TMI Blog2000 (5) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... o the FIR, one Abhishek was shot dead on that day. On 13.9.1998 the petitioner was arrested in connection with the said offence. On 14.9.1998 the petitioner was produced before the Additional Chief Judicial Magistrate, Patna who after recording his statement under Section 164 of the Code of Criminal Procedure remanded him to Juvenile home, Patna. The petitioner claimed to have been born on 18.9.1982 and therefore a juvenile, entitled to protection of The Juvenile Justice Act, 1986, (hereinafter The Act for short). The petitioners claim was disputed on behalf of the prosecution. The A.C.J.M. directed an enquiry to be held under Section 32 of the Act. The petitioner was referred to examination by a Medical Board. On receipt of the report of the Medical Board and on receiving such other evidence as was adduced on behalf of the petitioner, the A.C.J.M. concluded that the petitioner was above 16 years of age on the date of the occurrence and therefore was not required to be tried by a Juvenile Court. The finding has been upheld by the Sessions Court in appeal and the High Court in revision. The petitioner has filed this petition seeking leave to appeal. Leave granted. Two questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of juvenile justice in terms of investigation and prosecution, adjudication and 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 of the 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference to which the age of a boy or a girl has to be determined so as to find out whether he or she is a juvenile or not. The learned Additional Solicitor General submitted that the answer is to be found in Section 32 of the Act which reads as under :- 32. Presumption and determination of age. (1) 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 enquiry 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 purpose of this Act, be deemed to be the true age of that person. It is submitted by the learned Additional Solicitor General that order of the competent authority h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure, or in any other law for the time being in force, be released on bail with or without surety unless there appears reasonable grounds for believing that the release is likely to bring him in association with any known criminal or expose him to moral danger or that his release would defeat the ends of justice. In the latter case, the person has to be kept in an observation home or a place of safety until he can be brought before a Juvenile Court. The Juvenile Court if not releasing the person on bail must not commit him to prison but send him to an observation home or a place of safety during the pendency of the enquiry before him. Under Section 20, where a juvenile charged with an offence appears or is produced before a Juvenile Court, the Juvenile Court shall hold an enquiry in accordance with the provisions of Section 39. A reading of all these provisions referred to herein above makes it very clear that an enquiry as to the age of the juvenile has to be made only when he is brought or appears before the competent authority. A Police Officer or a Magistrate who is not empowered to act or cannot act as a competent authority has to merely form an opinion guided by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty, birth or other status. 2.2 For purposes of these Rules, the following definitions shall be applied by Member States in a manner which is compatible with their respective legal systems and concepts: (a) A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult. (b) An offence is any behaviour (act or omission) that is punishable by law under the respective legal systems; (c) A juvenile offender is a child or young person who is alleged to have committed or who has been found to have committed an offence. 2.3 Efforts shall be made to establish, in each national jurisdiction, a set of laws, rules and provisions specifically applicable to juvenile offenders and institutions and bodies entrusted with the functions of the administration of juvenile justice and designed : (a) to meet the varying needs of juvenile offenders, while protecting their basic rights; (b) to meet the needs of society; and (c) to implement the following rules thoroughly and fairly. xxx xxx xxx xxx xxx xxx xxx xxx 5. Aims of juvenile justice 5.1 The juvenile justice system shall emphasize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an observation home or entrusted to an after care organisation where there would all be boys and girls of less than 16 or 18 years of age. Would he be required to be dealt by a Juvenile Welfare Board or a Juvenile Court ? The learned senior counsel, with all the wits at his command, had no answer till the end and had to give up ultimately. We are, therefore, clearly of the opinion that the procedure prescribed by the provisions of the Act has to be adopted only when the competent authority finds the person brought before it or appearing before it is found to be under 16 years of age if a boy and under 18 years of age if a girl on the date of being so brought or such appearance first before the competent authority. The date of the commission of offence is irrelevant for finding out whether the person is a juvenile within the meaning of Clause (h) of Section 2 of the Act. If that would have been the intendment of the Parliament, nothing had prevented it from saying so specifically. Section 3 of the Act also provides a clue to the legislative intent. It provides for an enquiry initiated against the juvenile being continued and orders made thereon even if such person had ceased to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence or the date of production of the person before the competent authority), the Court shall determine whether the person was a juvenile or not, was neither raised nor decided. A decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not ratio decidendi. This is the rule of sub-silentio, in the technical sense when a particular point of law was not consciously determined. (See State of U.P. Vs. Synthetics Chemicals Ltd. 1991 (4) SCC 138, para 41). Full Bench decision of the High Court of Calcutta in Dilip Saha Vs. State of West Bengal AIR1978 Calcutta 529 and Full Bench decision in Krishna Bhagwan Vs. State of Bihar AIR 1989 Patna 217 were strongly relied on by the learned senior counsel, Shri Lalit submitting that the question specifically arising for consideration before this Court was also before the two High Courts. We have examined the two decisions. In Dilip Saha (supra) the Calcutta High Court, interpreting the provisions of WB children Act, 1959 which is a pari materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Juvenile Justice Act, 1986 having not been taken before the trial court and the trial having proceeded oblivious of the provisions of the Act. During the course of discussion the Full Bench has observed that the juvenile is one who was below a certain age on the date of the commission of the offence but the observation is also based on an assumption and is certainly not a point deliberated upon before the High Court. All this exercise would have been avoided if only the Legislature would have taken care not to leave an ambiguity in the definition of juvenile and would have clearly specified the point of time by reference to which the age was to be determined to find a person a juvenile. The ambiguity can be resolved by taking into consideration the Preamble and the Statement of Objects and Reasons. The Preamble suggests what the Act was intended to deal with. If the language used by Parliament is ambiguous the Court is permitted to look into the preamble for construing the provisions of an Act (M/s. Burrakur Coal Co. Ltd. M/s. East Indian Coal Co. Ltd. Vs. The Union of India and others, AIR 1961 SC 954). A preamble of a statute has been said to be a good means of finding out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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