I have had the advantage of going through the order
proposed by my esteemed brother R.M. Lodha J., which
summarises the legal position with remarkable lucidity.
While I entirely agree with whatever is enunciated in the
judgment proposed by my erudite colleague, I wish to add
a few lines of my own confined to the proposition stated in
Para 36 (IV) of the judgment. In that paragraph of the
order fall cases in which the accused setting up the plea of
juvenility is unable to produce any one of the documents
referred to in Rule 12(3)(a) (i) to (iii) of the Rules, under
the Act, not necessarily because, he is deliberately
withholding such documents from the court, but because,
he did not have the good fortune of ever going to a school
from where he could produce a certificate regarding his
date of birth. Para 36 (IV) sounds a note of caution that an
affidavit of a parent or a sibling or other relative would not
ordinarily suffice, to trigger an enquiry into the question of
juvenility of the accused, unless the circumstances of the
JUDGMENTcase are so glaring that the court is left with no option
except to record a prima facie satisfaction that a case for
directing an enquiry is made out. What would constitute a
‘glaring case’ in which an affidavit may itself be sufficient to
direct an inquiry, is a question that cannot be easily
answered leave alone answered by enumerating
exhaustively the situations where an enquiry may be
justified even in the absence of documentary support for
the claim of juvenility. Two dimensions of that question
may all the same be mentioned without in the least
confining the sweep of the expression ‘glaring case’ to a
strait-jacket formulation. The first of these factors is the
most mundane of the inputs that go into consideration
while answering a claim of juvenility like “Physical
Appearance” of the accused made relevant by Rule 12(2) of
the Rules framed under the Act. The Rule reads:
“12. Procedure to be followed in determination of
Age. –
(1) xxxx
(2) The Court or the Board or as the case may be
the Committee shall decide the juvenility or otherwise
of the juvenile or the child or as the case may be the
juvenile in conflict with law, prima facie on the basis of
physical appearance or documents, if available, and
send him to the observation home or in jail.”
Physical appearance of the accused is, therefore, a consideration that ought to permeate every determination
under the Rule aforementioned no matter appearances are
at times deceptive, and depend so much on the race or the
region to which the person concerned belongs. Physical
appearance can and ought to give an idea to the Court at
the stage of the trial and even in appeal before the High
Court, whether the claim made by the accused is so absurd
or improbable that nothing short of documents referred to
in this Rule 12 can satisfy the court about the need for an
enquiry. The advantage of “physical appearance” of the
accused may, however, be substantially lost, with passage
of time, as longer the interval between the incident and the
court’s decision on the question of juvenility, the lesser the
chances of the court making a correct assessment of the
age of the accused. In cases where the claim is made in
this Court for the first time, the advantage is further
reduced as there is considerable time lapse between the
incident and the hearing of the matter by this Court.
The second factor which must ever remain present in
the mind of the Court is that the claim of juvenility may at
JUDGMENTtimes 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
maintained by Municipal Authorities, Panchayats or
hospitals nor any certificate from any school, as the
accused 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 registration of births and deaths may not be
maintained and if maintained may not be regular and
accurate, and at times truthful. Rule 12(3) of the Rules
makes only three certificates relevant. These are
enumerated in Sub-Rule 3(a)(i) to (iii) of the Rule which
reads as under:
“(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 municipal authority or a
panchayat; JUDGMENT
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 in the ‘absence’ of the
certificates. 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 duly constituted Medical Board,
which will declare the age of the juvenile or child.
In case exact assessment of the age cannot be
done, the Court, or the Board or, as the case may
be, the Committee, for the reasons to be recorded
by them, may, if considered necessary, give
benefit to the child or juvenile by considering
his/her age on lower side within the margin of one
year.”
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:
“Being away from a place or person; time of being
away; non-existence or lack of; inattenation due to
thought of other things.”
Black’s Law Dictionary also explains the meaning of
‘absence’ as under:
“1. The state JUDGMENTof 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.”
It is axiomatic that the use of the expression and the
context 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 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 powers and discretion with a certain amount of
insight into the realities of life. 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 in the world, springs from
JUDGMENTpoverty 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 National Crime Records
Bureau (NCRB), Ministry of Home Affairs, reveal that poor
education and poor economic set up are 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 (6,122) or educated only till the
primary level (12,803). Further, 56.7% of the total
juveniles arrested fell into the lowest income 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
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 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.”
JUDGMENT 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
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. If one were to adopt a wooden approach, one
could say 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 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 may not be generally
JUDGMENTaccepted 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
additional information considered relevant including
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
7A ought to be conducted. It will eventually depend on how
the court evaluates such material for a prima facie
conclusion that the Court may or may not direct an enquiry.
With these additions, I respectfully concur with the
judgment proposed by my esteemed Brother Lodha J.
(T.S. Thakur)
New Delhi October 10, 2012