile.
In this case Hon’ble supreme court observed as follows:- “42. In construing a penal statute, the object of the law must be clearly borne in mind. The importance of time-bound investigation and a trial in relation to an offence allegedly committed by a juvenile is explicit as has been dealt with in some details hereinbefore. While making investigation it is expected that the accused would be arrested forthwith. He, upon his arrest; if he appears to be a juvenile, cannot be kept in police custody and may be released on bail. If he is not released on bail by the arresting authority, he has to be produced before the competent Court or Board. Once he appears to be juvenile, the competent court and/ or board may pass an appropriate order upon releasing him for bail or send him to a protective custody. An inquiry for the purpose of determination of age of the juvenile need not be resorted to if the person produced is admitted to be a juvenile. An inquiry would be necessary only if a dispute is raised in that behalf. A decision thence is required to be taken by the competent court and /or board having regard to the status of the accused as to whether he is to be released on bail or sent to a protective custody or remanded to police or judicial custody. For the said purpose what is necessary would be to find out as to whether on the date of commission of the offence he was a juvenile or not as otherwise the purpose for which the Act was enacted would be defeated. The provisions of the said Act, as indicated hereinbefore, clearly postulate that the necessary steps in the proceedings are required to be taken not only for the purpose of adopting a special procedure at the initial stage but also for the intermediary and final stage of the proceedings. If the person concerned is a juvenile, he cannot be tried along with other adult accused. His trial must be held by the Board separately. Having regard to Rule 20.1 of the Rules his case is required to be determined, without any unnecessary delay. In the trial, the right of the juvenile as regard his privacy must be protected. He is entitled to be represented by a legal adviser and for free legal aid, if he applies therefor. His parents and/or guardian are also entitled to participate in the proceedings. The Court would be entitled to take into consideration the Social Inquiry Reports wherein the background and the circumstances in which the juvenile was living and the condition in which the offence had been created may be properly investigated so as to facilitate juvenile adjudication of the case by the competent authority. At all stages, the Court/Board is required to pass an appropriate order expeditiously. Right of a juvenile to get his case disposed of expeditiously is a statutory as also a constitutional right.
43. Even at the final stage, viz., after he is found to be guilty of commission of an offence, he must be dealt with differently vis-Ã -vis adult prisoners. Only because his age is to be determined in a case of dispute by the competent court or the board in terms of Section 26 of the Act, the same would not mean that the relevant date therefor would be the one on which he is produced before the Board. If such an argument is accepted, the same would result in absurdity as, in a given case, it would be open to the police authorities not to produce him before the Board before he ceases to be juvenile. If he is produced after he ceases to be juvenile, it may not be necessary for the Board to send him in the protective custody or release him on bail as a result whereof he would be sent to the judicial or police custody which would defeat the very purpose for which the Act had been enacted. Law cannot be applied in an uncertain position. Furthermore, the right to have a fair trial strictly in terms of the Act which would include procedural safeguard is a fundamental right of the juvenile. A proceeding against a juvenile must conform to the provisions of the Act.”
Third issue- Can a juvenile be sent in Jail?
4. SHILPA MITTAL v. STATE OF NCT OF DELHI4 (Supreme Court of India) | 09-01-2020
In this Supreme Court highlighted that the inquiry for serious offences has to be disposed of by following the procedure for trial in summons cases under the Code of Criminal Procedure, 1973 (Cr.PC for short). As far as heinous offences are concerned if the child is below 16 years then the procedure prescribed for serious offences is to be followed; but if the child is above 16 years then assessment in terms of Section 15 has to be made. Further Court observed as follows:-
“18. The Children’s Court constituted under the Act of 2015 has to determine whether there is actually any need for trial of the child as an adult under the provisions of Cr.PC and pass appropriate orders in this regard. The Children’s Court should also take into consideration the special needs of the child, tenets of fair trial and maintaining child-friendly atmosphere. The Court can also hold that there is no need to try the child as an adult. Even if the Children’s Court holds that the child has to be tried as an adult, it must ensure that the final order includes an individual care plan for rehabilitation of the child as specified in Sub-section (2) of Section
19. Furthermore, under Sub-section(3) such a child must be kept in a place of safety and cannot be sent to jail till the child attains the age of 21 years, even if such a child has to be tried as an adult. It is also provided that though the child may be tried as an adult, reformative services, educational services, skill development, alternative therapy, counselling, behaviour modification, and psychiatric support is provided to the child during the period the child is kept in the place of safety.
19. It would also be pertinent to refer to Section 21 of the Act of 2015 which clearly lays down that no child in conflict with law shall be sentenced to death or life imprisonment without the possibility of release whether tried under the Act or under the IPC, or any other law.”
5. LALU KUMAR @ LAL BABU @ LALLU v. STATE OF BIHAR5 (High Court of Judicature At Patna)5| 01-10-2019
In this case High court of Patna, elaborating on section 20 of Juvenile Justice (Care and Protection of Children) Act,2015 , observed as follows:-
“135. Section 20 of the Act of 2015 provides that when a child in conflict with law attains the age of 21 years and is yet to complete term of his stay, then the Childrens Court shall provide for a follow-up by the probation officer or the District Child Protection Unit or a social worker or by itself. The purpose of follow-up is to evaluate if the child has undergone reformative changes and if the child can be a contributing member of the society. Such evaluation has to be based on the progress records of the child under Section 19(4) of the Act of 2015 along with evaluation. Such evaluation has to be made only if the child has attained the age of 21 years, but has yet to complete the term of stay.
136. Section 20 of the Act of 2015 empowers the Childrens Court to release a child from the Place of Safety without being sent to jail on attaining the age of 21 years. Now, at this stage, what would be relevant to be kept in mind is that though heinous offences include offences for which the minimum punishment under the Indian Penal Code or any other law is imprisonment for 7 years or more, on attaining age of 21 years, the Childrens Court may release the child on such condition as it deems fit which includes appointment of a monitoring authority for the remainder of the prescribed term of stay. Thus, the minimum imprisonment of 7 years or more in the definition of heinous offences is for the purpose of determining as to which matters may be transferred to the Childrens Court.”
6. Naman v. State of Haryana6 (High Court Of Punjab And Haryana) | 14-09-2020
The High court of Punjab and Haryana granted to the juvenile by following the Apex court precedent that even if bail is not granted, the child cannot be kept in jail or police lockup and has to be kept in an observation home or place of safety.
“12. The Apex Court in the case of Re Exploitation of Children In Orphanage In the State of Tamil Nadu (supra) held as under :
“7. Sub-section (1) makes it absolutely clear that a child alleged to be in conflict with law should be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person. The only embargo created is that in case the release of the child is likely bring him into association with known criminals or expose the child to moral, physical or psychological danger or where the release of the child would defeat the ends of justice, then bail can be denied for reasons to be recorded in writing. Even if bail is not granted, the child cannot be kept in jail or police lockup and has to be kept in an observation home or place of safety.
8. All JJBs in the country must follow the letter and spirit of the provisions of the Act. We make it clear that the JJBs are not meant to be silent spectators and pass orders only when a matter comes before them. They can take note of the factual situation if it comes to the knowledge of the JJBs that a child has been detailed in prison or police lock up. It is the duty of the JJBs to ensure that the child is immediately granted bail or sent to an observation home or a place of safety. The Act cannot be flouted by anybody, least of all the police.”
13. In view of the above, the impugned orders dated 20.12.2019 and 13.01.2020 are set aside and the petitioner is directed to be released on bail subject to furnishing bail/surety bonds to the satisfaction of the Principal Magistrate”