ARNIT DAS v. STATE OF BIHAR

Citation: [2000] SUPP. 1 S.C.R. 69

Court: Supreme Court of India

Bench: K.T. THOMAS, R.C. LAHOTI

Judgment text

ARNIT DAS v. STATE OF BIHAR MAY 9, 2000 [K. T. THOMAS AND R. C. LAHOTI, JJ. ] Criminal Law : Juvenile Justice Act, 1986 : Section 2(h) and 32-Juvenile-Age-Determination of~rucial date- Held :. The data on which the accused is brought before the competent authority is date with reference to which the age of the person has to be determined-The date ofcommission ofthe offence is irrelevant in this regard. Section 32-Juvenile-Age-Determination of-Relevant factors to be considered-On the basis ofrelevant record Magistrate concluded that the accused was above 16 years and, therefore, not required to be tried by Juvenile Court-Such finding was upheld by Sessions Court and High Court- Correctness of-Held: Supreme Court's interference not cal/. ;dfor. Constitution of India, 1950 : Article 141-Ratio decidendi-Rule of sub silentio--A decision not expressed on a conscious consideration ofan issue is not the ratio decidendi and cannot have binding effect.

Interpretation of Statutes: Internal Aids-Preamble-It is permissible to look into the Preamble if the language is ambiguous so as to determine the legislative intent. Doctrines: Doctrine ofsub silentio. Words and Phrases: "Juvenile" and "neglected juvenile"-Meaning of -In the context of S. 2 of the Juvenile Justice Act, 1986. The appellant was arrested in connection with an offence under Section 302 of the Penal Code, 1860 and was produced before the Additional Chief Judicial Magistrate (ACJM), who after recording his statement under Section 164 of the Criminal Procedure Code, 1973, remanded him to juvenile home. The appellant claimed that he was a juvenile and, therefore, entitled to protection under thE: Juvenile Justice Act, 1986. The ACJM dir,ected an enquiry to be held under Section 32 of the Act. The appellant was referred to examination by a medical Board.

On receipt of the report of the Medical Board and on receiving such other evidence as was adduced on behalf of the appellant, the ACJM concludes that the appellant was above 16 years of age on the date of the occurrence and, therefore, was not required to be tried by a Juvenile Court This finding was upheld by the Sessions Court in appeal and the High Court in revision. Hence this appeal The following questions arose before this Court :- Firstly, by reference to which date the age of the appellant is required to be determined for finding out whether he is a juvenile or not. Secondly, whether the fmding as to age, as arrived at by the Courts below and maintained by the High Court, can be sustained. Dismissing the appeal, this Court HELD: 1. 1. The scheme of the Juvenile Justice Act, 1986 contemplates its applicability coming into play only when the person may appear or be brought before the competent authority.

APolice Officer or a Magistrate who is not empowered to net or cannot act as a competent authority has to merely form an opinion guided by the apparent age of the person and in the event of forming an opinion that he is a juvenile, he has to forward him to the competent authority at the earlier subject to arrangements for keeping in custody and safety of the person having been made for the duration of time elapsing in between. The competent authority shall proceed to hold enquiry as to the age of that person for determining the same by reference to the date of the appearance of the person before it or by reference to the date when the person was brought before it under any of the provisions of the Act It is irrelevant what was the age of the person on the date of commission of the offence. [78-D; 79-8-C) . 1. 2.

The use of the word 'is' at two places in sub-section (1) ofSection 32 of the Act read in conjunction with 'a person brought before it' also suggest that the competent authority is required to record the finding by ARNIT DAS v. STATE OF BIHAR 71 reference to an event in presenting before it, Le. by reference to the date when the person is brought before it and not by reference to a remote event Le. the date on which the offence was. committed. (79-D-E) 2. 1. The term 'juvenile justice' before the onset ofdelinquency may refer to social justice; after the onset ofdeliquency, it refers to justice in the normal juridical sense. The Juvenile Justice Act provides for justice after the onset ofdelinquency. The societal factors leading to the birth ofdelinquency and the preventive measures, which would check juvenile delinquency, legitimately fall within the scope of social justice.

Once a boy or a girl has assumed delinquency, his or her treatment and trial at the hands ofthe justice delivery system is taken care of by the provisions of the Juvenile Justice Act. The view so taken finds support from the Preamble to the Act and tb y Member States in a manner which is compatible with their respective legal systems and concepts: (a) A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult. (b) An offence is any behaviour (act or omission) that is punishable by law under the respective legal systems; (c) A juvenile offender is a child or young person who is alleged to have committed or who has been found to have committed an offence. 2. 3.

Efforts shall be made to establish, in each national jurisdiction, a set of Jaws, rules and provisions specifically applicable to juvenile offenders and institutions and bodies entrusted with the functions of the administration ofjuvenile justice and designed: (a) to meet the varying needs ofjuvenile offenders, while protecting thdr basic rights; (b) to meet the needs of society; and (c) ·to implement the following rules thoroughly and fairly. xxx xxx xxx xxx xxx xxx 5. Aims ofjuvenile justice 5. 1. The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence. " [Source - Juvenile Justice Act by Asutosh Mookerjee published by S. C. Sarkar & Sons, pp. 20-21] The tenn 'juvenile justice' before the onset of delinquency may refer to social justice; after the onset of delinquency, it refers to justice in its normal juridical sense.

(See - "Juvenile Justice : Before and after the onset of delinquency", working paper prepared by the Secretariat for 6th U. N. Congress on the Prevention of Crime and the Treatment of Offenders, quoted at page 4 of The Treatise, Ved Kumari,. ibid). The Juvenile Justice Act provides for justice after the onset of delinquency. The societal factors leading to birth of delinquency and the preventive measures which would check juvenile delinquency legitimately fall within the scope of social justice. Once a boy or a girl has assumed delinquency, his or her treatment and trial at the hands of justice delivery system is taken care of by the provisions of the Juvenile Justice Act. The view so taken finds support from the preamble to the Act and the statement of objects and reasons. The preamble speaks for the Act making provisions for the things post- delinquency. Several expressions employed in the statement of objects and reasons vocally support this view.

The Act aims at laying down a uniform juvenile justice system in the country avoiding lodging in jail or police lock-up ofchild; and providing for prevention and treatment ofjuvenile delinquency, for care, protection, etc. post- juvenility. In short the field sought to be covered by the Act is not the one which had led to juvenile delinquency but the field when juvenile having committed a delinquency is placed for being taken care of post-delinquency. During the course of hearing, the Court posed a question to Shri U. R. Lalit, the learned senior counsel for the appellant - What happens if a boy or a girl ofjust less than 16 or 18 years of age commits an offence and then leaves the country or for any reasons neither appears nor is brought before the competent authority until he or she attains the age of say 50 years ?

If the interpretation suggested by the learned senior counsel for the appellant were to be accepted, he shall have to be sent to a juvenile home, special home or an observation home or entrusted to an after care organisation where there would all be boys and girls of less than 16 or 18 years of age. Would he be required to be dealt by a Juvenile Welfare Board or a Juvenile Court ? The learned senior counsel, with all the wits at his command, had no answer till the end and had to give up ultimately. We ate, therefore, clearly ofthe opinion that the procedure prescribed by the provisions of the Act has to be adopted only when the competent authority finds the person brought before it or appearing before it is found to be under 16 years of age if a boy and under 18 years of age if a girl on the date of being so brought or such appearance first before the competent authority.

The date of the commission of offence is irrelevant for finding out whether the person is a juvenile within the meaning of Clause (h) of Section 2 of the Act. If that would have been the intendment of the Parliament, nothing had prevented it from saying so specifically. Section 3 of the Act. also provides a clue to the legislative intent. It provides for an enquiry initiated against the juvenile being continued and orders made thereon even if such person had ceased to be a juvenile during the course of such enquiry. There would have been no need of enacting Section 3 if only the age of the juvenile would have been determinable by reference to the date of the offence. Shri U. R. Lalit, the learned senior counsel for the appellant invited our attention to Santanu Mitra v. State ofWB. , [1998) 5 SCC 697, Bhola Bhagat v. State ofBihar, [1997) 8 SCC 720 and Gopinath Ghosh v. State ofWB. , [1984) Supp.

SCC 228 and to a number of othi:r decisions which we do not propose to catalogue separately for most of them have been referred to in paras 14 and 15 of the decision in Bhola Bhagat (Supra). What has been emphasized by Shri Lalit is that in all these cases the question whether the person, arrayed as accused/appellant before the Court, was a juvenile or not was decided by taking into consideration the age ofthe accused on the date of the occurrence or the date of the commission of the offence. We have carefully pursued all these decisions. In all these cases the counsel for the contesting parties before the Court have made their submissions by assuming that the date of the offence was the relevant date for determining the age of the juvenile. Accordingly this Court, having examinc:d the facts of each case, recorded a finding as to the age of the accused on the date of the occurrence of the offence.

Generally speaking these cases are authorities for the propositions that (i) the technicality of the accused having not claimed the benefit of the provisions of the Juvenile Justice Act at the earliest opportunity or before any of the Courts below should not, keeping in view the intendment of the legislation, come in the way of the benefit being extended to the accused appellant even if the plea was raised for the first time before this Court; (ii) a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the same evidence, the Court should lean in favour of holding the accused to be a juvenile in border line cases; and (iii) the provisions ofthe Act are mandatory and while implementing the provisions ofthe Act, those charged with responsibilities of implementation should show sensitivity and concern for a juvenile.

However, in none of the cases the specific issue - by reference to which date (the date of the offence or the date of production of the person before the competent authority), the Court shall determine whether the person was a juvenile o~ not, was neither raised nor decided. A decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be - a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not ratio decidendi. This is the rule of sub-silentio,. in the technical sense when a particular point of law was not consciously determined. (See State of U. P. v. Synthetics & Chemicals Ltd. , [1991] 4 sec 138, para41. Full Bench decision ofthe High Court ofCalcutta in Dilip Saha v. State ofWest Bengal, AIR (1978) Calcutta 529 and Full Bench decision in Krishna Bhagwan v. State ofBihar, .

AIR (1989) Patna 217 were strongly relied on by the learned senior counsel, Shri Lalit submitting that the question specifically arising for consideration before this Court was also before the two High Courts. We have examined the two decisions. In Dilip Saha (supra) the Calcutta High Court, interpreting the provisions of WB children Act, 1959 which is a pari materia enactment, has taken the view that the age of the accused at the time of the commission of the offence is the relevant age for attracting the provisions ofthe WB Children Act, 1959 and not his age at the time oftrial. Vide paras 22 to 24 the Full Bench has assigned two reasons for taking the view which it has done which in our opinion are both erroneous. One reason is that according to Section 24 of that Act a child cannot be sentenced to death or ordinarily to imprisonment then denying the benefit of the provisions of the Act to a person who was a child on the date of the offence but had.

ceased to be so on the date of commencement ofthe inquiry or trial, may result in the child being sentenced to death or imprisonment for life consequent upon his being held guilty which would be violative ofArticle 20 (I) of the Constitution which prohibits any person on conviction for any offence being subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The High Court has overlooked that Article 20 (I) of the Constitution would be attracted only if the applicability of the Act was determined by reference to the date of the offence but if it was determined by reference to the date of the commencement of the inquiry or trial then. Article 20 (1) would not apply.

The second reason assigned by the High Court is that the Investigating Officer may by delaying investigation and putting up of the accused for trial deny the accused benefit of the provisions of the Act and thereby defeat the object and purpose of the Act. Suffice it to say that such an occasion would not arise at all because before the commencement of the trial there would be some point of time when the accus(:d shall have to be brought before the competent autho:rity and that date would be determinative of the fact whether the accused was a juvenile or not. As to Krishna Bhagwan 's case decided by Patna High Court suffice it to observe that the opening part of the judgment itself indicates that the question posed before us was not a question arising before the High Court. The two questions considered and answered by the High Court were different.

The High Court was seized of the issues as to what would be the impact of the event of the child ceasing to be so before the conclusion ofthe trial and the effect ofthe plea under the Juvenile Justice Act, 1986 having not been taken before the trial court and the trial having proceeded oblivious of the provisions of the Act. During the course of discussion the Full Bench has observed that the juvenile is one who was below a certain age on the date of the commission of the offence but the observation is also based on an as! ;umption and is certainly not a point deliberated upon before the High Court. All this exercise would have bee:n avoided ifonly the Legislature would have taken care not to leave an ambiguity in the definition of juvenile and would have clearly specified the point of time by reference to which the age was to be determined to find a person a juvenile. The ambiguity can be resolved by taking into consideration the Preamble and the Statement of Objects and Reasons.

The Preamble suggests what the Act was intended to deal with. If the language used by Parliament is ambiguous the Court is permitted to look into the preamble for construing the provisions of an Act (Mis. Burrakur Coal Co. Ltd. & Mis. East Indian Coal Co. Ltd. v. The Union ofIndia and others, AIR (1961) SC 954). A preamble of a statute has been said to be a good means of finding out its meaning and, as it were, the key of understanding of it, said this Court in A. Thangal Kunju Musaliar v. M Venkatachalam Potti, AIR (1958) SC 246. The Preamble is a key to un-lock the legislative intent. If the words employed in an enactment may spell a doubt as to their meaning it would be useful to so interpret the enactment as to harmonise it with the object which the Legislature had in its view.

The Legislative aims and objectives set out in the earlier part of this judgment go to show that this Legislation has been made for taking care of the care and custody of a juvenile during investigation, inquiry and trial, i. e. , from a point of time when the juvenile is available to the law administration and justice delivery system; it does not make any provision for a person involved in an offence by reference to the date of its commission by him. The long title of the Act too suggests that the content of the Act is the justice aspect relating to juveniles. We make it clear that we have not dealt with the provisions of Chapter VI dealing with special offences in respect ofjuveniles.

Prima facie, we feel that the view which we have taken would create no difficulty even in assigning meaning to the term juvenile as occurring in Chapter VI(Sections 41 to 45) of the Act because a juvenile covered by any of these provisions is likely to fall within the definition of neglected juvenile as defined in clause (I) of Section 2 who shall also have to be dealt with by a Juvenile Board under Chapter III of the Act and the view taken by us would hold the field there as well. However, we express no opinion on the scope of Chapter VI of the Act and leave that aspect to be taken care of in a suitable case. At any rate in the present context we need not vex our mind on that aspect. Section 2 which defines 'juvenile' and 'neglected juvenile' itself beg'ris by saying that the words defined therein would have the assigned meaning 'unless the context otherwise requires'.

So far as the present context is concerned we are clear in our mind that the crucial date for determining the question whether a person is juvenile is the date when he is brought before the competent authority. So far as the finding regarding the age of the appellant is concerned it is based on appreciation of evidence and arrived at after taking into consideration of the material available on record and valid reasons having been assigned for it. The finding arrived at by the learned A. C. J. M. has been maintained by the Sessions Court in appeal and the High Court in revision. We fmd no case having been made out for interfering therewith. For the foregoing reasons the appeal is dismissed. v. s. s. Appeal dismissed.