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In Defence of Arnit Das v. State of Bihar : A Critique
by R.D. Jain*

Cite as : (2001) 2 SCC (Jour) 9

Editorial Comment

Despite the forceful arguments advanced by both Prof. B.B. Pande and Dr Ved Kumari rightly criticizing Arnit Das one is tempted to develop sympathy for the arguments advanced by Shri. R.D. Jain. It appears he squarely and effectively meets the criticisms levelled by both the authors.

Prof. Pande seems to have correctly captured the intention of the court which according to him, 'is propagating a new vision of Juvenile Justice'. And he reiterates this view by referring to the reforms that tends swing in the direction of treating delinquencies more like ordinary crimes or, tends to take delinquency seriously. Prof. Pande's analysis of case law is indeed balanced and he correctly notices the almost consistent view of the Supreme Court on the age for application of the Juvenile Justice Act, 1986. He commands to his aid a large number of cases where the Supreme Court favoured the view that the age of delinquency should be determined as on the date of commission of the act.

In several cases the Supreme Court while confirming conviction of the persons who were juveniles at the time of conviction but became adults as on the date of judgment, set aside the sentence as they could not be sent to an institution meant for juveniles. Decisions such as Bhola Bhagat v. State of Bihar SCC 1998 SCC (Cri) 125, Pradeep Kumar v. State of U.P. SCC 1995 SCC (Cri) 395 etc. are in point. Prof. Pande does not seem to have thought it necessary to critically examine this trend of letting off adult offenders only on the ground that they were juvenile delinquents at the time of commission of the act.

In fact there is no justification for the court to quash the sentence imposed on these delinquents. One of the aims of the Juvenile Justice Act is to help prepare the delinquent juvenile to be received in the society on his attaining maturity. In the above cases the juveniles have already crossed the age of juvenility and as such instead of being let off they could have been sent to prison to serve their terms. To set aside their sentence while maintaining conviction does not serve any purpose other than the emotional satisfaction that they have not been punished for crimes committed by them during juvenility. If the purpose of the law is not to attach criminal responsibility or for that matter to resort to soft handling the intensity of their responsibility could be lessened and they be dealt with leniently rather than being let off when they are adults inviting the wrath of criticism from the public. Probably there is rethinking by the court as opined by Prof. Pande.

Dr Ved Kumari concedes the possibility of an interpretation resorted to by the Arnit Das Court. She says:

"Juvenile is a person who has not attained the specified age and delinquent juvenile is the juvenile found to have committed an offence. 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. But she quarrels with this sort of reasoning as it is not constructive to the aims and objects of the Act to extend uniform care and protection."

Indeed, the Supreme Court - though while interpreting a state pari materia statute - declared that Children Act, 1960 was enacted to protect young children from the consequences of their acts on the footing that their mind at that age could not be mature for imputing mens rea as in the case of an adult. (Umesh Chandra v. State of Rajasthan, SCC 1982 SCC (Cri) 396).

In fact there does not appear to be any basis for this formulation. The Juvenile Justice Act essentially lays down elaborate procedure for dealing with juveniles who are found to be delinquents. Their capacity or capability to commit crimes are to be considered in determining their culpability. The act aims at the welfare of those who are found to be delinquents and not to all juveniles. And it appears the law reposes much faith in the impression of the authority on the age of the juvenile on his producing before it. The faith is so strong that his finding is given respectability even if it is later found that the juvenile was really above the age limit. The idea seems to speed up the proceedings right from the day of producing before the authority.

In the administration of criminal justice many impressions remain uninterrogated. Till somebody ventures to explore their philosophical underpinnings they are taken for granted. It seems to have been the general impression shared even by the Supreme Court that age of applicability was to be determined at the stage of commission of delinquent act. The present Bench of the Supreme Court has pried open this impression and argues that this impression has no foundation.

It is interesting to note that another Bench of the Supreme Court in a decision rendered after a day of the Arnit Das decision reiterated its earlier ruling of releasing the offender though an adult, because at the time of commission of the delinquent act he was a juvenile (Umesh Singh v. State of Bihar, SCC 2000 SCC (Cri) 1026. This is indicative of the inability of the court to act as an integrated institution.

May be, Arnit Das is open to challenge as it overturns some notions which were hitherto held unquestioned. However, its potential for generation of a healthy debate has to be appreciated. And the authors added momentum by raising refreshingly refined arguments.

The decision rendered in the case of Arnit Das v. State of Bihar1 has evoked a new controversy regarding the effective date when the provisions nay benefits, of Juvenile Justice Act 1986 (for short Juvenile Justice Act) have to be extended to an offender. According to Dr Ved Kumari2, the relevant date should be the date when the offence is committed and not the date when the offender is put to trial.

The Juvenile Justice Act does not provide answers to several questions. What happens if the delinquent attains the age of 25 years before he is brought before a court? Again, what happens if the trial protracts unusually for a very long period due to the delinquent's acts and he crosses the age of 25 years? It was in this area that Arnit Das offers answers. In order to appreciate the logic of Arnit Das (supra) it would be apt to refer to the provisions of Juvenile Justice Act which unfold the law maker's intent reflected in the scheme of the Act. Section 2 of the Juvenile Justice Act defines certain terms as under:

"2. In this Act, unless the context otherwise requires:

(e) 'delinquent juvenile' means a juvenile who has been found to have committed an offence;

(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."

Thus on the date of offence, a child falling within the age group aforesaid, presents no difficulty and he is bound to get the protection of Juvenile Justice Act.

Section 3 of Juvenile Justice Act is yet another provision which expresses legislative intendment. It reads:

"3. Continuation of inquiry in respect of Juvenile 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, not withstanding anything contained in this Act, or in any other law for the time being in force, the inquiry may be continued and order may be made in respect of such person as if such person had continued to be a juvenile."

Section 3 takes care of a juvenile after the initiation of inquiry. The term "inquiry" has not been defined in Juvenile Justice Act. But under Section 2(t) of Juvenile Justice Act all words and expressions used but not defined in this Act and defined in the Code of Criminal Procedure, 1973, shall have the meanings respectively assigned to them in that Code. Under the Code of Criminal Procedure the term "inquiry" has been defined under Section 2(g) to mean every inquiry, other than a trial, conducted under this Code by a Magistrate or court. The word "inquiry" has to be distinguished from "trial". Inquiry stops where the trial begins.3

Thus the two stages present no difficulty. A juvenile committing an offence would unerringly get the benefit of Juvenile Justice Act and if such a delinquent is brought before the Magistrate/Sessions Judge, when he is still juvenile, the pendency of inquiry will not have any impact and the juvenile ceasing to be so during the course of inquiry, would continue to be treated as juvenile. In order to understand the problem better let us consider three different stages during which the age of juvenility requires consideration:

(i) The date on which the offence is committed;

(ii) The date on which the juvenile is produced before the Magistrate and inquiry commences; and

(iii) The period between the date of commission of offence and the date when the juvenile is brought before a court.

The first two stages present no difficulty. A juvenile committing an offence continuing to be a juvenile on the date of commencement of inquiry will avail the protection of Juvenile Justice Act. However, in a case where a juvenile crosses the age of juvenility before he is brought before a court and inquiry in relation to determination of his age begins, other factors also assume importance. In case the age at the time of commission of offence alone is material, we would be adding something in Section 3 of Juvenile Justice Act which the Parliament never intended. A million dollar question is as to what prevented the Parliament to frame Section 3 in the following language:

"3. Continuation of inquiry in respect of Juvenile who has ceased to be a Juvenile.—After the offence has been committed by a juvenile and till such period when he is produced before a court and also after an inquiry is 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 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."

It need hardly be emphasized that the enactment has to be read as it is. Nothing has to be read into it. Nor anything has to be subtracted from it. When the words of a statute are clear plain or unambiguous, or in other words, they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of its consequences. Relying on certain passage from Maxwell on the "Interpretation of Statutes" and from Crawford on "Statutory Construction" it has been stated that "it is the duty of a judge to make such construction of a statute as shall suppress the mischief and advance the remedy" but a caution has been appended to such construction to the effect that "the construction must not be strained to include cases plainly omitted from the natural meaning of the words".4 The situation would be contrary when the language of statute admits of two different interpretations.5

In the case at hand Section 3 admits of only one interpretation. It encompasses within its fold the age of juvenile after the inquiry commences and not before that and obviously the endeavour of a jurist would be to find out the object of leaving this hiatus between the period when an offence is committed and the date on which the inquiry is commenced. It is this period which has been taken care of in the case of Arnit Das.

Dr Ved Kumari emphasizes on the objectives of the Juvenile Justice Act and rightly argues that it harps on curative rather than on deterrent effect. But, the law has to take care of the twin objects. It has to keep the balance between the conflicting interests.

This theory of balancing conflicting social interests was articulated by the Supreme Court in Sevaka Perumal6 thus:

"The law regulates social interests, arbitrates conflicting claims and demands security of persons and property of the people as an essential function of the State. It could be achieved through instrumentality of criminal law".

The Supreme Court recognised the necessity of harmonizing cross cultural conflict where living law must find answer to the new challenges. It was emphasized that "lawlessness would undermine social order and lay it in ruins". It was in this background that the hypothesis about a boy or girl of just less than 16 or 18 years of age committing an offence and leaving the country or is not brought before the competent authority until he or she attains the age of 50 years was posed by the court. The hypothesis may appear to be an extreme illustration but similar instances though with less severity have been noted down confronting the courts when the proceedings continued until the juvenile attained the age of more than 25 years and the proceeding had to be dropped.7 Such illustrations may be multiplied. Some deadline has to be drawn somewhere. Without this the lower courts would be groping in darkness.

The Court seems to think that a delinquent desirous of availing the benefit of Juvenile Justice Act should not adopt a fugitive attitude and instead should appear before the Court before it is too late.

Dr Ved Kumari quarrels with the decision in Arnit Das on the following arguments:

1. Having recorded a finding that the age of accused at the time of occurrence being above 16 years the Court need not have gone to the general question of age for application of the Act.

2. The Supreme Court did not consider the case of Umesh Chandra v. State of Rajasthan8 while recording a contrary conclusion.

3. The scheme of the Act indicates policy of encompassing children who were below the specified age at the time of occurrence but ceased to be so during the inquiry9 and the word "inquiry" used in Juvenile Justice Act encompasses within it "investigation", "inquiry" as well as "trial".

4. The interpretation as adopted by the Supreme Court will result in anomalies. The child who continued to be a child when produced before the competent authority will be protected but a child not so produced by investigating agency will be treated differently.

These arguments do not seem to hold water as explained below:

As to Point No. 1

At the outset it may be mentioned that the word "infructuous" used by the writer is inappropriate.

The essence of a decision giving binding effect to it is not its conclusion in the facts and circumstances of the case but the principle laid down therein is termed as its ratio.10 On facts no two cases can be similar. Supreme Court's decision essentially on questions of facts cannot be relied upon as precedent.11

For securing certainty and avoiding confusion it was necessary rather utmost important to have given an authoritative pronouncement of Juvenile Justice Act on points where gaps were left by the Parliament as the certainty of law is the safety of the citizen. The question decided is not hypothetical. When long arguments were addressed on that question12 because of its importance it was appropriate that the court declared the law.

Point No. 2

The ratio of the case of Umesh Chandra (supra) referred to by the writer is based on different premises and is not related to the issue as to on which date will the juvenility be determined for more than one reasons:

1. In the case of Umesh Chandra the provisions of Rajasthan Children Act, 1970 were interpreted and in particular Section 26 came for consideration. Section 26 of Rajasthan Children Act provided for cases pending on the date when the Rajasthan Children Act came into force. The provision reads:

"26. Special Provision in Respect of Pending Cases.—Notwithstanding anything contained in this Act, all proceedings in respect of a 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 child has committed an offence it shall record such finding and instead of passing any sentence in respect of the child forward the child to the children's court which shall pass orders in respect of that child in accordance with the provisions of this Act as if it has been satisfied on inquiry under this Act that the child has committed the offence."

The question as to the age of child on the date the inquiry commences was not germane to the controversy in this case and the Court itself observed that the question was not necessary to be decided. Para 26 of the case of Umesh Chandra reads as under:

"In view of our finding that at the time of occurrence the applicant was undoubtedly a child within the provisions of the Act, the further question if he could be tried as a child if he had become more than 16 years by the time the case went upto the court does not survive because the Act itself takes care of such a contingency."

2. The case of Umesh Chandra related to the stage where the offence was committed prior to the enforcement of the Rajasthan Children Act. Section 26 of the Juvenile Justice Act being a provision akin to Section 26 of the Rajasthan Children Act that pronouncement will be attracted only to such cases where the occurrence took place prior to the enforcement of Juvenile Justice Act, the case remaining pending at the time Juvenile Justice Act came into force. Umesh Chandra cannot be an authority for the proposition regarding the date of being juvenile in a case cropping up after the enforcement of the Juvenile Justice Act.

3. The ambit of the two cases, i.e. Arnit Das and Umesh Chandra being different and the two cases dealing with two different situations, it was not even necessary to refer to the case of Umesh Chandra while deciding the case of Arnit Das and this was exactly the reason why it was not referred to by the court.

4. The case of Arnit Das deals with the applicability of Juvenile Justice Act and importance of the age of being juvenile in a case where after the occurrence a long period passes and the juvenile remains untraceable. The Court was concerned with cases where in the name of juvenility criminal overreach the process of court. The Supreme Court in fact made the declaration of law to fill up the vacuum and the decision being on a question of law has binding effect.

It is also to be remembered that the courts have no power to amend the law by a process of interpretation, but "the courts have power to mend it so as to bring it in conformity with the intendment of legislature". The power of Supreme Court to resort to this is well recognised.13

5. The holding of Arnit Das is of precendential value as the decision was rendered on the basis of arguments and deliberation.14 A question of law having been decided, it has to be followed in letter and spirit.15 Even if it is taken as an obiter, it still has binding effect.

Point No. 3

Dr Ved Kumari understands "inquiry" as encompassing all the stages, i.e. "investigation", "inquiry before a Magistrate" and "trial". The bald observation and extended definition given to the word "inquiry" however, ignores the purpose of the Act and blurs the real shade behind the word. The word "inquiry" has no different nuances except to be confined to the stage where the Magistrate holds an inquiry. Under Section 8, the word "inquiry" is used in the context of the power given to the Magistrate. In chapter IV the procedure is laid down for dealing with the delinquent juvenile by the courts. In this chapter the term "inquiry" is used in its ordinary connotation. It is felt that the word "inquiry" is not used in Juvenile Justice Act so as to encompass within it the stage of "investigation" also. The word "inquiry" enfolds within it the stage of proceeding before the court. Of course while dealing with neglected juveniles, the term inquiry has been used differently. But, their cases are not to be handled by juvenile courts and there is no similarity between the cases of neglected juveniles and delinquent juveniles.

Under Section 39 the procedure for trials in summons case is to be followed in relation to juvenile delinquents. The term "trial" has also been separately used in the context of juveniles in Section 24(2) of Juvenile Justice Act. Thus, "investigation" is not to be confused with "inquiry" and as to the term "trial" it cannot be included within the word "inquiry" since there is separate provision for it.

Thus the term "inquiry" cannot be mixed up with "investigation" and Section 3 employing the term "inquiry" should not mean the stage of investigation. It only means the stage when the proceeding before the Magistrate has commenced.

In conclusion, the Juvenile Justice Act does not take care of the stage after the occurrence and before the initiation of a proceeding before the Magistrate and it is for that stage that the interpretation adopted in Arnit Das will apply.

Point No. 4

An anomaly is sought to be projected between a juvenile who is already facing the inquiry before the court and the one who has not been so produced by the police department for reasons of negligence or otherwise.

The argument on this alleged distinction ignores the various provisions of Juvenile Justice Act. In fact, a calendar of events has been prescribed by Juvenile Justice Act. There is not even the remotest possibility of such a situation being faced at any point of time, in view of the following provisions:

(i) A juvenile on being arrested has to be released on bail by the juvenile court. In the alternative he has to be kept in the observation home (Section 18 of Juvenile Justice Act).

(ii) If a police officer arrests a juvenile he will immediately inform the parents or guardian of such arrest and direct him to keep the delinquent present before the juvenile court (Section 19 of Juvenile Justice Act).

(iii) The probation officer is to be informed about the arrest of the juvenile who shall prepare and find out the family history of the juvenile (Section 19 of Juvenile Justice Act).

(iv) The probation officer is required to submit his report within a period of 10 weeks (Section 33 of Juvenile Justice Act).

(v) The inquiry by the Magistrate is to be finished within three months (Section 27(3) of the Juvenile Justice Act).

(vi) Final order is to be passed requiring the juvenile to be sent to special home for a period of three years or to be released on admonition or on probation (Section 21).

In view of this calendar there is hardly any scope of the delay being caused at the end of the enforcement machinery provided under the Juvenile Justice Act. It is different if the juvenile disappears and is not apprehended for years. In that case the Supreme Court has commanded for exclusion of the protection of Juvenile Justice Act to be availed by the juvenile. After all the law has to be interpreted in a manner so as to impress upon the law breakers that non-observance of law is contra productive.

When the possibility of correction of a juvenile is absent and the offender has attained an age beyond corrigibility, the protective umbrella of Juvenile Justice Act cannot be extended to him/her. In the words of Goethe, "in praising or loving a child, we love and praise not that which is but that which we hope for." It seems that judgment in Arnit Das hopes for a generation in which juveniles do not indulge in criminality and having indulged do not avoid the process of law. It carries a message to all that obeisance to law pays.

*        Senior Advocate, Madhya Pradesh High Court, Lashkar, Gwalior (M.P.) Return to Text

  1. (2000) 5 SCC 488 : 2000 SCC (Cri) 962. Return to Text
  2. See Ved Kumari "Relevant date for applying the J.J. Act", (2000) 6 SCC (Jou) 9. See also Prof. B.B. Pande, "Rethinking Juvenile Justice: Arnit Das Style", (2000) 6 SCC (Jou) 1 (Ed). Return to Text
  3. Kingam Savaranna v. State : AIR 1957 AP 472. Return to Text
  4. State of Uttar Pradesh v. Vijay Anand : AIR 1963 SC 946. Return to Text
  5. Jitendra Tyagi v. Delhi Administration : AIR 1990 SC 487. Return to Text
  6. Sevaka Perumal v. State of Tamil Nadu, (1991) 3 SCC 471. Return to Text
  7. Jayendra v. State of U.P., (1981) 4 SCC 149. Return to Text
  8. (1982) 2 SCC 202. Return to Text
  9. Section 3 of J.J. Act. Return to Text
  10. B. Shama Rao v. Union Territory, AIR 1967 SC 1480 Return to Text
  11. Amritsar Municipality v. Hazara Singh, AIR 1975 SC 1087 Return to Text
  12. Paras 3 and 4 of Arnit Das (supra n-1). Return to Text
  13. Sarban Singh v. Union of India, (1995) 4 SCC 546. Return to Text
  14. Som Wati v. State of Punjab, AIR 1963 SC 151. Return to Text
  15. Jaishree v. Rajdiwan, AIR 1962 SC 83. Return to Text
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