IMPORTANT POINT
Juvenile Justice Act imposes a duty upon competent authority to make an enquiry as to the age of that person who appears to be a child.

Headnote:Bihar Children Act, 1982—Sections 3 and 32—Appellant was convicted under Sections 302 and 201 IPC by trial Court and conviction upheld by High Court—Appeal—Contention that appellant on the date of commission of offence was minor—Offence was committed before Juvenile Justice Act, 1986 came into force, provision of which would have no application—Under Bihar Children Act, a child meant a boy who had not attained 16 years of age—Appellant was examined in 1999 u/s 313 Cr.P.C. where his age was estimated to be 28 years—No plea that accused was Juvenile was taken before trial Court and Court at no stage had gone into that question—Statute imposed duty on competent authority to make inquiry as to the age of that person who appeared to be child—Provisions of beneficial legislation should ordinarily be given effect to—Appellant though literate and presumably attended some school but no material as regards age was placed—Determination of age of appellant as on the date of commission of offence to be done afresh by Sessions Judge.
       Held : The statute, therefore, has imposed a duty upon the competent authority to make an enquiry as to the age of that person who appears to be a child to him. No such enquiry was, however, made presumably because no such plea was raised. At that time, it also might not have occurred to the court that the Appellant was a child. Section 33 of the Act lays down the circumstances which are required to be taken into consideration in making an order under Section 32 of the said Act. In the year 1999, evidently the trial court did not consider the question of estimating his age in terms of the provisions of the Act.(Para 14)
       The provisions of a beneficial legislation should ordinarily be given effect to. However, we may notice that the appellant is literate. Presumably he attended some school. However, no certificate of his date of birth or any other proof as regard his date of birth is available on records. No other material apart from the estimate of the court has been brought to our notice. In the absence of any material on record, we cannot arrive at a definite conclusion that the appellant as on the date of commission of the offence was a child within the meaning of the said Act.(Para 16)
       We are, however, not oblivious of the decision of this Court in Bhola Bhagat v. State of Bihar [(1997) 8 SCC 720], wherein an obligation has been cast on the court that where such a plea is raised having regard to the beneficial nature of the socially-oriented legislation, the same should be examined with great care. We are, however, of the opinion that the same would not mean that a person who is not entitled to the benefit of the said Act would be dealt with leniently only because such a plea is raised. Each plea must be judged on its own merit. Each case has to be considered on the basis of the materials brought on records. The aforementioned decisions have been noticed by this Court in Zakarius Lakra and Others v. Union of India and Another [(2005) 3 SCC 161], wherein a Bench of this Court while entertaining an application under Article 32 of the Constitution of India opined that although the same was not maintainable, having regard to the decision of this Court in Rupa Ashok Hurra v. Ashok Hurra [(2002) 4 SCC 3880, the review petition should be allowed to be converted into a curative petition. [See also Raj Singh v. State of Haryana - (2000) 6 SCC 759]. We, therefore, are of the opinion that the determination of the age of the appellant as on the date of the commission of the offence should be done afresh by the learned Sessions Judge. For the reasons aforementioned, this appeal is allowed and the matter is remitted to the learned Sessions Judge with a direction to consider the matter as regard the age of the appellant as on the date of commission of the offence and in the event, he is found to be a child and/or juvenile within the meaning of the Act and the Juvenile Justice Act to deal with the accused accordingly. If he is found not to have been a child as on the date of the commission of the offence, the present conviction will stand.(Paras 20 to 23)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. The appellant herein was convicted for commission of an offence punishable under Sections 302 and 201 of the Indian Penal Code (for short, IPC) and sentenced to undergo rigorous imprisonment for life.

3. The case of the prosecution is as under:

A First Information Report was lodged by the informant Lal Hare Murari Nath Sahdeo at about 14.00 hrs. on 19.11.1985 alleging that at about 07.30 A.M. on the previous day i.e. 18.11.1985 Fagua Mahto, deceased, took his five bullocks for grazing along with the cattle of other villagers, as he was a herdsman. He brought the bullocks earlier after grazing. The informant is said to have not found two of his bullocks in the said evening. He enquired thereabout; whereupon Fagua Mahto informed him that two oxen were taken by Jitendra Ram @ Jitu Harizan, the appellant herein for thrashing paddy. He went to the house of the accused, who denied to have taken the said two oxen. Lakhan Lohar (PW-13), however, at about 07.30 P.M. on the same evening informed Lal Ranvijay Nath Sahdeo (PW-8), the cousin of the first informant that the appellant herein sold the said oxen in the market to Sahban Ansari and Hanif Ansari, who examined themselves as PW-18 and PW-19 respectively. The appellant, however, denied the sale of two oxen to the said persons and threatened the first informant. Fagua Mahto went missing. When the first informant visited the house of Harnif Ansari and Sahban Ansari, he was informed that the appellant had taken away the said two oxen and kept his cycle as a security. On suspicion that something might have happened to Fagua Mahto, a search was made and the appellant was brought to the school of the village. He was interrogated, whereupon he is said to have confessed to have murdered Fagua Mahto and concealed his dead body in a pit of Chamautha River Tetardaht’. Acting on the basis of the said statement of the appellant about 100 villagers are said to have reached the place of occurrence where the dead body of the said Fagua Mahto was allegedly concealed by the appellant. The appellant was thereafter handed over to Mukhia Lal Gopal Nath Sahdeo, who examined himself as PW-5. Before the said witness also the appellant is said to have confessed his guilt. A First Information Report was, thereafter, lodged. He in the trial eventually was found guilty.

4. The appeal preferred by him was also dismissed. He is, thus, before us.

5. The sole contention raised by Mr. Shekhar Prit Jha, the learned counsel for the appellant, is that the appellant on the date of commission of the said offence was a minor within the meaning of the provisions of the Bihar Children Act, 1982 (for short, ‘the Act’). The learned counsel would contend that the appellant had disclosed his age at the first opportunity, namely, when the bail petition was moved before the Patna High Court and, inter alia, relying on or on the basis of the said statement he was released on bail by an order dated 09.05.1986. It was further submitted that even while the appellant was examined by the learned trial judge under Section 313 of the Code of Criminal Procedure (Cr.P.C.) his age was estimated as 28 years. The High Court also in its impugned judgment noticed the submissions made to the effect that having regard to the said estimate of age being 28 years by the trial court on 17.12.1998 while the appellant was being examined under Section 313 Cr.P.C. he was a juvenile as on the date of commission of the offence i.e. 18.11.1985. The said question has, however, not been gone into by the High Court.

6. According to the learned counsel if once it is found that the appellant was a juvenile within the meaning of Section 2(h) of the Juvenile Justice Act, 1986 or a child under the provisions of the Act, he was entitled to the protection thereunder and in that view of the matter, he could have also been sent to the Juvenile Home in terms of Section 9, or Special Home in terms of Section 10, or Observation Home

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2006 Supreme(SC) 386

IMPORTANT POINTJuvenile Justice Act imposes a duty upon competent authority to make an enquiry as to the age of that person who appears to be a child.

Cases Referred (6)

IMPORTANT POINT
Juvenile Justice Act imposes a duty upon competent authority to make an enquiry as to the age of that person who appears to be a child.