LawDistill
Supreme Court of India

ABUZAR HOSSAIN @ GULAM HOSSAIN vs STATE OF WEST BENGAL on 10 October, 2012

Cites 7 provisionsCites 2 judgmentsCited by 0
Crl.A. No.-001193-001193 - 2006Official PDFBench Rajendra Mal Lodha, Tirath Singh Thakur, Anil Ramesh DaveAdvocates RAUF RAHIM | ABHIJIT SENGUPTA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1193 OF 2006
Abuzar Hossain @ Gulam Hossain …. Appellant
Versus
State of West Bengal ….Respondent
WITH
CRIMINAL APPEAL NO. 1397 OF 2003
SLP (Crl.) NO. 1451 OF 2003
R.P. (Criminal) No. 390 OF 2010 IN SLP(Crl.) No. 2542 OF 2010
SLP(Crl.) NO. 8768 OF 2011
SLP(Crl.) NO. 8855 OF 2011
CRIMINAL APPEAL NO. 654 OF 2002
SLP (Crl.) No. 616 OF 2012
JUDGMENTJUDGMENT
R.M. Lodha, J.
Delinquent juveniles need to be dealt with differently from
adults. International covenants and domestic laws in various countries
have prescribed minimum standards for delinquent juveniles and
juveniles in conflict with law. These standards provide what orders
may be passed regarding delinquent juveniles and the orders

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