http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 7

CASE NO.:
Appeal (crl.) 204 of 2008

PETITIONER:
SUDESH KUMAR

RESPONDENT:
STATE OF UTTARAKHAND

DATE OF JUDGMENT: 29/01/2008

BENCH:
C.K. THAKKER & P.P. NAOLEKAR

JUDGMENT:
J U D G M E N T
ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NO. 5639 OF 2007

Judgment Delivered by:

C.K. THAKKER J,
P.P. NAOLEKAR J,

C.K. THAKKER, J.

1. I have had the benefit of going

through the judgment prepared by my learned
Brother. I am in agreement with him that the
appeal deserves to be dismissed. I, however,
decide the appeal on the second ground that on
the facts and in the circumstances of the case,
the appellant has failed to make out a ground
that he was less than 21 years of age at the
time of commission of offence.
2. As observed by my learned Brother, the
accused had not claimed benefit of Section 6 of
the Probation of Offenders Act, 1958 either
before the trial Court or before the High
Court. My learned Brother has also referred to
Yaduraj Singh & Ors. v. State of U.P., (1976) 4
SCC 310 wherein this Court did not allow a new
plea as to age of the accused to be raised for
the first time in this Court.
3. In Sushil Kumar Mehrotra v. State of
Uttar Pradesh, (1984) 3 SCC 123, a similar plea
was raised for the first time by the appellant-
accused in this Court against his conviction
for an offence punishable under Section 302
read with Section 34 and Section 394 of the
Indian Penal Code (IPC). It was held that the
contention of the accused that he was 15= years
of age at the time of occurrence was \021a
complete after thought\022 and refused to grant
the benefit on that basis.
4. It is, no doubt, true that the
provision is beneficial and benevolent in
nature and no \021technical\022 objection should be
raised that such plea was not taken before the
Courts below. [Gopinath Ghosh v. State of West
Bengal, (1984) Supp. SCC 228]. But in my
opinion, there must be credible and trustworthy
evidence in support of such plea. In the
present case, a certificate in the form of
\021Scholar Record & Transfer Certificate\022 is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
annexed wherein the date of birth of the
appellant was shown as June 28, 1962. The
certificate was not on record either before the
trial Court or before the High Court. From the
\021True Copy\022, it is clear that it is purported
to have been issued by the Principal only on
February 10, 2007. Thus, it cannot be said that
there is \021credible evidence\022 or \021trustworthy
material\022 that the appellant was less than 21
years of age at the time of commission of
offence. In my considered opinion, such
question cannot be permitted to be raised for
the first time in this Court and I am in
agreement with my learned Brother on that
point.
5. Since the appeal can be decided on
this ground, I refrain from expressing any
opinion on the question dealt with and decided
by my learned Brother on interpretation of
Section 6 of the Act.
6. The appeal is accordingly dismissed.

P.P. NAOLEKAR, J.

Leave granted.
The appellant was convicted by the judgment and order
dated 26.7.1985 passed by the Additional District & Sessions
Judge, Dehradun, along with another accused person, under
Section 392 read with Section 34 of the Indian Penal Code
(IPC) and sentenced to undergo five years\022 rigorous
imprisonment and further to pay a fine of Rs.5,000/-
and in default of payment of fine to undergo further
rigorous imprisonment for six months. The appellant was
further convicted under Section 25 of the Arms Act and
sentenced to undergo rigorous imprisonment for one year.
In appeal preferred by the appellant, the High Court has
confirmed the order of conviction and sentence by its order
dated 9.7.2007.
The case of the prosecution in brief is that one Jagdish
Prasad was wholesale beedi merchant and carried on his
business in the name and style of M/s. Madrasee Basant
Beedi in Vikasnagar, District Dehradun. Jagdish Prasad used
to go to collect his dues from the retailers on every 15th day.
On 7.3.1981, he went to Purola, Badkot for realization of his
dues. Along with other persons, he was travelling in the car
which was being driven by the driver Gyanendra Singh.
While returning to Vikasnagar from Purola, they had stopped
at the curve of Katta Pather and alighted from the car. Four
miscreants came on scooter and parked the said scooter in
front of the motor car. Two miscreants were armed with
revolvers and the remaining two had khukhries with them.
All of them surrounded Jagdish Prasad and ordered him to
hand over money bag to them. They also threatened him to
shoot and kill him if he made any protest. Jagdish Prasad
quietly handed over the money bag containing about Rs.
25,000/-. He also gave his wrist watch and a golden ring.
Another occupant of the car was compelled to give cash of
Rs.230/- and the driver gave cash of Rs.600/- to them. One
person sitting in the car was forced to give his three wrist
watches. The miscreants snatched away the keys of the car
from its driver. One of the miscreants ran away on the
scooter along with the money bag, while the remaining three
boarded the car and fled away. On appreciation of the
evidence brought on record, the Additional District &
Sessions Judge found the accused persons guilty and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
imposed the punishment which was confirmed by the High
Court as mentioned hereinabove. The accused appellant-
Sudesh Kumar has preferred this appeal against the order of
conviction and sentence.
Shri K.T.S. Tulsi, learned senior counsel appearing for
the appellant has submitted only one point that the accused
at the time of the commission of the crime was below 21
years of age which is apparent from the statement recorded
under Section 313 Cr.P.C. of the accused wherein age of the
accused was given by the accused as 20 years and from the
transfer certificate, filed along with special leave petition,
issued by the Principal, Sanatan Dharma Junior High School,
Dehradun, which shows that the appellant was born on
28.6.1962. It is, therefore, submitted that it is clearly
established that the accused appellant on the date of the
offence, i.e. 7.3.1981, was below 21 years of age and as
such was entitled to consideration and benefit under Section
6 of the Probation of Offenders Act, 1958 (hereinafter
referred to as \023the Act\024 for convenience).
On the other hand, it is urged by Shri Jatinder Kumar
Bhatia, learned counsel for the State that the accused
having not raised the question of his age either before the
trial court or before the High Court, and in the absence of
any reliable material, could not ask for consideration of his
case and benefit under Section 6 of the Act. It is further
submitted that it is the date on which the sentence is passed
which shall be the relevant date for applicability of Section 6
of the Act.
The question involved in this case is of interpretation of
Section 6 of the Act. It would, therefore, be appropriate to
reproduce Section 6 which reads as under:
\0236. Restriction on imprisonment of
offenders under twenty-one years of age. \026
(1) When any person under twenty-one years of
age is found guilty of having committed an offence
punishable with imprisonment (but not with
imprisonment for life), the court by which the
person is found guilty shall not sentence him to
imprisonment unless it is satisfied, that having
regard to the circumstances of the case including
the nature of the offence and the character of the
offender, it would not be desirable to deal with
him under section 3 or section 4, and if the court
passes any sentence of imprisonment on the
offender, it shall record its reasons for doing so.

(2) For the purpose of satisfying itself

whether it would not be desirable to deal under
section 3 or section 4 with an offender referred to
in sub-section (1), the court shall call for a report
from the Probation Officer and consider the report,
if any; and any other information available to it
relating to the character and physical and mental
condition of the offender.\024

While interpreting Section 6 of the Act, a 3-Judge

Bench of this Court in the case of Daulat Ram v. The State
of Haryaya, (1972) 2 SCC 626, has said that the object of
Section 6 of the Act, broadly speaking, is to see that young
offenders are not sent to jail for the commission of less
serious offences mentioned therein because of grave risk to
their attitude to life to which they are likely to be exposed as
a result of their close association with the hardened and
habitual criminals who may happen to be the inmates of the
jail. The Court laid down that Section 6 places restrictions on
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
the court\022s power to sentence a person under 21 years of
age for the commission of crimes mentioned therein unless
the court is satisfied that it is not desirable to deal with the
offender under Sections 3 and 4 of the Act. The court is also
required to record reasons for passing sentence of
imprisonment on such offender.
In another case in the matter of Satyabhan Kishore
and Another v. The State of Bihar, (1972) 3 SCC 350,
this Court (a 3-Judge Bench) reiterated the principle laid
down by the Court in Daulat Ram case (supra) and Shelat,
J. speaking for the Court held that Section 6 lays down an
injunction as distinguished from discretion under Sections 3
and 4 not to impose a sentence of imprisonment on an
offender, unless reasons are recorded.
From the aforesaid judgments, it is apparent that while
imposing a sentence on an accused who is below 21 years of
age and who is found guilty of having committed an offence
punishable with imprisonment which is not the imprisonment
for life, the court shall not sentence him to imprisonment
unless it is satisfied that having regard to the circumstances
of the case including the nature of the offence and the
character of the offender it is not desirable to deal with him
under Section 3 or Section 4 of the Act. It further mandates
that if the court wants to impose a sentence of
imprisonment on the offender who is below 21 years of age
it shall record its reasons for doing so. Thus, the court
imposing a sentence of imprisonment on an accused who is
below 21 years of age would record reasons as to why it
does not find it desirable to deal with him under Section 3 or
Section 4 of the Act.
It can be noticed that the question of the offender
being of 21 years or below on the date of the commission of
offence or on the date of imposition of sentence of
imprisonment was not dealt with in the above-mentioned
cases.
The learned counsel for the appellant has relied upon a
2-Judge Bench judgment of this Court in the case of
Masarullah v. State of Tamil Nadu, (1982) 3 SCC 458,
wherein this Court held as under:
\0236. In case of an offender under the age of
21 years on the date of commission of the offence,
the court is expected ordinarily to give benefit of
the provisions of the Act and there is an embargo
on the power of the court to award sentence
unless the court considers otherwise, ‘having
regard to the circumstances of the case including
nature of the offence and the character of the
offender\022, and reasons for awarding sentence have
to be recorded. Considerations relevant to the
adjudication of this aspect are, circumstances of
the case, nature of the offence and character of
the offender. It is, therefore, necessary to keep in
view the aforementioned three aspects while
deciding whether the appellant should be granted
the benefit of the provisions of the Act.\024

It appears that in Masarullah case (supra), the Court

did not notice a 4-Judge Bench judgment delivered by
Ayyangar, J. in Ramji Missar and Another v. State of
Bihar, AIR 1963 SC 1088 ( = (1963) Supp. 2 SCR 745),
wherein this Court has noticed argument before the High
Court that the Sessions Judge erred in not applying the
provisions of Section 6 of the Act to the accused. The High
Court repelled the contention holding that although the
accused might have been under 21 years of age on the date
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
of the offence, he was not a person under 21 years of age
on the date when the Sessions Judge found him guilty and
sentenced him to a term of imprisonment, and held that the
crucial date on which the age had to be determined being
not the date of offence but the date on which as a result of a
finding of guilty sentence had to be passed against the
accused. In the factual matrix of that case, this Court held
as under:
\0236. Taking first the case of Ramji, the elder
brother, we entirely agree with the High Court in
their construction of S.6. The question of the age
of the person is relevant not for the purpose of
determining his guilt but only for the purpose of
the punishment which he should suffer for the
offence of which he has been found, on the
evidence, guilty. The object of the Act is to
prevent the turning of youthful offenders into
criminals by their association with hardened
criminals of mature age within the walls of a
prison. The method adopted is to attempt their
possible reformation instead of inflicting on them
the normal punishment for their crime. If this
were borne in mind it would be clear that the age
referred to by the opening words of S.6(1) should
be that when the court is dealing with the
offender, that being the point of time when the
court has to choose between the two alternatives
which the Act in supersession of the normal penal
law vests in it, viz., sentence the offender to
imprisonment or to apply to him the provisions of
S.6(1) of the Act. \005.\024
The Court further said:
\02319. We shall now proceed to consider one
question which was mooted before us in regard to
the crucial date for reckoning the age where an
appellate court modifies the judgment of the trial
Judge, when S.6 becomes applicable to a person
only on the decision of an appellate or a revisional
court. Is the age of the offender to be reckoned as
at the date of the judgment of the trial Judge or is
it the date when the accused is, for the first time,
in a position to claim the benefit of S.6. We
consider that on the terms of the section, on
grounds of logic as well as on the theory that the
order passed by an appellate court is the correct
order which the trial court should have passed,
the crucial date must be that upon which the trial
court had to deal with the offender. \005\024

From the judgment of the Court, it is apparent that the date

of the judgment of the trial court would be the crucial date
for consideration of the age of the accused while applying
Section 6 of the Act.
Faced with the 4-Judge judgment of this Court in
Ramji Missar (supra), the learned senior counsel for the
appellant contended that while considering the pari materia
provisions under the Juvenile Justice Act, 1986, a
Constitution Bench of this Court in Pratap Singh v. State
of Jharkhand and Another, (2005) 3 SCC 551, has held
that reckoning date for determining the age of a juvenile is
the date of the commission of the offence and not the date
when he is produced before the competent authority or in
the court and, therefore, the provisions of Section 6 of the
Act should be construed in the same light, and the age of
the accused for applying Section 6 of the Act has to be the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
date on which the offence was committed. While
interpreting the provisions of the Juvenile Justice Act, 1986
(for short \023the 1986 Act\024) and the Juvenile Justice (Care and
Protection of Children) Act, 2000 (for short \023the 2000 Act\024),
this Court has observed that these Acts provide for the care,
protection, treatment, development and rehabilitation of
juveniles. The Acts being benevolent legislations, such
interpretation must be given which would advance the cause
of the legislations, i.e. to give benefit to juveniles. Section
2(l) of the 2000 Act defines ‘juvenile in conflict with law\022 as
meaning a juvenile who is alleged to have committed an
offence. The definition of ‘delinquent juvenile\022 in the 1986
Act is referable to an offence said to have been committed
by him. It is the date of offence that he was 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 guilty to have
committed. Therefore, what was implicit in the 1986 Act
has been made explicit in the 2000 Act. Sinha, J. in his
concurring judgment said that having regard to the
constitutional and statutory scheme it was not necessary for
Parliament to specifically state that the age of juvenile must
be determined as on the date of commission of the offence
and the same is inbuilt in the statutory scheme.
From the aforesaid, it is apparent that while
determining the age of a juvenile the Court has interpreted
the provision for giving benefit to a juvenile who has
committed an offence and was in conflict with law. The
offence having been committed, he came in conflict with
law on the date of commission of the offence which is
relevant for determining the age for giving protection under
the 1986 Act and the 2000 Act.
It can be noticed from Ramji Missar case (supra) and
Pratap Singh case (supra) that the object and purpose of
the Probation of Offenders Act, 1958 for applying the
relevant provisions to the accused are different and cannot
be said in pari materia with the Juvenile Justice Act, 1986
and the Juvenile Justice (Care and Protection of Children)
Act, 2000. The Court would not construe a Section of a
statute with reference to that of another statute unless the
latter is in pari materia with the former. Therefore, a
decision made on a provision of a different statute will be of
no relevance unless underlying objects of the two statutes
are in pari materia. The decision interpreting various
provisions of one statute will not have the binding force
while interpreting the provisions of another statute. Section
6 of the Act has been construed by a 4-Judge Bench of this
Court in Ramji Missar case (supra) and that will have the
binding force while interpreting the same Section in same
statute and the decision of the Constitution Bench
interpreting provisions of the 1986 Act and the 2000 Act
would not be held to be a decision on interpretation of
Section 6 of the Act. Section 6 of the Act would apply to the
accused who is under 21 years of age on the date of
imposition of punishment by the trial court and not on the
date of commission of the offence. If on the date of the
order of conviction and sentence by the trial court the
accused is below 21 years of age the provisions of Section 6
of the Act applies in full force.
That being the case, even if the date of birth of the
accused is held to be 28.6.1962 as alleged by him in the
petition, on the date of delivery of judgment of conviction
and sentence on 26.7.1985 by the Additional District &
Sessions Judge he was more than 21 years of age and thus
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
was not entitled to the benefit under Section 6 of the Act.
That apart, the question of applicability of the Act has
been raised for the first time while filing the special leave
petition. The accused has not claimed benefit under
Section 6 of the Act during the trial before the Additional
District & Sessions Judge or before the High Court. Only
material which was placed before the Sessions Judge or the
High Court is the statement recorded of the accused
appellant under Section 313 Cr.P.C. wherein the age of the
accused was given as 20 years. In the similar
circumstances, in Yuduraj Singh and Others v. State of
U.P., (1976) 4 SCC 310, this Court held as under:

\0232. The learned counsel appearing for the

appellants argues that on August 30, 1969 when
the incident took place, appellants 3 and 4 were
less than 21 years of age and, therefore, they
ought to have been given the benefit of the
Probation of Offenders Act. This contention was
neither taken in the sessions court nor in the High
Court. True, that this Court has taken the view
that in appropriate cases such a contention may
be entertained by this Court for the first time. But
the difficulty in accepting the submission of the
learned counsel is that there is no credible
evidence on the record showing that appellants 3
and 4 were less than 21 years of age when the
offence was committed. Counsel says that those
two accused had given their ages in their
statements under Section 342, Code of Criminal
Procedure, and if the trial Judge doubted the
correctness thereof, he could have had the two
accused medically examined in order to ascertain
their age This seems to us a difficult burden for
any trial Judge to undertake. The age given by
the two accused in their statements had no special
significant in the absence of a proper plea under
the Probation of Offenders Act. \005\024

For the aforesaid reasons, the appeal being devoid of

any merit, is dismissed.