PRATAP SINGH v. STATE OF JHARKHAND AND ANR

Citation: [2005] 1 S.C.R. 1019

Court: Supreme Court of India

Bench: N. SANTOSH HEGDE, S.N. VARIAVA, B.P. SINGH, H.K. SEMA, S.B. SINHA

Case summary

PRATAP SINGH v. STATE OF JHARKHAND AND ANR.pdf

Judgment text

PRATAP SINGH v. STATE OF JHARKHAND AND ANR. FEBRUARY 2, 2005 [N. SANTOSH HEGDE, S. N. VARIAVA, B. P. SINGH, H. K. SEMA AND S. B. SINHA, JJ. ] Juvenile Justice Act, 1986-Sections 2(h), 3, 18, 26 and 32 Juvenile Justice (Care and Protection ofChildren) Act, 2000-Sections 2(k), 20 and 69. Juvenile offender-Age-Determination-Reckoning date-Held: The reckoning date for determining the age ofthe Juvenile offender is the date of offence and not the date when he is produced before the Authority/Court. 2000 Act-Applicability of-To the cases initiated under 1986 Act, pending on the date of enforcement of 2000 Act-Held: The Act of 2000 would be applicable to such cases only when the accused had not attained 18 years ofage on the date ofits enforcement-Model Rules framed by Central Government-Rule 62-United National Standard Minimum Rules for Administration ofJuvenile Justice, 1985. The questions for determination in the present appeal before the Constitution Bench were : 1.

What would be the reckoning date in determining the age of p juvenile offender, viz. , date when produced in a Court, as had. been held by this Court in Amit Das v. State ofBihar, (2000) 5 SCC 488 or the date on which the offence was committed as had been held in Umesh Chandra v. State ofRajasthan, (1982( 2 SCC 202? 2. Whether Juvenile Justice (Care and Protection of Children) Act, 2000 would be applicable to the case, proceeding whereof was initiated ' , under Juvenile Justice Act, 1986 and was pending on the date of enforcement of the Act of 2000? Disposing of the appeal, the Court HELD : Per Sema, J. (for himself N Santosh Hegde, S. N Variava and B. P. Singh, JJ. ) : 1. 1. The reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he is produced before the Authority or in the Court. (1039-GI 1. 2.

The whole object of Juvenile Justice (Care and Protection of Children) Act, 2000 is to provide for the care, protection, treatment, development and rehabilitation of neglected delinquent juveniles. It is a beneficial legislation aimed at to make available the benefit of the Act to the neglected or delinquent juveniles. The interpretation of the Statute of beneficial legislation must be to advance the cause of legislation to the benefit for whom it is made and not to frustrate the intendment of the legislation. l1031-0-EI 1. 3. The distinction between the definition of 'delinquent juvenile' under Juvenile Justice Act, 1986 and Juvenile Justice (Care and Protection of Children) Act, 2000 is that in 1986 Act "juvenile in conflict with law" is absent. The definition in 1986 Act is referable to an offence said to have been committed by him. It is the date of offence that he was in conflict with law.

When a juvenile is produced before the competent Authority and or Court he has not committed an offence on that date, but he was brought before the Authority for the alleged offence which he has been found to have committed. Therefore, what was implicit in 1986 Act has been made explicit in 2000 Act. (1031-F-AJ 1. 4. It cannot be said that the use of the word is in two places of Section 32 of 1986 Act suggests that for determination of age of juvenile the date of production would be reckoning date as the inquiry with regard to his age begins from the date he is brought before the Court and not otherwise. The definition of delinquent juvenile means a juvenile who has been found to have committed an offence. The word is employed in Section 32 is referable to a junnile who is said to have committed an offence on the date of the occurrence. The word is has been used in more than one place in Section 18of1986 Act also.

Often than not, an offender is arrested immediately after an offence is alleged to have been committed or some t;me even arrested on the spot. This would also show that the arrest and release on bail and custody of juveniles, the reckoning date of a juvenile is the date of an offence and not the date of production. Furthermore, Section 32 of 1986 Act also does not envisage the production of a juvenile PRATAP SINGH v. STATE OF . IHARKHAND 1021 in the Court. 11032-E-F; 1033-D-Fl 1. 5. A conjoint reading of Sections 3 and 26, preamble, aims and objects of 1986 Act leaves no matter of doubt that the legislature intended to provide protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication thereof. Umesh Chandra v. State ofRajasthan, (1982( 2 SCC 202, affirmed. Amit Das v. State ofBihar. , (20001 5 SCC 488, overruled. 2. 1.

The 2000 Act would be applicable in a pending proceeding in any Court/Authority initiated under the l 986 Act and is pending when the 2000 Act came into force and the person had not completed 18 years of age as on the date of enforcement of 2000 Act. (1039-H; 1040-Al 2. 2. Although the 1986 Act was repealed by the 2000 Act, anything done or any action taken under the 1986 Act is saved by sub-section (2) of Section 69 of 2000 Act, as if the action has been taken under the provisions of the 2000 Act. (1036-D-El 2. 3. Section 20 of 2000 Act deals with the special provision in respect of pending cases and begins with non-obstante clause. The proceedings in respect of a juvenile pending in any Court referred to in Section 20 is relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term "an; court" would include even ordinary criminal courts.

If the person was a "juvenile" under the 1986 Act the proceedings would not be pending in criminal courts. They would be pending in criminal courts only if the boy had crossed 16 years or girl had crossed 18 years. This shows that Section 20 refers to cases where a person had ceased to be a juvenile under the j 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that Court as if the 2000 Act has not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile. Section 16 of the 2000 Act is identical to Section 22 of the 1986 Act. Similarly Section 15 of the 2000 Act is in pari materia with Section 21 of the 1986 Act.

Thus, such an interpretation does not offend Article 20(1) of the Constitution of India and the juvenile is not subjected to any penalty greater than that which might have been inflicted on him under the 1986 Act. 11038-B-EJ 2. 4. Rule 62 of Model Rules framed by Central Government also indicates that the intention of the Legislature was that the provisions of the 2000 Act were to apply to pending cases provided, the date on which the 2000 Act came into force, the person was a "juvenile" within the meaning of the term as defined in the 2000 Act i. e. he/she had not crossed 18 years of age. 11039-CI Upendra Kumar v. State ofBihar; Bhola Bhagat v. State ofBihar, [1997) 8 SCC 720; Gopinath Ghosh v. State ofWB. , [1984) Supp. SCC 228; Bhoop Ram v. State ofU. P. , [1989) 3 SCC 1 and Pradeep Kumar v. State ofU. P. , [1995) Supp. 4 SCC 419, referred to. [1039-D-F] Per Sinha, J (Partly dissenting) : I. I.

In terms of the 1986 Act, the age of the offender must be reckoned from the date when the alleged offence was committed. Juvenile Justice (Care and Protection o. f Children) Ace, 2000 is not only a beneficient legislation, but also a remedial one. The Act aims at grant of care, protection and rehabilitation of a juvenile vis-a-vis the adult criminals. Having regard to Rule 4 of United Nations Standard Minimum Rules for the Administration of Juvenile Justice, it must also be borne in mind that the moral and psychological components of criminal responsibility was also one of the factors in defining a juvenile. [1052-H; 1053-A; 1063-H; 1064-AJ 1. 2. The meaning of the exp·ression 'Juvenile' used in a statute by reason of its very nature has to be assigned with reference to a definite date. The term 'Juvenile' must be given a definite connotation.

It was, having regard to the constitutional and statutory scheme, not necessary for the Parliament to specifically state that the age of juvenile must be determined as on the date of commission of the offence. The same is inbuilt in the statutory scheme. The statute must be construed having regard to the Scheme and the ordinary state of affairs and consequences flowing therefrom. [1053-B-DJ '" . 1. 3. Only because his age is to be determined in a case of dispute by tile 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, PRATAP SINGH v. STATE OF . IHARKHAND 1023 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 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. (I 054-E-GI Dilip Saha v. State ofWest Bengal, AIR(1978) Calcutta 529, referred to. 1. 4. The statute must be construed in such a manner so as to make it effective and operative on the principle of Vt res magis valeat quam pereat. The courts lean strongly against any constructions which tend to reduce a statute to a futility.

When two meanings, one making the statute absolutely vague, wholly intractable and absolutely meaningless and the other leading to certainty and meaningful are given, in such an event the latter should be followed. (1055-C-D) Tinsukhia Electric Supply Co. ltd v. State ofAssam and Ors. , (1989) 3 SCC 709; Andhra Bank v. B. Satyanarayana and Ors. , (2004) 2 SCC 657 and Indian Handicrafts Emporium and Ors. v. Union ofIndia and Ors. , (2003) 7 sec 589, referred to. 1. 5. The court in an appropriate case is not powerless to pass an order as is contemplated under the statute if the situation so demands but ' ..... only because a person is produced before the Court after he attains majority either on his own volition or by reason of machinations adopted by the investigating agency, the same would not be determinative of the fact that the said person is to be differently dealt with. Law favours strict adherence of the procedures subject to just exceptions. (1055-G-HI Amit Das v.

State ofBihar, 120001 5 SCC 488, overruled. 1. 6. The definition of 'Juvenile' under the 1986 Act, of course refers to a person who has been found to have committed offence but the same has been clarified in the 2000 Act. The provisions of 1986 Act, sought to protect not only those juveniles who have been found to have committed an offence but also those who had been charged therefor. In terms of Section 3 of the 1986 Act as well as 2000 Act when an enquiry has betn initiated even if the juvenile has ceased to be so as he has crossed the age of 16 and 18 as the case may be, the same must be continued in respect of such person as if he had continued to be a juvenile. Section 3 of the 1986 Act therefore cannot be given effect to if it is held that the same only applied to post delinquency of the juvenile. 11055-E-FI 2. 1. The 2002 Act will have a limited application in the cases pending under the 1986 Act.

In terms of the 1986 Act, a person who was not juvenile could be tried in any Court. Section 20 of the Act of 2000 takes care of such a situation stating that despite the same the trial shall continue in that Court as if that Act has not been passed and in the event, he is found to be guilty of commission of an offence, a finding to that effect shall be recorded in the judgment of conviction, if any, but instead of passing any sentence in relation to the juvenile, he would be forwarded to the Board which shall pass orders in accordance with the provisions of the Act as if he has been satisfied on inquiry that a juvenile has committed the offence. A legal fiction has, thus, been created in the said provision. A + . · legal fiction must be given its full effect although it has its limitations. (1057-D-F( Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. , (2003] 2 SCC 111; /TW Signode India Ltd. v. Collector ofCentral Excise, (2003) 9 SCALE 720; Ashok Leyland Ltd. v.

State ofTamil Nadu and Anr. , (2004] 3 SCC I and Mis Maruti Udyog Ltd. v. Ram Lal (C. A. No. 2946 of 2002 decided by Supreme Court on 25. 1. 2005), referred to. 2. 2. Thus, by reason of legal fiction, a person, although not a juvenile, has to be treated to be one by the Board for the purpose of sentencing which takes care of a situation that the person although not a juvenile in terms of the 1986 Act but still would be treated as such under the 2000 Act for the said limited purpose. The Act provides for beneficent consequences and, thus, it is required to be construed liberally. (1057-H; 1058-A] 2. 3. A beneficent legislation should not be construed liberally so as ,. _ ' to bring within its fore a person who does not answer the statutory scheme. Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd. Baroda, ]2004] 5 sec 385, referred to. PRATAP SINGH v. STATE OF . IHARKl-IAND 1025 2. 4.

Section 20 of the Act of 2000 would, therefore, be applicable when a person is below the age of 18 years as on the date of enforcement of Act of2000. For the purpose of attracting Section 20 of the Act, it must be established that : (i) on the date of coming into force the proceedings in which the petitioner was accused was pending; and (ii) on that day he was below the age of 18 years. For the purpose of the said Act, both the aforementioned conditions are required to be fulfilled. 11058-D-EI 2. 5. The embargo of giving a retrospective effect to a statute arises only when it takes away vested right of a person. By reason of Section 20 of 2000 Act no vested right in a person has been taken away, but thereby only an additional protection has been provided to a juvenile. (1058-H; 1059-AI Rattan Lal v. State of Punjab, (19641 7 SCR 676; Basheer alias N. P. Basheer v. State ofKera/a, (200413 SCC 609; life Singh v. State ofHaryana and Ors. , JT (2004) 8 SC 589 and Dayal Singh v.

State of Rajasthan, JT (2004) Supp. I SC 37, referred to. Attorney General's Reference (No. 2of2001) (2004) 2 AC 72 and R. (on the application ofUttley) v. Secretary ofState for the Home Department, (2004) 4 All ER I, referred to. 2. 6. Interpretation of a statute depends upon the text and context thereof and having regard and object with which the same was made. The provision of the 2000 Act is furthermore a remedial statute. They are, thus, required to be given liberal construction. A remedial statute applied in a pending proceeding would not mean that thereby a retrospective effect and retroactive operation is being given thereto. (1061-E-FI Principles ofStatutory interpretation, by G. P. Singh Ninth Edition, 2004, page 733, referred to. 2. 7.

In a case where an additional protection had been granted pursuant to or in furtherance of the international treaties and keeping in view of the experience which had been gathered by the Parliament after coming into force of the 1986 Act, it should be read in such a fashion so that the extended benefit can be granted even to the juvenile under the 2000 Act. Furthermore, sub-section (2) of Section 69 provides that all proceedings shall be deemed to have been held under the new Act. This is also suggestive of the fact that the new Act would, to the aforementioned extent, apply to a pending proceeding which was initiated under the 1986 Act. 11061-G-H; 1062-AI 3. 1. The age of the delinquent juvenile cannot be determined in terms of the Model Rule 62. Any law mandating the court to take into consideration certain documents over others in determining an issue, must be provided for only by law.

Only a validly made law can take away the power of the court to appreciate evidence for the purpose of determination of such a question in the light of Section 35 of the Indian Evidence Act, 1872. It cannot be done by the Central Government in exercise of the executive power. (1062-F-G) Union ofIndia v. Naveen Jindal, 120041 2 SCC 510; State of U. P. v. Johri Mal, (2004) 4 SCC 714; Birad Mal Singhvi v. Anand Purohit, AIR (1988) SC 1796 and Sushi/ Kumar v. Rakesh Kumar, 120031 8 SCC 673, referred to. 3. 2. The Model Rules cannot be agreed to as the same have not been framed in terms of the provisions of the Act so as to attract the principles that rules validly framed are to be treated as part of the Act. The Central Government is a statutory functionary. Its functions are circumscribed by Section 70 of the Act only. It has not been authorized to make any rule. Such rule making power has been entrusted only to the State.

The Central Government has, thus, no say in the matter nor can it exercise such power by resorting to its power 'to remove difficulties'. (1062-B-DI ChiefForest Conservator (Wildlife) and Ors. v. Nisar Khan, [2003) 4 SCC 595 and National Insurance Co. Ltd. v. Swaran Singh and Ors. , (20041 3 sec 297, distinguished Mis Ja/an Trading Co. Private Ltd. v. Mill Mazdoor Sabha, AIR (1967) SC 691 at 703, referred to. Liverpool and London S. P. and I Association Ltd. v. M. V. Sea Success I and Anr. , (20041 9 SCC 512, referred to. Regina (Daly) v. Secretary ofState for the Home Department, (2001) 2 AC 532; S. v. Makwanyane, (1995) 3 SA 391; (Reference re Public Service Employee Relations Act (Alberta), [19871 1 SCR 313; (Presumption of Innocence and the European Convention on Human Rights (1987) BverfGE 74, 3580; Tavita v. Minister of Immigration, (1994) 2 NZLR 257; United Kingdom Pratt v. Attorney-Genera/for Jamaica, (1994) 2 AC I; Atkins v. Virginia, (2002) 536 US 304; Lawrence v.

Texas, (2003) 539 US 558; Hamdi PRATAP SINGH v. STATE OF JHARKHAND [SEMA, J. ) 1027 . ). v. Rumsfeld, (2004) 72 USLW 4607; Russel v. Bush, (2004) 72 USLW 4596; Rumsjieldv. Padi/a, (2004) 72 USLW 4584; In re Frank C. , 70 N. Y. 2d 408; Alfreda v. Superior Court 849 P. 2d 1330 (Cal. 1993); Robinson v. Texas, 707 S. W. 2d 47 and Illinois v. Stufflebean, 392 N. E. 2d 414, referred to. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 210 of 2005. From the Judgment and Order dated 10. 9. 2001 of the _Jharkhand High Court at Ranchi in Crl. R. No. 98 of 200 I. Amarendra Sharan, Additional Solicitor General, P. S. Mishra, Alok Kumar, Manu Shankar Mishra, Tathagat Harsh Vardhan, Sishir Pinaki, Amitesh Chandra Mishra, Upendra Mishra, Dhrub Jha, Himanshu Shekhar, Ansul, Krishnanand Pandeya, Devashish Bharuka, Mrs. Sudha Gupta, Ms. Maharukh Adenwala, Trideep Pais and Nikhil Nayyar for the Appearing parties. The Judgments of the Court were delivered by + H. K. SEM~, J. Leave granted.

This appeal is directed against the judgment and order dated 10. 9. 2001 passed by the High Court of Jharkhand at Ranchi in Criminal Revision No. 98 of 2001. Briefly stated the facts giving rise to the filing of the present appeal are as follows : First Information Report was lodged before the police in Bokaro city registered as P. S. case No. 1/99 dated 1. 1. 1999 for the offence under Sections . ~ 364A, 302/201 ! PC read with Section 120B ! PC to the effect that on 31. 12. 1998 J the appellant was alleged as one of the conspirators to have caused the death of the deceased by poisoning. On the basis of the FIR the appellant was arrested and produced before the C. J. M. Chas on 22. 11. 1999. On production, the learned CJM assessed the age of the appellant to be around 18 years old. On 28. 2. 2000, a petition was filed on behalfofthe appellant claiming that he was a minor on the date of occurrence i. e. 31. 12. 1998, whereupon the learned i .

1 CJM transmitted the case to the Juvenile Court. The appellant was produced in the Juvenile Court on 3. 3. 2000. On his production the Juvenile Court assessed the age of the appellant by appearance to be between 15 and 16 years and directed the Civil Surgeon to constitute a Medical Board for the purpose of assessing the age of the appellant by scientific examination and submit a report. No such Medical Board was constituted. Thus, the learned ACJM asked the parties to adduce evidence and on examining the school leaving certificate and mark sheet of Central Board of Secondary Education came to the finding that the appellant was below 16 years of age as on 31. 12. 1998 taking the date of birth of the appellant as 18. 12. 1983 recorded in the aforesaid certificate. The appellant was then released on bail. Aggrieved thereby the informant filed an appeal before the Ist Additio:ial Sessions Judge, who after referring to the judgment of this Court rendered in Arnit Das v.

State of Bihar, [2000] 5 SCC 488, disposed of the appeal on 19. 2. 2001 holding that the Juvenile Court had erred in not taking note of the fact that the date of production before the Juvenile Court was the date relevant for deciding whether the appellant was juvenile or not for the purpose of trial and directed a fresh inquiry to assess the age of the appellant. Aggrieved thereby the appellant moved the High Court by filing Criminal Revision Petition. The High Court while disposing of the Revision has followed the decision rendered by this Court in Arnit Das (supra) and held that reckoning date is the date of production of the accused before the Court. and not the date of the occurrence of the offence. The High Court held that for determining the age of juvenile, the provisions of 1986 Act would apply and not 2000 Act.

The High Court, however, took the view that the date of birth, as recorded in the school and the school certificate, should be the best evidence for fixing the age of the appellant. High Court was also of the view that any other evidence in proof of age would be of much inferior quality. As the enquiry is pending, we need not delve into this question. Having noticed the conflicting views in Arnit Das v. State of Bihar, [2000] 5 SCC 488 and Umesh Chandra v. State ofRajasthan, (1982] 2 SCC 202, this matter has been referred to the Constitution Bench by an order dated 7. 2. 2003. It reads : "The High Court in its impugned judgment has relied on a two-Judge bench decision of this Court in Arl(it Das v. State o/Bihar, [2000] 5 SCC 488. The submission of the learned counsel for the petitioner is that in Arnit Das (supra), the decision of this Court in Umesh Chandra V. State of Rajashtan, [1982] 2 sec 202, was not considered.

The point arising is one of the frequent recurrence and view of the law taken in this case is likely to have a bearing on the new Act, that is, PRATAP SINGH v. STATE OF JHARKHAND [SEMA. . I. ] I029 Juvenile Justice (Care and Protection) Act, 2000 also, the matter deserves to be heard by the Constitution Bench of this Court. Be placed before the Hon. Chief Justice of India, soliciting directions. " This is how the matter has been placed before us. The dual questions which require authoritative decision are : (a) Whether the date of occurrence will be the reckoning date for determining the age of the alleged offender as Juvenile offender or the date when he is produced in the Court/competent authority. (b) Whether the Act of2000 will be applicable in the case a proceeding initiated under 1986 Act and pending when the Act of 2000 was enforced with effect from 1. 4. 200I.

Question (a) Whether the date ofoccurrence will be the reckoning datefor determining the age of the alleged offender as Juvenile offender or the date when he is produced in the Court/competent authority. + Mr. Mishra submits that the decision in Umesh Chandra (supra) rendered by a three-Judge Bench of this Court has laid down the correct law and two-Judge Bench decision in Amit Das (supra) cannot be said to have laid down a correct law. Mr. Mishra also submits that the decision in Amit Das (supra) has not noticed the decision of a three-Judge Bench in Umesh Chandra (supra). Mr. Mishra also referred to the aims and objects of the Juvenile Justice Act, 1986 (hereinafter referred to as the 1986 Act) and submits that the whole object is to reform and rehabilitate the juvenile for the offence he is alleged to have committed and if the date of offence is not taken as .. \ + reckoning the age of the juvenile, the purpose of the Act itself would be ) defeated.

In this connection, he has referred to Sections 18, 20, 26 and 32 of the Act. Per contra Mr. Sharan refers to the aims and objects of the Act and various Sections ofthe Act and particularly emphasized the word is employed in Section 32 ofthe Act and submits that cumulative reading ofthe provisions as well as of the scheme of the Act would show that the reckoning date for determining the date of juvenile would come into play only when a juvenile appears or is brought before the authority/court and not the date of an offence. We may at this stage notice the preamble as well as object of the 1986 Act: "An Act to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to, and disposition of, delinquent juveniles. Be it enacted by Parliament in the Thirty-seventh Year of the Republic of India as follows : Prefatory Note-Statement of Objects and Reasons.

- A review of the working ofthe existing Children Acts would indicate that much greater attention is required to be given to children who may be found in situations of social maladjustment, delinquency or neglect. The justice system as available for adults is not considered suitable for being applied to juveniles. It is also necessary that a uniform juvenile justice system should be available throughout the country which should make adequate provision for dealing with all aspects in the changing social, cultural and economic situation in the country. There is also need for larger involvement of informal systems and community based welfare agencies in the care, protection, treatment, development and rehabilitation of such juveniles. + 2.

In this context, the proposed legislation aims at achieving the following objectives : (i) to lay down a uniform legal framework for juvenile justice in the country so as to ensure that no child under any circumstances is lodged in jail or police lock-up. This is being ensured by establishing Juvenile Welfare Boards and Juvenile Courts; (ii) to provide for a specialized approach towards the prevention and treatment ofjuvenile delinquency in its full range in keeping with the developmental needs of the child found in any situation of social maladjustment; \. (iii) to spell out the machinery and infrastructure required for the care, protection, treatment, development and rehabilitation of various categories of children coming within the purview of the juvenile justice system.

This is proposed to be achieved by establishing observation homes, juvenile homes for neglected juveniles and special homes for delinquent juveniles; (iv) to establish norms and standards for the administration ofjuvenile justice in terms of investigation and prosecution, adjudication and PRATAP SINGH v. STATE OF . IHARKHAND [SEMA.. I. ] 1031 disposition, and care, treatment and rehabilitation; (v) to develop appropriate linkages and co-ordination between the formal system of juvenile justice and voluntary agencies engaged in the welfare of neglected or socially maladjusted children and to specifically define the areas of their responsibilities and roles; (vi) to constitute special offences in relation to juveniles and provide for punishments therefor; (vii) to bring the operation ofthe juvenile justice system in the country in conformity with the United Nations Standard Minimum Rule for the Administration of Juvenile Justice. 3.

As its various provisions come into force in different parts of the country they would replace the corresponding laws on the subject such as the Children Act, 1960 and other State enactments on the subject. " Thus, the whole object of the Act is to provide for the care, protection, treatment, development and rehabilitation of neglected delinquent juveniles. It is a beneficial legislation aimed at to make available the benefit of the Act , to the neglected ot delinquent juveniles. It is settled law that the interpretation of the Statute of beneficial legislation must be to advance the cause of legislation to the benefit for whom it is made and not to frustrate the intendment of the legislation. We may also, at this stage, notic:e the definition of delinquent juvenile.

Sub-section (e) of Section 2 of the 1986 Act defines the delinquent juvenile as : (e) "delinquent juvenile" means a juvenile who has been found to have committed an offence;" Sub-section (I) of Section 2 of 2000 Act defines "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence. The notable distinction between the definitions of I986 Act and 2000 Act is that in 1986 Act "juvenile in conflict with law" is absent. The definition of delinquent juvenile in I986 Act as noticed above is referable to an offence said to have been committed by him. It is the date of offence that he was in conflict with law. When a juvenile is produced before the competent authority and or court he has not committed an offence on that date. but he was brought before the authority for the alleged offence which he has been found to have committed. In our view, therefore, what was implicit in 1986 Act has been made explicit in 2000 Act.

Section 32 ofthe 1986 Act deals with the presumption and determination of age, which reads : "32. Presumption and determination ofage. - (I) Where it appears to a competent authority that a person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or not, stating his age as nearly as may be. (2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile, and the age recorded by the competent authority to be the age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person. " Mr.

Sharan stressed heavily on the word is used in two places of the Section and contended that the word is suggests that for determination of age of juvenile the date of production would be reckoning date as the inquiry with regard to his age begins from the date he is brought before the Court and not otherwise. We are unable to countenance this submission. We have already noticed that the definition of delinquent juvenile means a juvenile who has been found to have committed an offence. The word is employed _. in Section 32 is referable to a juvenile who is said to have committed an offence on the date of the occurrence. We may also notice the provisions of Section 18 of the 1986 Act. Section 18 provides for bail and custody of juveniles. It reads : 18. BAIL AND CUSTODY OF JUVENILES.

(\) When any person accused of a bailable or non-bailable offence and apparently a juvenile is arrested or detained or appears or is brought before a Juvenile Court, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, be released on bail with or without surety PRATAP SINGH v. STATE OF . IHARKHAND [SEMA. . I. ] 1033 but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral danger or that his release would defeat the ends of justice. (2) When such person having been arrested is not released on bail under sub-section (I) by the officer-in-charge of the police station, such officer shall cause him to be kept in an observation home or place of safety in the prescribed manner (but not in a police station or jail) until he can be brought before a Juvenile Court.

(3) When such person is not released on bail under sub-section (I ) by the Juvenile Court it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order. " It will be noticed that the word is has been used in more than one place in this Section also. Often than not, an offender is arrested immediately after an offence is alleged to have been committed or some time even arrested on the spot. This would also show that the arrest and release on bail and custody of juveniles, the reckoning date of a juvenile is the date of an offence and not the date of production. Furthermore, Section 32 of the Act heavily relied upon by the counsel for the respondent does not envisage the production of a juvenile in the Court. We may also usefully refer to Sections 3 and 26 of the Act 1986. Sections 3 and 26 of the Act reads : "3.

Continuation of inquiry in respect ofjuvenile who has ceased to be a juvenile. - Where an inquiry has been initiated against a juvenile and during the course of such inquiry the juvenile ceases to be such, then, notwithstanding anything contained in this Act or in any other Jaw for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile". ' "26. Special provision in respect ofpending cases. - Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in. that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Juvenile Court which.

shall pass orders in respect ofthat juvenile in accordance with the provisions ofthis Act as if it had been satisfied· on inquiry under this Act that the juvenile has committed the offence. " The legislative intendment underlying Sections 3 and 26 read with the preamble, aims and objects of the Act is clearly discernible. A conjoint reading of the Sections, preamble, aims and· objects of the Act leaves no matter of doubt that the legislature intended to provide protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for" the adjudication thereof. Interpretation of Sections 3 and 26 of the Act are no more res-integra. Sections 3 and 26 of the 1986 Act as quoted above are in pari materia with Sections 3 and 26 of the Raja~than Children Act, I970 (Raj. Act 16 of 1970).

A three-Judge bench of this Court in Umesh Chandra (supra) after considering the preamble, aims and objects and Sections 3 and 26 of the Rajasthan Act, held that the Act being a piece of social legislation is meant for the protection of infants who commit criminal offences and, therefore, such provisions should be liberally and meaningfully construed so as to advance the object of the Act. This Court then said in paragraph 28 at 210 sec: · "28. As regards the general applicability of the Act, we are clearly of the view that the relevant date for the applicability of the Act is the date on which the offence takes place. Children Act was enacted to protect young children from the consequences of their criminal acts on the footing that their mind at that age could not be said to be mature for imputing mens rea as in the case of an adult.

This being the intendment of the Act, a clear finding has to be recorded that the relevant date for applicability of the Act is the date on which the offence takes place. It is quite possible that by the time the case comes up for trial, growing in age being an involuntary factor, the ~ ' child may have. ceased to be a child. Therefore, Sections 3 and 26 became necessary. Both the sections clearly point in the direction of PRATAP SINGH v. STATE OF . IHARKHAND [SEMA. . I. ] 1035 the relevant date for the applicability of the Act as the date of occurrence. We are clearly of the view that the relevant date for applicability of the Act so far as age of the accused, who claims to be a child, is concerned, is the date of the occurrence and not the date of the trial. " (emphasis supplied) As already noticed the decision rendered by a three-Judge bench ofthis ... _, Court in Umesh Chandra (supra) was not noticed by a two-Judge bench of this Court in Arni/ Das (supra).

We are clearly of the view that the law laid down in Umesh Chandra (supra) is the correct law and that the decision rendered by a two-Judge bench of this Court in Arnit Das (supra) cannot be said to have laid down a good law. We, accordingly, hold that the law laid down by a three-Judge bench of this Court in Umesh Chandra (supra) is the correct law. Question No. (b) : + Whether the Act of 2000 will be applicable in the case a proceeding is initiated under 1986 Act and pending when the Act of 2000 was enforced with effect from 1. 4. 2001. On this point, we have heard Mr. P. S. Mishra, learned senior counsel for the appellant, Ms. Maharukh Adenwala, counsel for the intervener and Mr. Amarendra Sharan, learned ASG for the State of Jharkhand. In fa,,t counsel for the intervener has adopted the arguments of Mr. Mishra. Mr.

Mishra would submit that any proceeding against any person pending under the 1986 Act would be covered by the 2000 Act and would extend the benefit of being a juvenile as defined under the 2000 Act, if at the time of the commission of the offence he was below the age of I8 years. To buttress his point counsel heavily relied upon the provisions contained in Section . 20 of the Act and Rules 61 and 62 framed by the Central Government. Per contra Mr. Sharan counsel for the respondent would contend that the 1986 Act has been repealed by Section 69( I) of the 2000 Act and, therefore, the provisions of 2000 Act would not be exiended to a case/inquiry init! ated and pending under the provisions of 1986 Act, the Act of 2000 being not retrospective. To answer the aforesaid question, it would be necessary to make quick survey of. the definitions and Sections of 2000 Act, relevant for the purpose of disposing of the case at hand.

As stated hereinabove the whole object of:he Acts is to provide for the care, protection, treatment, development and rehabilitation of juveniles. The Acts being benevolent legislations, an interpretation must be given which would advance the cause of the legislation i. e. to give benefit to the juveniles. The 1986 Act was holding the field till it was eclipsed by the emergence of2000 Act w. e. f. 1. 4. 2001, the date on which the said Act c:ame into force by the Notification dated 28. 2. 200 I in the Official Gazette issued by the Central Government in exercise of the powers conferred by Sub-Section (3) of Section I of the Act. Section 69(1) of the Act repealed the 1986 Act. It •reads : 69. Repeal and savings. -(! ) The Juvenile Justice Act, 1986 (53 of 1986) is her. :by repealed. (2) Notwithstanding such repeal, anything done or a~y action taken under the said Act shall be deemed to have been done or taken under the corresponding provisions of this Act.

" (emphasis supplied) Sub-Section (2) postulates that anything done or any action taken under t the 1986 Act shall be deemed to have been done or taken under the corresponding provisions of the 2000 Act. Thus, although the 1986 Act was repealed by the 2000 Act, anything done or any action taken under the 1986 Act is saved by sub-section (2), as if the action has been taken under the provisions of the 2000 Act. Section 20 on which reliance has been placed heavily by the counsel for the appellant deals with the special provision in respect of pending cases. It reads : "20. Special provision in respect ofpending cases.

- Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. " The striking distinction between the 1986 Act and 2000 Act is with PRATAP SINGH v. STATE OF JHARKHAND [SEMA.. I. ] I037 regard to the definition . of juvenile.

Section 2(h) of the 1986 Act defines juvenile as under : "2(h) "juvenile" means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years;" Section 2(k) of 2000 Act defines juvenile as under:- "2(k) "juvenile" or "child" means a person who has not completed eighteenth year of age;" _. _, Thus, the striking distinction between the 1986 Act and 2000 Act is that under the 1986 Act a juvenile means a male juvenile who has not attained the age of 16 years and a female juvenile who has not attained the age of 18 years. In the 2000 Act no distinction has been drawn between the male and female juvenile. The limit of 16 years in 1986 Act has been raised to 18 years in 2000 Act. In the 2000 Act wherever the word "juvenile" appears the same will now have to be taken to mean a person who has not completed 18 years of age. Section 3 provides as follows : "3. Continuation ofinquiry in respect ofjuvenile who has ceased to be a juvenile.

- Where an inquiry has been initiated against a juvenile in conflict with law or a child in need of care and protection and during the course of such inquiry the juvenile or the child ceases to be such, then notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile or a child. " -'r' Thus, even where an inquiry has been initiated and the juvenile ceases to be a juvenile i. e. crosses the age of 18 years, the inquiry must be continued and orders made in respect of such person as if such person had continued to be a juvenile. Similarly, under Section 64 where a juvenile is undergoing a sentence of imprisonment at the commencement of the 2000 Act he would, in lieu of undergoing such sentence, be sent to a special home or be kept in a fit > J. institution.

These provisions show that even in cases where a mere inquiry has commenced or even where a juvenile has been sentenced the provisions of the 2000 Act would apply. Therefore, Section 20 is to be appreciated in the contJd of the aforesaid provisions. Section 20 of the Act as quoted above deals with the special provision in respect of pending cases and begins with non-obstante clause. The sentence "Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on date of which this Act came into force" has great significance. The proceedings in respect of a juvenile pending in any court referred to in Section 20 of the Act is relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term "any court" would include even ordinary criminal courts. If the person was a '1uvenile" under the 1986 Act the proceedings would not be pending in criminal courts.

They would be pending in criminal courts only if the boy had crossed 16 years or girl had crossed 18 years. This shows that Section 20 refers to cases where person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that Court as ifthe 2000 Act has not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, shall forward the juvenile to the i Board which shall pass orders in respect of that juvenile. In this connection it is pertinent to note that Section 16 of the 2000 Act is identical to Section 22 of the 1986 Act. Similarly Section 15 of the 2000 Act is in pari materia with Section 21 of the 1986 Act.

Thus, such an interpretation does not offend Article 20( I) of the Constitution of India and the juvenile is not subjected to any penalty greater than that which might have been inflicted on him under the 1986 Act. Mr. Mishra placed reliance on Rules 61 and 62 framed by the Central Government. According to him, particularly Rule 62 of the Rules covers the pending cases and the appellant is entitled to the benefit of Rule 62. Rule 62 reads : "62. Pending Cases. -(! ) No juvenile in conflict with law or a child shall be denied the benefits ofthe Act and the rules made thereunder. (2) All pending cases which have not received a finality shall be dealt with and disposed of in terms of the provisions of the Act and the _. , rules made thereunder. (3) Any juve11ile in conflict with law, or a child shall be given the PRATAP SING!! '"STATE OF JHARKHAND [SINHA. . I.

] ] 039 benefits under sub-rule (I), and it is hereby clarified that such benefits shall be made available not only to those accused who was juvenile or a child at the time of commission of an offence, but also to those who ceased to be a juvenile or a child during the pendency of any enquiry or trial. (4) While computing the period of detention of s·1y . :if a juvenile in conflict with law or of a child, all such period which the juvenile or the child has already spent in custody, detention o·· stay shall be counted as part of the period of stay or detention contained in the final order of the competent authority. " This Rule also indicates that the intention of the Legislature was that the provisions of the 2000 Act were to apply to pending cases provided, on 1. 4. 200I i. e. the date on which the 2000 Act came into force, the person was a "juvenile" within the meaning of the term as defined in the 2000 Act i. e. he/she had not crossed 18 years of age. Mr.

Mishra referred to the decision of the two-Judge Bench of this .. "* Court in Criminal Appeal No. 370 of 2003 decided on 31. 3. 2004 in the case of Upendra Kumar v. State of Bihar, wherein this Court referred to the earlier decisions of this Court rendered in Bhola Bhagat v. State of Bihar, (1997] 8 SCC 720, Gopinath Ghosh v. State of W. B. , (1984] Supp. SCC 228, Bho_op Ram v. State of U. P. , [1989] 3 SCC I and Pradeep Kumar v. State ofU. P. , (1995] Supp 4 SCC 419 where this Court came to the conclusion that the accused who were juvenile could not be denied the benefit ofthe provisions of the Act then in force. We, therefore, hold that the provisions of2000 Act would be applicable to those cases initiated and pending trial/inquiry for the offences committed· under the 1986 Act provided that the person had not completed 18 years of age as on 1. 4. 200I.

The net result is : (a) The reckoning date for the determination ofthe age ofthe juvenile is the date of an offence and not the date when he is produced before the authority or in the Court. (b) The 2000 Act would be applicable in a pending proceeding in any court/authority initiated under the 1986 Act and is pending when the 2000 Act came into force and the person had not completed 18 years of age as on 1. 4. 200I. The appeal stands disposed of in the above terms. S. B. SINHA, J. INTRODUCTION : Juvenile Justice Act in its present form has been enacted in discharge of the obligation of our country to follow the United National Standard Minimum Rules for the Administration of Juvenile Justice, 1985 also known as Beijing Rules (the Rules).

THE RULES: Part I of the said Rules provides for the general principles which a;·e said to be of fundamental perspectives referring to comprehensive social policy in general and aiming at promoting juvenile welfare to the greatest possible extent, which would minimize the necessity of int·ervention by the juvenile justice system and, in turn, will reduce the harm that was caused by any intervention. The important role that a constructive social policy for juvenile is to play has been pointed out in Rules 1. 1 to 1. 13 inter alia in the t .. matter of prevention of juvenile crime and delinquency. Rule 1. 4 defines juvenile justice as an integral part of the national development process of each country, within a comprehensive framework of social justice from all juveniles, and, thus, at the same time, contributing to the protection of the young and maintenance of a peaceful order in the society. While Rule 1.

6 refers to the necessity of the juvenile justice system being systematically developed and coordinated with a view to improving and sustaining the competence of personnel involved in the services including their methods, approaches and attitudes, Rule 1. 5 seeks to take account ofexisting conditions in Member States which would cause the manner of implementation of particular rules necessarily to be different from the manner adopted in other States. Rule 2. 1 provides for application of the rules without distinction of any kind. Rule 2. 2 provides for the definitions which are as follows: "(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 PRATAP SINGH v. STATE OF JHARKHAND [SINHA. J.

] 1041 have committed or who has been found to have committed an offence. " Rule 2. 3 inter alia provides for making a set of laws, rules and provisions specifically applicable to juvenile offenders and institutions and bodies entrusted with the functions of ! IP ~d;i1ini>i•·J'i"n of juvenile justice and designed· .. (a) To meet the varying needs ul JUVC1111e uftenders, while protecting their basic rights; (b) To meet the needs of society; (c) To implement the following rules thoroughly and fairly. " The age of a juvenile is to be determined by the Member Countries having regard to its legal system, thus fully respecting the economic, social political, cultural and legal systems. This has made a wide variety of ages coming under the definition of "juvenile", ranging from 7 years to 18 years or above.

Rule 3 provides for extension of the Rules covering (a) status offences; (b) juvenile welfare and care proceedings and (c) proceedings dealing - -t with young adult offenders, depending of course on each given age-limit. Rule 4 provides that the minimum age of criminal responsibility should not be fixed at too low an age level bearing in mind the facts of emotional, mental and intellectual maturity. Rule 5 provides that 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. Rule 6 provides for scope of discretion. Rule 7.

1 provides for the rights of juvenile which is as under: "Basic procedural safeguards such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority shall be guaranteed at all stages of proceedings. " Rule 8 provides for the protection of privacy. Rule 9 provides that the said rules shall not be interpreted as precluding the application ofthe Standard ) • Minimum Rules for the treatment of prisoners adopted by the United Nations and other human rights instruments and standards recognized by the international community that relate to the care and protection of the young. Rule 27 also provides for application of the Standard Minimum Rules for the treatment of prisoners adopted by the United Nations.

Part II of the said Rules provides for investigation and prosecution, diversion, specialization within the police, detention pending trial. Rule 13 reads as under: "13. l Detention pending trial shall be used only as a measure of last resort and for the shortest possible period of time. 13. 2 Whenever possible, detention pending trial shall be replaced by alternative measures~ such as close supervision, intensive care or placement with a family or in an educational setting or home. 13. 3 Juveniles under detention pending trial shall be entitled to all. rights and guarantees of the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations. 13. 4 Juveniles under detention pending trial shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults. 13.

5 While in custody, juveniles shall receive care, protection and all necessary individual assistance - social, educational, vocational, psychological, medical and physical - that they may require in view of their age, sex and personality. " Part Ill provides for adjudication and disposition in terms whereof competent authorities prescribed were competent to a,djudicate. Rule 15 provides for legal counsel, parents and guardians. Rule 16 provides for Social Inquiry Reports. Rule 16. 1 reads as under: ". In all cases except those involving minor offences, before the competent authority renders a final disposition prior to sentencing, the background and circumstances in which the juvenile is living or the conditions under which the offence has been committed shall be properly investigated so as to facilitate judicious adjudication of the case by the competent authority. " Rule 17 provides for guiding principles in adjudication and disposition .. \ which reads as under: "17.

1 The disposition of the competent authority shall be guided by the following principles: PRATAP SINGH v. STATE OF ffiARKHANO [SINHA, J. ] 1043 (a) The reaction taken shall always be in proportion not only to the circumstances and the gravity of the offence but also to the circumstances and the needs of the juvenile as well as to the needs of the . society; (b) Restrictions on the personal liberty ofthe juvenile shall be imposed only after careful' consideration and ~hall be limited to the possible minimum; ;.. ,. , (c) Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response; (d) The well-being of the juvenile shall be the guiding factor in the consideration of her or his case. 17. 2 Capital punishment shall not be imposed for any crime committed by juveniles: ·~ 17.

3 Juveniles shall not be subject to corporal punishment. 17. 4 The competent authority shall have the power to discontinue the proceedings at any time. " It has been pointed out that the main difficulty in formulating guidelines for the adjudication of young persons stems from the fact that there are unresolved conflicts of a philosophical nature, such as the following: (a) Rehabilitation versusjust result; (b) Assistance versus repression and punishment; (c) Reaction according to the singular merits of an individual case versus reaction according to the protection of society in general; (d) General deterrence versus individual incapacitation. OBJECTS OF JUVENILE JUSTICE LEGISLATION: J , The purpose of the Juvenile Justice Legislation is to provide succour to the children who were being incarcerated along with adults and were subjected to various abuses.

It would be in the fitness of things that appreciation of the very object and purpose of the legislation is seen with·a clear understanding which sought to bring relief to juvenile delinquents. The problem of Juvenile Justice is, no doubt, one of tragic human interest so much so in fact that it is not confined to this country alone but cuts across national boundaries. In 1966 at the second United Nations Congress on the Prevention of Crime and Treatment of Offenders at London this issue was discussed and several therapeutic recommendations were adopted. To bring the operations ofthe juvenile justice system in the country in conformity with the UN Standard Minimum Rule for the Administration of juvenile justice, the juvenile Justice Act came into existence in 1986.

A review of the working of the then existing Acts both State and Parliamentary would indicate that much greater attention was found necessary to be given to children who may be found in situations of social maladjustment, delinquency or neglect. The justice system as available for adults could not be considered suitable for being applied to juvenile. There is also need for larger involvement of informal system and community based welfare agencies in the case, protection, treatment, development and rehabilitation of such juveniles. The provisions ofthe Juvenile Justice Act, 1986 (hereinafter referred to as "the 1986 Act") and the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of2000) (hereinafter referred to as "the 2000 Act") are required to be construed having regard to the aforementioned Minimum Standards as the same are specifically referred to therein.

The Juvenile Justice Act, 1986 is aimed at achieving the following objects : (i) To lay down an uniform legal frame-work for juvenile justice in the country so as to ensure that no child under any circumstances is lodged in jail or police lock-up. This is being ensured by establishing Juvenile Welfare Boards and Juvenile Courts; (ii) To provide for a specialized approach towards the prevention and treatment of juvenile delinquency in its full range in keeping with the development needs ofthe child found in any situation of social maladjustment; (iii) To spell out the machinery and infrastructure required for the, case, protection, treatment, developments and rehabilitations of various categories of children coming within the purview of the Juvenile Justice system.

This is proposed to be achieved by establishing observation homes, juvenile homes for neglected juveniles and special homes for delinquent juveniles; (iv) To establish norms and standard for the administration of juvenile PRATAP SINGH v. STATE OF . IHARKl! AND [SINHA. J. ] 1045 I justice in terms of investigation and prosecution, adjudication and disposition f and case, treatment and rehabilitation; (v) To develop appropriate linkages and coordination between the fonnal system of juvenile justice and voluntary agencies engaged in the welfare of , neglected or society maladjusted children and to specifically define the areas of their responsibilities and roles; (vi) To constitute special offences in relation to juveniles and provide for punishment therefor; (vii) To bring the operation of the juvenile justice system in the country in conformity with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice.

The various provisions ofthe 1986 Act provide for a scheme ofunifonn juvenile justice system in the country so that a juvenile may not have to be lodged in jail or police lock-up as well as for prevention and treatment of ~- juvenile delinquency for care, protection etc. Section 3 provides that where an inquiry has been initiated against a juvenile even, during the course of such inquiry a juvenile ceased to be such, then, notwithstanding anything contained therein or any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such persons as if such person had continued to be a juvenile. Chapter II of the Act speaks of competent authorities and institutions for juveniles such as Juvenile Welfare Boards, Juvenile Courts, Juvenile Homes, special homes, observation homes and aftercare organisations. Chapter III makes provision for neglected juveniles. Section 17 makes provision for uncontrollable juveniles.

Chapter IV deals with delinquent juveniles. Sections 18 to 26 provide for bail and 1"' ' custody ofjuveniles, accused of a bailable or non-bailable offence, the manner of dealing with them and the orders that may be passed regarding or against delinquent juveniles. Proceedings as laid down in Chapter VIII of the Code of Criminal Procedure are not competent against a juvenile. A juvenile and a person who is not a juvenile cannot be jointly tried. No disqualification attaches to conviction of a juvenile for any offence under any law. Special G. provisions are contained in Section 26 as regard the proceedings in respect , J ofjuveniles pending in any court on the date of the coming into force of the Act. Chapter V (Sections 27 to 40) lay down the procedure of competent authorities generally under the Act and appeals and revisions from orders of such authorities. Chapter VI (Sections 41 to 45) provides for special offences in respect ofjuveniles.

Chapter VII (Sections 46 to 63) contains miscellaneous ~ provisions. ' Section 32 of the 1986 Act mandates the competent authority to hold enquiry as to the age of the delinquent brought before it. The 1986 Act has been repealed and replaced by the 2000 Act. The 2000 Act has brought about certain changes vis-a-vis the 1986 Act. It has obliterated the distinction between a male juvenile and female juvenile. In contrast with the definition of delinquent juvenile in the 1986 Act who was found guilty of commission of an offence, a juvenile in conflict with law is defined in the 2000 Act to mean a person who is of below 18 years of age and is alleged to have committed· an offence. Section 3 provides for continuation of inquiry in respect ofjuvenile who has ceased to be a juvenile. By reason of the aforementioned provisions a legal fiction has been created to treat a j•Jvenile who has ceased to be a juvenile as a person as if he had continued to be a juvenile.

Chapter II provides for constitution of a Juvenile Justice Board. Its power had been outlined 'in Section 6.. section 7 -; mandates that a Magistrate before whom a juvenile is produced must without any delay record his opinion, and if it is found that a person brought before him is a juvenile, he shall record th!! same and forward him with the record of the proceeding to the competent authority having jurisdiction over the proceeding. Sections 8 and 9 provide for observation homes and special homes. Section I0 provides that on apprehension of a juvenile in conflict with law; he shall be placed under the charge of a special juvenile police unit or the designated police officer who shall immediately report the matter to a member of the Board. Section 12 provides for bail. In no circumstances, a person who appears to be juvenile is to be placed in a police lock-up. He is ..... to be kept in an observation home in the prescribed manner until he can be brought before the court.

Sub-section (3) of Section 12 mandates the Board to make an order sending a juvenile to the observation home instead of committing him to prison. Section 14 provides for holding of an inquiry by the Board regarding a juvenile within a period of four months. Section 15 provides for an order that may be passed regarding juvenile, clause (g) of sub-section (I) whereof reads, thus: . ~ "15. Order that may be passed regarding juvenile - (I) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it thinks so fit, - PRATAP SINGH v. STATE Of JHARKHAND [SINHA, J.

] 1047 i (g) make an order directing the juvenile to be sent to a special home- (i) in the case ofjuvenile, over seventeen years but less than eighteen years of age for a period of not less than two years; (ii) in case of any other juvenile for the period until he ceases to be a juvenile: Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit. " Section 16 mandates that no juvenile shall be sentenced to death or life imprisonment or committed to prison in default of payment of fine or in default of furnishing security. Sections 20 and 64 which are relevant for our purpose read as under: "20.

Special provision in respect ofpending cases - Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. 64.

Juveniles in conflict with law undergoing sentence at commencement of this Act - In any area in which this Act is brought into force, the State Government or the local authority may direct that a juvenile in conflict with law who is undergoing any sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution in such manner as the State Government or the local authority thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care under sub-section (2) of section 16 of this Act. " Sections 4 to 28 occur in Chapter II which deal with juvenile in conflict with law and Section 64 occurs in Chapter V dealing with miscellaneous provisions.

It is interesting to note that all the provisions occurring in Chapter II or Section 20 do not use the expression juvenile in conflict with law whereas Section 64 specifically uses that expression. Section 20 of the Act permits continuation of proceedings of a juvenile court in any area on the date on which the Act came into force by providing "it shall record such finding and instead of passing any sentence in respect of that juvenile, shall forward him to the board which shall pass orders in respect of that juvenile in accordance with the provision of this Act as if it has been satisfied on inquiry under this Act that juvenile had committed the offence". Section 68 provides for rule making power of the State Government. No State unfortunately has framed any rule in exercise thereof.

The Central Government, however, in purported exercise of its power under Section 70 ofthe Act published the principles which are fundamental to the development of strategies, interpretation and implementation of the Act of 2000 and the model rules which the State Governments are required to frame. Rule 6lof the said Model Rule is as under: "61. Temporary application of model rules - It is hereby declared that until the new rules are framed by the State Government concerned under section 68 of the Act, these rules shall mutatis mutandis apply in that State. " Rule 62 deals with pending cases and sub-rule (3) thereof reads as under: "It is hereby clarified that such benefits shall be made available not only to those accused, who was juvenile or a child at the time of commission of an offence but also to those who ceased to be a juvenile or a child during the pendency of any enquiry of trial.

" The legislation relating to juvenile justice should be construed as a step for resolution of the problem of the juvenile justice which was one of tragic human interest which cuts across national boundaries. The said Act has not ' ' . only to be read in tern1s of the Rules but also the Universal Declaration of Human Rights and •he United Nations Standard Minimum Rules for the protection of juveniles. PRATAP SINGH v. STATE OF . IHARKHAND [SINHA, l] I049 INTERNATIONAL LAW: The Juvenile Justice Act specially refers to international law. The relevant provisions of the Rules are incorporated therein. The international treatises, covenants and conventions although may not be a part of our municipal law, the same can be referred to and followed by the courts having regard to the fact that India is a party to the said treatises. A right to a speedy trial is not a new right. It is embedded in our Constitution in terms of Articles 14 and 21 thereof.

The international treaties recognize the same. It is now trite that ' " any violation of human rights would be looked down upon. Some provisions of the international law although may not be a part of our municipal law but the courts are not hesitant in referring thereto so as to find new rights in the context of the Constitution. Constitution of India and other ongoing statutes have been read consistently with the rules of international law. Constitution is a source of, and not an exercise of, legislative power. The principles of International Law whenever applicable operate as a statutory implication but the Legislature in the instant case held itself bound thereby and, thus, did not legislate in disregard of the constitutional provisions or the international law as also in the context of Articles 20 and 21 of the Constitution of India. The law has to be understood, therefore, in accordance with the international law.

Part III of our Constitution protects substantive as well as procedural rights. Implications which arise therefrom must effectively be protected by the judiciary. A contextual meaning to the statute is required to be assigned having regard to the Constitutional as well as International Law operating in the field. [See Liverpool & London S. P. & I Association Ltd v. M V. Sea Success I and Anr. , [2004] 9 SCC 512] In Regina (Daly) v. Secretary ofStatefor the Home Department, (2001) 2 AC 532, Lord Stein observed that in the law context is everything in the following terms: • "28. The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review.

On the contrary, as Professor Jowell [2000] PL 671, 681 has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood [2001) I WLR 840 are correct. And Laws LJ rightly emphasized in Mahmood, at p 847, para 18, "that the intensity of review in a public law case will depend on the subject matter in hand". That is so even in cases involving Convention rights. In law context is everything. " Constitution of India and the Juvenile Justice Lt:gislations must necessarily be understood in the context of present days scenario and having regard to the international treaties and conventions. Our Constitution takes note of the institutions of the world community which had been created.

• · Some legal instruments that have declared the human rights and fundamental freedoms of humanity had been adopted but over the time even new rights had been found in several countries, as for example, South Africa (S. v. Makwanyane, (1995) 3 SA 391), Canada (Reference re Public Service Employee Relations Act (Alberta), (1987) I SCR 313 at 348), Germany (Presumption ofInnocence and the European Convention on Human Rights, (1987) BverfGE 74, 358), New Zealand (Tavita v. Minister ofImmigration, (1994) 2 NZLR 257 at 266), United Kingdom (Pratt v. Attorney-Genera/for Jamaica, (I 994) 2 AC I and United States (Atkins v. Virginia, (2002) 536 US 304 and Lawrence v. Texas, (2003) 539 US 558). New ideas had occupied the human mind as regard protection of Human Rights. (See Hamdi v. Rumsfeld, (2004) 72 USLW 4607, Russel v. Bush, (2004) 72 USLW 4596 and Rumsfield v. Padila, (2004) 72 USLW 4584).

Now, the Constitution speaks not on'y "to the people of India who made it and accepted it for their governance but also to the international community as the basic law of the Indian nation which is a member of that community". Inevitably, its meaning is influenced by the legal context in p which it must operate. The legal instruments that have declared legal rights and fundamental freedoms, founded in the nations of human dignity and Charter of United Nations were not known earlier which is manifest today. [Charter of the United Nations, signed at San Fransisco on 26. 6. 1945. Preamble). Political, social and economic development can throw light on the meaning of Constitution. In Lawrence (supra), Kennedy J. , for the Supreme Court, after references to international human rights law, concluded: "Had those who drew and ratified the Due Process Clauses of the PRATAP SINGH v. STATE OF JHARKHAND [SINHA, J.

] 105] Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume of have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. " The questions, therefore, in our opinion, should be determined having regard to the aforementioned principles. EXPEDITIOUS PROCEEDINGS : In terms of Rule 20. l of the Rules we may notice that some statutes, as for example, the Family Court Act of some States of U. S. A. contains provisions establishing time limitations governing each stage of juvenile proceedings, the purpose whereof is to assure swift and certain adjudication at all phases of the proceeding. (See In re Frank C. , 70 N. Y.

2d 408) } A similar issue was examined by the Supreme Court of California in Alfredo v. Superior Court, 849 P. 2d 1330 (Cal. 1993) wherein a juvenile sought habeus corpus to obtain release. The court held that the Fourth Amendment provides the authority for the promptness required for a juvenile hearing. It was further held that a minor must be released upon expiration of the statutory time limit for detention due to the juvenile's interest in freedom from institutional restrains. The court implied that the time allowed to have the hearing shall stand extended once the juvenile is released, and that dismissal is not the only necessary remedy. In Robinson v. Texas, 707 S. W. 2d 47, the Texas Court of Appeals held that in calculating the time for a speedy trial continuances should not be included. In that case, the court found that continuances based on reset forms signed by appellant's attorney were excludable from the statutory time limits for a speedy trial. In Jllinois v.

Stufflebean, 392 N. E. 2d 414, the Appellate Court of Illinois held that the remedy for detention of a juvenile beyond the statutory limit was immediate release, not dismissal. In Stufflebean, the court denied a probationer's request for dismissal based on incarceration exceeding statutory limits. QUESTIONS : The questions which arise for consideration in this reference are: (i) What would be reckoning date in detennining the age of offender, viz. , date when produced in a Court, as has b1~en held by this Court in Arnit Das v. State of Bihar, [2000] 5 SCC 488 or the date on which the offence was committed as has been held in Umesh Chandra v. State of Rajasthan, [1982] 2 SCC 202. . ' (ii) Whether the 2000 Act will be applicable in cases which were pending before the enforcement thereof. RE. : QUESTION NO. i : We have noticed hereinbefore that the decisions in Umesh Chandra (supra) and Arnit Das (supra) are in conflict with each other.

Whereas in Umesh Chandra (supra), a clear finding has been recorded by this Court that the relevant date for applicability of the Act is the date on which the offence takes place; in Arni! Das (supra), Lahoti, J. (as the learned Chief Justice then was) speaking for a Division Bench held that Section 8(a) of the Act and the Scheme as also the phraseology employed by the Parliament in drafting the Act suggests that the relevant date for finding out the age of juvenile is the date when he is produced before the Board. It was observed that indisputably the definition of juvenile or any other provisions contained in the Act does not specifically provide the date for reference to which a crime has to be detennined so as to find out whether he is or she is a juv·enile or not.

In support ofthe view taken in Arnit Das (supra), the learned Additional Solicitor General appearing for the Respondent submitted that the Act aims at protection of a juvenile in the sense that he is to be kept in the protective custody and dealt with separately by not sending him to prison or police lock-up which is possible to be directed only when a juvenile is arrested or produced in court and not prior thereto. Similarly, on conviction, he cannot be sentenced and may be directed to be housed in a protective home and, thus, the relevant date would be the one on which the delinquent juvenile is produced before the Board.. This argument cannot be accepted for more than one reason. The said Act is not only a beneficient legislation, but also a remediai one. The Act Gims at grant of care, protection and rehabilitation of a juvenile vis-a-vis the adult criminals. Having regard to Rule 4 of United Nations Standard Minimum PRATAP SINGH v. STATE OF . IHARKHAND [SINHA,J.

] I053 Rules for the Administration of Juvenile Justice, it must also be borne in mind that the moral and psychological components of criminal responsibility was also one ofthe factors in defining a juvenile. The first objective, therefore, is the promotion of the well-being of the juvenile and the second objective bring about the principle of proportionality whereby and whereunder the proportionality of the reaction to the circumstances of both the offender and the offence including the victim should be safeguarded. In essence, Rule 5 calls for no less and no more than a fair reaction in any given case ofjuvenile , :.. delinquency and crime. The meaning of the expression 'Juvenile' used in statute by reason of its very nature has to be assigned with reference to definite date. The term 'Juvenile' must be given a definite connotation. A person cannot be a juvenile for one purpose and an adult for other purpose.

It was, having regard to the constitutional and statutory scheme, not necessary for the Parliament to specifically state that the age of juvenile must be determined as on the date of commission of the offence. The same is in-built in the statutory scheme. The statute must be construed having regard to the Scheme and the ordinary state ofaffairs and consequences flowing therefrom. The modern approach is to consider whether a child can live up to the moral and