CRIMINAL LAW

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Relevant date for applying the Juvenile Justice Act
by Dr Ved Kumari*

Cite as : (2000) 6 SCC (Jour) 9

The Supreme Court in Arnit Das v. State of Bihar1 was faced with two questions. One, whether the finding of lower courts was sustainable that the petitioner was not a juvenile on the date of commission of offence? Second, by reference to which date the age of the petitioner was required to be determined for finding whether he is a juvenile or not?

The ACJM had held inquiry to determine the age of the accused and arrived at a finding that he was above 16 years of age on the date of occurrence. The Sessions Court in appeal and the High Court in revision maintained this finding. The Supreme Court found no reason to interfere with that finding arrived at by the lower courts after considering the material on record produced by the prosecution and the accused.

In view of this decision, the other question considered by the Supreme Court should have become infructuous. The question of deciding the relevant date for applying the Juvenile Justice Act, 1986 (JJA) would have survived for determination if the accused was a juvenile on the date of commission of offence but ceased to be so at a later date. The Supreme Court still went on to determine the issue in this case and has held that the age of the accused on the date on which he is produced before the court is relevant for determining applicability of the JJA.

It is submitted that this decision of the Supreme Court has been arrived at not only without considering its own earlier decision on the matter but also is contrary to the scheme and spirit of the JJA. The Supreme Court in Umesh Chandra v. State of Rajasthan2 in most categorical terms wrote:

"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 stage 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 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."

The Supreme Court in Arnit Das1 made no mention of Umesh Chandra2 decided under the Children Act having similar provisions and scheme. The Supreme Court has given the following reasons for its decision in Arnit Das1:

1. Section 32 of the JJA uses the expression "Where it appears that a person is brought before it ... is a juvenile... ." This expression indicates that the jurisdiction to record the finding of age commences when the person is brought before it and that he should be a juvenile on that date.

2. Section 8 of the JJA directs the Magistrate not empowered to deal with juveniles under the JJA to transfer them if such Magistrate is of opinion that the person brought before it is a juvenile.

3. Sections 18 and 20 of the JJA also indicate that inquiry into age has to be made only by the competent authority. Other Magistrates or the police have to reach a tentative finding of age for sending those cases to the competent authority.

4. There was no need to have Section 3 of the JJA if age at the date of commission of the offence was conclusive of its applicability.

5. The decisions of the Supreme Court in Santenu Mitra v. State of W.B.3, Bhola Bhagat v. State of Bihar4 and Gopinath Ghosh v. State of W.B.5, were authorities on issues other than the one under consideration.

6. The decision of the Calcutta High Court in Dilip Saha6 proceeded on an erroneous understanding of Article 20 (1) of the Constitution. The Patna High Court in Krishna Bhagwan7 was faced with questions that were different from those before it.

7. The long title of the JJA also suggests that it deals with juveniles.

It is submitted that each one of these reasons is subject to question by reference to the provisions, their intent and the scheme of the JJA, apart from the philosophy behind juvenile justice.

Juvenile justice has its origin in the twin concepts of mens rea and parens patriae. Children found in difficult circumstances, including those committing offences, are treated differentially because they are less culpable and less capable of looking after themselves. This less culpability and less capability relates to the time when the act is being committed as well as the period while the person continues to be so. The scheme of the Act clearly shows that it is geared to deal with persons who were below the specified age at the time of occurrence but ceased to be so during the inquiry.

Section 32 which has been relied upon by the Supreme Court, itself provides that an order of the competent authority shall not become invalid merely because of any subsequent proof that the person before it was not a juvenile. The age as determined by the competent authority shall be deemed to be the true age of the person for the purposes of the Act. The section is apparently inclusive in its approach.

The same inclusiveness has been incorporated in Section 3 of the JJA. This clarifies that even if the juvenile ceases to be so during the inquiry, the JJA will continue to be applied as if the person continues to be so. The section was intended to clarify any doubts that may arise regarding continued applicability of the JJA rather than to create doubts on the age at the date of occurrence being conclusive of its applicability. Juvenile justice looks backwards at the time of commission of the offence as well as forward to what can be done to ensure care and protection to the child. Absence of such a section may have given rise to the question whether the Act will continue to apply if the juvenile ceases to be so by the time of final order in the matter.

The scheme of residential care too extends the protection of the Act to children beyond the age of a juvenile. A juvenile sent to a juvenile home or a special school may be kept there till the age of 18 in case of a boy and till the age of 20 in case of a girl - two years later than they cease to be juveniles according to the definition of juvenile in the JJA.

There are no logical explanations for differential application of the JJA to persons who were juveniles on the date of commission of the offence. It makes no difference whether such a juvenile ceases to be juvenile during an inquiry or before being brought before the competent authority. In both cases the twin concepts of mens rea and parens patriae apply similarly. The Supreme Court posed to the counsel for the appellant the following question:

"[W]hat happens if a boy or a girl of just 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 aftercare 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?"8

The learned counsel could not answer this question to the satisfaction of the Court. The question reflects the focus of the Court being on the offence rather than on the person. The JJA is there to ensure care, protection, etc., to children. It does not concern itself with punishing persons for committing offences. If for some reasons the opportunity to provide that care and protection is lost, there is not much that can be done to salvage the situation and the matter ought to be dropped.

The same question arises in those cases also where the "child" becomes too old to be dealt with under the provisions of the Act after the competent authority has ceased of the matter. There is already a precedent of the Supreme Court on the matter. In Jayendra v. State of U.P.9 by the time the Court finally determined that he was a child on the date of the offence, the accused had become 25 years of age. The Supreme Court ordered the proceedings to be closed as no useful purpose would be served to send the matter back to the Juvenile Court for disposal under the Act. It may be mentioned, however, that the Supreme Court has not dealt with the subject consistently. Umesh Chandra2 was decided by the Supreme Court a month-and-a-half later than Jayendra9, and the "child" had become 26-and-a-half years old by the time the Supreme Court decided that he was a child on the date of the offence. The matter was referred to the Juvenile Court for final disposal in accordance with the Children Act. While the Allahabad High Court considered such a case fit to be sent to the State Government for appropriate orders,10 the High Court of Punjab ordered that such child be released on probation of good conduct.11

Even if Sections 18 and 20 indicate that the competent authority is the body that has to determine the age of the child, it does not mean that the age at the time of production determines applicability of the JJA. The Supreme Court in Santenu Mitra3, Bhola Bhagat4 and Gopinath Ghosh5 has extended the benefits of this social legislation to children and not to restrict its operation by taking recourse to technicalities of law. Arnit Das1 takes a technical interpretation of Section 32 by focusing on the use of "is" twice in the section. It ignores that sub-section (2) of the same section extends the benefits of the legislation even when in fact the person was not a child as determined by the competent authority. By technically interpreting the definitions of delinquent juvenile and juvenile it is possible to argue that the date of decision in fact determines the applicability of the Act. Juvenile is a person who has not attained the specified age12 and delinquent juvenile is the juvenile found to have committed an offence.13 As the word used is "juvenile found to have committed an offence" it is possible to argue that the person must be a juvenile when the finding of delinquency is reached. Such an approach to interpretation is not constructive to the aims and objects of the JJA to extend uniform care to all children in need of care and protection. Similarly in Section 32 the substantive approach rather than the formalistic language incorporated in it should determine the meaning to be given to this section.

Further, the Supreme Court in Arnit Das1 has pointed out that the JJA

"has been made for taking care of the care and custody of a juvenile during investigation, inquiry and trial, i.e., from the 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".14

This statement itself points out the contradictory positions in the judgment. On the one hand the Court has held that the applicability of the JJA comes to be decided from the point the juvenile is produced before the competent authority. On the other hand it has incorporated investigation as being within the ambit of the JJA which is a stage prior to production of juvenile before the competent authority.

Deciding the applicability of the Act from the point of production of child before the competent authority also renders many provisions of the JJA nugatory or ineffective which operate prior to the production of juvenile before the competent authority. For example, police may arrest a juvenile and release him on bail under Section 18 of the JJA notwithstanding the distinction between bailable or non-bailable offences under the Criminal Procedure Code. This provision will be rendered nugatory if the JJA will come into operation only after the competent authority determines that the child before it is a juvenile. Section 36 of the JJA prohibits publication of any information leading to identification of the juvenile where an inquiry relating to them is pending under the JJA. This provision can be flouted with impunity by newspapers and others by publishing the prohibited information before the child, is produced before the competent authority. In fact this plea was taken in defence by the newspapers (The Pioneer and The Times of India) in the complaint filed by me against them for publishing the photograph of a juvenile arrested by police for allegedly committing murder.15 The child was arrested on the evening prior to the publication of child's photograph in the morning newspaper. The complaint was filed the same morning. The child was to be produced before the competent authority late that afternoon. The counsel for the newspapers argued that the bar of Section 36 was not attracted as no inquiry was pending under the Act when the photos were published. Such a plea if accepted, will frustrate the very purpose of that section. Fortunately, the Juvenile Court in Delhi did not accept the plea and both the newspapers were asked to publish apologies in the matter.16

It is important to note that the JJA does not use the term "trial" anywhere - either in its long title or in any of its provision. The term "adjudication" has substituted the word "trial" used in the Children Act, 1960 it must have a meaning distinct from "trial". However, any discussion on its meaning is beyond the scope of this review.

The important word in the JJA is "inquiry". The word inquiry has been used by the JJA in many sections and has not been defined by it. Section 2 does mention that the words used in this Act and not defined here but defined in the Criminal Procedure Code shall have that meaning unless the context requires otherwise. "Inquiry" under the CrPC is distinct from investigation and trial. However, a close scrutiny shows that the word "inquiry" has been used in the JJA differently. It refers to investigation, inquiry as well as trial in different sections.17 By restricting its scope to one or the other will frustrate the purposes of some sections or will introduce anomalies in the legislation. For example, if inquiry is given the same meaning as in CrPC, its usage in the JJA will have to be limited to holding of inquiry in the age of the accused and not be inclusive of proceedings that determine that the child has committed the offence. Section 21, however, lays down the orders that may be made by competent authority when satisfied "on inquiry that a juvenile has committed an offence ...". Similarly, there will be problems in applying Sections 3 and 36 as mentioned above.

The Supreme Court found fault with the reasoning of the Calcutta High Court in Dilip Saha6. It brushed aside the importance of Article 20(1) of the Constitution in determining the issue of applicability of the JJA to children who cease to be so by the time they are brought before the competent authority. Article 20(1) prescribes that no person shall be subjected to penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The article refers to the penalty that might be inflicted at the time of commission of the offence and not the penalties that might be inflicted on the date of appearance of the accused before the court of law. What is the penalty that might be inflicted on a person who was a child on the date of the offence? If the date of appearance is the date to determine what law will apply to such a child, then it introduces uncertainty as to what punishment may be imposed on such a person. It introduces two sets of regimes that will determine penalties that might be inflicted on such a child. The child who continued to be a child when produced before the competent authority will be subjected to the protective regime of the JJA. The other child who is not so produced for whatever reasons, including slack investigation by police, will be subjected to the penal regime of the criminal proceedings. This interpretation not only violates Article 20 but also the right to equality before law. How can two children of same age committing an offence be subjected to differential regimes without violating the constitutional guarantees under Articles 14, 20 and 21?

The JJA certainly deals with juveniles and has been enacted to provide care, protection, treatment, development and rehabilitation of juveniles. An interpretation that extends the benefits of this legislation to children is to be preferred over another that excludes it. The Supreme Court itself has mentioned that this exercise would have been unnecessary if the legislature had not left an ambiguity in the definition. Once it is agreed that there is an ambiguity, it is in consonance with the previous practice of the Supreme Court to resolve it to extend the benefits to children. There is nothing in the sections or scheme that categorically prevents the court to apply the JJA to all those who were children on the date of commission of offence. On the contrary the precedents, provisions and scheme point to the opposite direction.

In the end, it is important to remember that a "decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141".18 It is submitted that Arnit Das1 cannot be treated as laying down a ratio decidendi that age at the time of commission of offence is not decisive of applicability of the JJA. The facts clearly mention that the accused was not a child on the date of the offence. Hence, the question whether the JJA would have applied if he had ceased to be so when produced before the competent authority, did not survive for determination in this case. Whatever the Court has said on the subject is its opinion on a hypothetical question and not a decision on an issue in the case. Arnit Das1 does not have any more binding force than the opinion of the Supreme Court in Umesh Chandra2. In Umesh Chandra2 the Supreme Court had opined that the age at the time of commission of offence was decisive of applicability of the Act. In that case the facts did not mention that the juvenile had ceased to be so by the time he was produced before the competent authority. The Court had expressed its opinion because the matter was argued before it.

As neither decision lays down a precedent, it is urged that the opinion of the Supreme Court in Umesh Chandra2 should be preferred over Arnit Das1 as it extends the benefits to children and does not discriminate among children.

*   Reader, Faculty of Law, University of Delhi. Return to Text

1. (2000) 5 SCC 488 : 2000 SCC (Cri) 962 Return to Text
2. (1982) 2 SCC 202, 210 : 1982 SCC (Cri) 396 Return to Text
3. (1998) 5 SCC 697 : 1998 SCC (Cri) 1381 Return to Text
4. (1997) 8 SCC 720 : 1998 SCC (Cri) 125 Return to Text
5. 1984 Supp SCC 228 : 1984 SCC (Cri) 478 Return to Text
6. Dilip Saha v. State of W.B., AIR 1978 Cal 529. Return to Text
7. Krishna Bhagwan v. State, AIR 1989 Pat 217. Return to Text
8. Arnit Das at p. 497. Return to Text
9. (1981) 4 SCC 149 : 1981 SCC (Cri) 809 Return to Text
10. Ghanshyam v. State, 1982 Cri LJ 138 (All). Overruled in Ghanshyam v. State of U.P., (1982) 2 SCC 400 : 1982 SCC (Cri) 449. Return to Text
11. Bhudha Singh v. State of Punjab, 1979 Chand LR (Cri) 114. Return to Text
12. Section 2(h) of the JJA. Return to Text
13. Id., Section 2(e). Return to Text
14. Arnit Das, at p. 500. Return to Text
15. Date of filing the complaint - 12-9-1995. Return to Text
16. Date of decision of Juvenile Court - 2-12-1998. Return to Text
17. Ved Kumari: Treatise on the Juvenile Justice Act, pp. 150-54 (1993). Return to Text
18. Arnit Das, at p. 498. Return to Text