PIL 39/2011 BEFORE HON BLE MR JUSTICE AMITAVA ROY HON’BLE MR JUSTICE C.R.SARMA JUDGMENT AND ORDER( CAV) AMITAVA ROY, J The instant petition has been registered suo moto on the letter dated 3. 7.2011 addressed to the Hon’ble the Chief Justice of this Court by Smti. Minna K abir, a Child Rights Activist, essentially for expediting the proceedings bef ore the Juvenile Justice Board, Morigaon( hereafter referred to also as the ’Boa rd’) initiated on an application filed on behalf of Ramdeo Chauhan @ Rajnath Ch ouhan seeking his release in terms of the provisions of the Juvenile Justice ( Care and Protection of Children) Act, 2000 ( for short, hereinafter referred t o as the ’Act’) ( as amended), read with the Juvenile Justice ( Care and Protect ion of Children) Rules, 2007 ( for short, hereafter referred to as the ’Rules’), on a redetermination of his age in accordance with Rule 12 of the Rules. The a pplication before the Board has been registered as petition No.3164/2010 on 22.1 2.2010. 2. We have heard Mr MK Das, Advocate assisted by Ms Swaraswati Johari, Advo cate representing Human Rights Law Network ( for short, ’HRLN’), a non-governm ent social organization, for the applicant, Mr PS Deka, Govt. Advocate for the S tate of Assam and Mr DK Mishra, Senior Advocate acting as Amicus Curiae. 3. Before adverting to the essential legal issues bearing on the reliefs pr ayed for, it is considered expedient to outline the factual backdrop sans, unnec essary details. 4. The applicant was made to stand a sessions trial being charged under sec tions 323, 325 and 326 IPC and was eventually convicted on all the charges by th e judgment and order dated 31.3.98 in Sessions case No.31(M)/1993 ( correspondin g to GR No.164/1992) passed by the learned Sessions Judge, Morigaon. On such co nviction he was awarded the capital punishment of death. The date of the offence was 8.3.1992. The death penalty was confirmed by this Court in Criminal Death Reference No.1/1998 and Criminal Appeal No.109(J)/1998. The Hon’ble Apex Court in Criminal Appeal No.4/2010 sustained the penalty. The applicant thereafter fi led a Review petition before the Hon’ble Apex Court being No.1105/2000 for recon sideration of the determination of his age as made by the learned trial court. T he Review petition was dismissed by the majority of two to one. The death pena lty was eventually commuted to one of life imprisonment by His Excellency, the Governor of Assam, vide order No.GDJ.138/2000/52 dated 20.12.02. 5. In the writ petition filed by the victim’s relatives before the Hon’b le Apex Court registered as Writ Petition (Civil) No.457/2005 the aforementioned order of commutation was set aside on 5.9.2009. The applicant thereafter approa ched the Hon’ble Apex Court with a Review petition being Review Petition( Civil) No.1378/09 which was disposed of on 19.11.2010 restoring the order of His Excel lency, the Governor of Assam commuting the death sentence to one of life impriso nment. 6. The Hon’ble Apex Court in response to the plea of juvenility raised by t he applicant in Review petition (Civil) No.1378/09 observed hereinbelow in its j udgment and order dated 19.11.2010 : 86. Now the only question which remains to be considered is whether th e petitioner is entitled to insist on a fresh look at his juvenility and a fresh consideration of his rights in view of the changes in the Juvenile Justice( Car e & Protection of Children) Act, 2000 by 2006 amendment. 87. This point has not been stated in the review petition even though th is was argued b the learned counsel for the petitioner. 88. Mr P.S. Patwalia, the amicus curiae appearing in the case, objected to this Court making a pronouncement of this question which is argued for the fi rst time in review even though it is not pleaded in the review petition as a gro und for review. 89. This court finds some substance in the said objection. We have alrea dy indicated that in the Article 32 petition notice was served on the review pet itioner and it was open to him to raise these points in that proceeding as by th at time the Juvenile Justice( Care and Protection of Children) Act, 2000 as amen ded by the 2006 amendment Act had come into force. 90. Even though the ambit of the review petition has been widened by thi s Court in Eswara(supra), it has to follow broadly the principles of review unde r Order XLVII Rule 1 of the Code of the Code of Civil Procedure. 91. Following the discipline of Order XLVII, Rule 1 or the concept of ’a n error apparent on the face of the record’, we possibly cannot pronounce in a r eview petition on a question, which was open to be raised in the original procee ding, but was not raised. That apart, it has not at all been pleaded in the revi ew petition. For these reasons, this Court refrains itself from pronouncing on t he rights of the petitioner under Juvenile Justice ( Care and Protection) Act, 2 000 as amended by the 2006 Amendment. If he is so advised, it is open to the pet itioner to agitate on his rights under the said Act before the appropriate For um and in appropriate proceedings. 92. If such a proceeding is initiated by the petitioner, the same will b e dealt with without being impeded by any observation made or finding reached in any of the judgments arising out of the concerned criminal case against the pet itioner, by any Court, including this Court. 7. It was thereafter that the above referred application was filed by the applicant before the Board on 22.12.2010 seeking in particular, the followin g reliefs : a. Applicant’s age be re-determined in accordance with the provisions of Rule 12 of the Model Rules, 2007 ; b. Applicant be released forthwith as per the provisions of Section 64 of t he JJA 2000/06 r/w Rule 98 of the Model Rules 2007 having spent more than 18 yea rs in prison for an offence committed during the juvenility ; c. The records of h is conviction be removed in terms of Section 19(2) of t he JJA 2000/06. d. Any other order in the interest of applicant, as this Hon’ble Board may deem fit and appropriate in the circumstances of this case. 8. The records of the proceedings before the Board reveal that on receipt of this application, it called for the trial court’s records from the office of the learned District & Sessions Judge, Morigaon which were received eventually on 21.2.2011. On the next date i.e. 23.2.11, the Board made the preliminary scr utiny of the said records and on the prayer made by the learned counsel for th e applicant to get themselves adequately acquainted with the records, the heari ng was adjourned till 11.3.2011. The arguments were heard on that day and the Bo ard by its order dated 23.3.11 on a consideration of the materials available and the submissions made observed that a fresh medial opinion of a duly constitute d Board for determination of the present age of the applicant was necessary in o rder to ascertain his age on the date of the occurrence. The Superintendent of G auhati Medical College Hospital was thereby directed to constitute a Medical Boa rd under Rule 12(b) of the Rules consisting of three doctors to examine the appl icant lodged in the Central Jail, Jorhat to opine on his age as on the date of h is examination. A time frame of 15 days was fixed for the purpose. The records r eveal that the applicant was medically examined on 30.5.2011 by a Medical Board of the Gauhati Medical College Hospital duly constituted for the purpose. Meanwh ile, the Principal Member, Juvenile Justice Board, Morigaon having been transfer red though the medical report was duly received by the Board, the proceedings b efore the it could not be furthered. The Board at present is non-functional for all intents and purposes though steps are afoot to restore its functionin. It is , in this background, that the application filed before the Board along with th e records are before this Court in the instant proceeding. 9. It having been referred additionally in the letter dated 3.7.2011 afor ementioned, that inspite of strong recommendation of the Parole Board for the re lease of the applicant under the Assam Prisons Rules, 1968, the concerned author ities empowered to take a decision thereon had remained inexplicably inert, th is Court by its order dated 19.7.2011 requested the learned Govt. Advocate, Assa m to obtain instructions in this regard. On 21.7.2011 Mr Deka produced a letter being No.NHMB.165/2006/Pt-I/6 dated 20.7.2011 of the Joint Secretary to the Go vt. of Assam, Home Department to the effect that the Inspector General of Prison s, Assam vide his letter No.PRI-74/2008/50 dated 16.3.2011 had forwarded a propo sal to the Home( B) Department along with his recommendation for the final rele ase of the applicant. The letter reveals that the said proposal and the concerne d file had thereafter been endorsed to the Judicial Department of the State on 2 9.4.11 for its views. Subsequent thereto, the Additional Advocate General, Assam on being requested by this Court for his intervention to expedite this process, produced a copy of the letter No.JDJ 225/2011/6 dated 27.7.2011 of the Deputy L.R. & Deputy Secretary to the Govt. of Assam, Judicial Department conveying the view of his department rejecting the proposal for the release of the applicant. 10. The learned Amicus Curiae has pleaded that in the factual backdrop in w hich the instant proceeding has been initiated, this Court in the exercise of it s extra ordinary jurisdiction under Article 226 of the Constitution of India is empowered to adjudicate on the application filed on behalf of the accused applic ant. Mr Mishra with reference to section 6(2) of the Act in particular, submitte d that in terms thereof this Court was equipped with the powers conferred on th e Board by or under the Act considering the nature of the proceeding in hand. Wi th profuse reference to sections 2(k) and 2(l) defining juvenile or child a well as juvenile in conflict with law respectively as well as section 7A, t he learned Amicus Curiae has maintained that it is open for this Court to exami ne the claim of juvenility raised on behalf of the accused applicant. Relying on sections 20 and 64 of the Act, Mr Mishra contended that the provisions thereof are applicable in the facts in hand and that the issue of juvenility ought to be decided in terms of the provisions thereof. This, he contended in particular t o underline the applicability of the provisions of the Act even in a situation w here the proceeding leading to the conviction of a juvenile had culminated fina lly and he/she has been undergoing sentence at the time of commencement of the Act. Mr Mishra to buttress this proposition also referred to Rule 98 of the Rul es. In any view of the matter, the application having been filed to avail the li berty granted by the Hon’ble Apex Court, the issue raised thereunder ought to b e examined as per the provisions of the Act, he maintained. Referring to Rule 12 of the Rules, the learned Amicus Curiae argued that though the medical opinion contained in the certificate dated 23.12.1997 ( exhi bited as Ext.-C at the trial in Sessions Case No.31(M)/93) suggests that the acc used applicant was aged less than 18 years on the date of the commission of the offence , the medical certificate dated 30.5.2011 issued in terms of the order dated 23.3.2011 of the Board demonstrates to the contrary. In terms of the latte r certificate, according to Mr Mishra, even if maximum benefit as contemplated in Rule 12(3) (b) is accorded, the accused applicant can not be considered to be a juvenile under the Act on the date of the offence. However, the medical ce rtificate dated 23.12.97 as well as the transfer certificate ( Ext-’Ka’) and th e evidence of the father of the accused applicant taken together, he can be adju dged to be a juvenile under the Act. Mr Mishra sought to consolidate his argume nts by placing reliance on the decisions of the Apex Court in Mohan Mali and a nother vs. State of Madhya Pradesh (2010) 6 SCC 669 and Daya Nand vs. State of Haryana, (2001) 2 SCC 224. 11. While, the learned State counsel abided by the stand taken by the Judi cial Department of the State against the release of the accused applicant on the remission of the remainder of the sentence, Mr Das has insistently urged with r eference to the averments made in the application that the prayer for redetermin ation of the age of the accused applicant did not contemplate his re-examinatio n by a new Medical Board. According to him, the Juvenile Justice Board, Morigaon misread the application and misconstrued the liberty granted by the Hon’ble A pex Court in ordering re-examination of the applicant by a fresh Medical Board for determination of his age. Mr Das has maintained that in absence of any reaso n recorded by the learned Board as to the unreliability of the medical certifica te/report submitted at the trial, its decision to seek a fresh medical opinion i s unsustainable in law and on facts. Referring to the medical certificate date d 30.5.2011, Mr Das has urged that notwithstanding the very wide range of age limits as mentioned therein in terms of Rule 12(3) (b), the age of the accused applicant ought to be determined as 30 years on the date of his reexamination. I n the alternative, he has argued that having regard to the age of the accused a pplicant as suggested by the medical certificate dated 23.12.1997, he can safely be held to be 33 years at the maximum on 30.5.11. Mr Das emphasized on the duty of the Court, Board and other authorities as contemplated by the Act and the R ules to ascertain the age of a person claimed to be a juvenile in deference to t he letter and spirit of the provisions thereof. The learned counsel has placed reliance on the excepts from several authoritative texts on medical jurisprudenc e to underline that the determination of age of a person above 20 years cannot be effected in an accurate manner rendering it unreliable. He also placed relia nce on the decisions of the Apex Court in Rajender Chandra vs. State of Chhatri sgarh and another, (2002) 2 SCC 287 and also of this Court in Nabam Amas vs. S tate of Arunachal Pradesh, 2010 (1) G LT 622 and Binoy Biswas vs. State of Assa m passed in Crl. Appeal (J) No.2/2005 to buttress his contentions. 12. We have lent our anxious consideration to the pleaded facts, records/do cuments laid before us and the authorities cited for eludicitation of the propos itions advanced. The preamble of the Act introduces the legislation tobe one to consolidate and amend the law relating to juveniles in conflict with law by a dopting a child-friendly approach in the adjudication for the best interest of the children and for their ultimate rehabilitation. This Act replaces the Juve nile Justice Act, 1986 with the definition of juvenile or child under sect on 2(k) to mean a person who has not completed eighteenth year of age. Juvenil e in conflict with law is defined in section 2(l) to mean a juvenile who is all eged to have committed an offence and has not completed eighteenth year of age a s on the date of commission of such offence. A Juvenile Justice Board is contemp lated under section 4 which prescribes as well the composition thereof. This sta tutory body has been empowered to exercise the powers and to discharge the duties in relation to juveniles in conflict with law under the Act. Under sec tion 6(2), the powers conferred on the Board by or under the Act are exercisable by the High Court and the Court of Session, when the proceeding comes before th em in appeal, revision or otherwise. Section 7A makes it obligatory for the court before which a claim of ju venility is raised to make an inquiry, take such evidence as may be necessary s o as to determine the age of such person and record a finding as to whether he/s he is a juvenile or a child or not and state his/her age as nearly as may be. Th at a claim of juvenility may be raised before any court even after the final di sposal of the case and that in such an eventuality, the claim has to be determin ed in terms of the provisions of the Act and the Rules made thereunder, even i f, the juvenile has ceased to be so on or before the date of the commencement t hereof, is clearly stipulated in the proviso to section 7A. Section 7A(2) manda tes that if a court finds a person to be juvenile on the date of the commission of the offence under sub-section(1), it would forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shal l be deemed to have no effect. Section 20 in clear terms makes the provisions of the Act applicable to the cases pending on the date of its commencement. The Explanation incorporate d in this section ordains that in all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict wi th law in any court, the determination of juvenility has to be in terms of secti on 2(l), even if a juvenile has ceased to be so on or before the date of commenc ement of the Act and the provisions thereof would apply as if it had been in fo rce for all purposes at all material times when the alleged offence had been co mmitted. Under section 49, the competent authority as defined in Section 2(g) is to make due enquiry as to the age of a person brought before it, if he/she appe ars to be a juvenile or a child and for that purpose, take such evidence as may be necessary and record a finding whether the person is a juvenile or child or n ot and state his age as nearly as may be. Section 64 which deals with juvenile in conflict with law undergoing se ntence at the commencement of the Act i.e. 1.4.2001, enjoins that the State Gov ernment shall direct such juvenile in lieu of undergoing such sentence be sent to special home or be kept in a fit institution in such manner as it would thi nk fit for the remainder of the period of the sentence and that the provisions of the Act would apply to him/her as if he/she 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 section 16(2) of the Act. The Explanation to this section clarifies in clear terms that in all cases where a juvenile in c onflict with law is undergoing a sentence of imprisonment at any stage on the d ate of the commencement of the Act, his/her case including the issue of juvenili ty should be decided in terms of section 2(l) and other provisions of the Act an d the Rules made thereunder irrespective of the fact that he/she had ceased to be a juvenile on or before such date and be sent to the special home or a fit i nstitution as the case may be for the remainder of the period of the sentence su bject to the maximum term as provided in section 15. 13. Rules not having been framed by the Government of Assam , the model Rules i.e. Juvenile Justice (Care and Protection of Children) Rules, 2007 fra med by the Central Government, in terms of the proviso to Rule 68 would apply. Rule 12 which delineates the procedure to be followed in the determina tion of age of a child or a juvenile in conflict with law is of utmost signific ance for the issues in hand. Rule 12(2) stipulates that a court or a Board or a Committee as the case may be, shall decide the juvenility or otherwise o f the juvenile or the child or as the case may be, the juvenile in conflict w ith law, prima facie on the basis of the physical appearance or documents, if available. Sub rule (3) ordains that the age determination enquiry shall be cond ucted by the court or the Board or the Committee by seeking evidence in the f orm of :- (i) the matriculation or equivalent certificates, if available ; and in th e absence thereof ; (ii) the date of birth certificate from the school( other than a play school ) first attended, and in the absence thereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat ; 14. Rule 12(3) (b) requires that only in the absence of any of the above f orms of evidence/proof, medical opinion would be sought from a duly constituted Medical Board which will declare the age of the juvenile or the child. It is provided as well that in case the exact assessment cannot be done, the Court o r the Board or as the case be ,the Committee, for reasons to be recorded by the m, may, if considered necessary, give benefit to the child or the juvenile by co nsidering his/her age on lower side within the margin of one year. The finding in respect of the age in the manner so indicated would be th e conclusive proof thereof as regards the child or the juvenile in conflict wit h law. Whereas sub-rule(4) makes it incumbent on the court or the Board or the Committee as the case may be to pass an order in writing stating the age and declaring the status of juvenility or otherwise, sub-rule(5) bars further inquir y in this regard save and except where the same is required inter alia in term s of sections 7A and 69 and the Rules. Under Rule 98, the State Government or a s the case may be the Board may, either suo motu or on an application made for the purpose, review the case of a person or a juvenile in conflict with law, de termine his juvenility in terms of the provisions contained in the Act and Rul e 12 and pass appropriate orders in the interest of the juvenile in conflict wit h law under section 64 of the Act for his immediate release if his period of det ention/imprisonment has exceeded the maximum period provided in section 15. 15. A conjoint reading of the provisions of the Act and the Rules recite d hereinabove evinces a solemn statutory duty of a Court , a Board , a Child W elfare Committee or the competent authority as the case may be to examine the i ssue of juvenility of a person claiming to be a child or a juvenile in conflict with law on the date of commission of an offence and ascertain his/her age by taking such evidence as may be considered necessary and thereafter pass appropri ate orders or issue necessary directions as enjoined by the Act and/or the Ru les. That the provisions of the Act and the Rules, bearing on the aspect of juv enility are applicable to a person who is a juvenile in conflict with law as def ined, even