THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU & KASHMIR) & ORS. versus SHUBAM SANGRA

Citation: [2022] 8 S.C.R. 349 · Decided: 16-11-2022 · Supreme Court of India · Bench: AJAY RASTOGI · Disposal: Appeal(s) allowed

cites 11 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
349
THE STATE OF JAMMU & KASHMIR
(NOW U.T. OF JAMMU & KASHMIR) & Ors.
v.
SHUBAM SANGRA
(Criminal Appeal No. 1928 of 2022)
NOVEMBER 16, 2022
[AJAY RASTOGI AND J. B. PARDIWALA, JJ.]
Juvenile Justice: Jammu and Kashmir Juvenile Justice (Care
and Protection of Children) Rules, 2014: r.74 – Plea of Juvenility –
Kathua Rape Case – The Kathua rape case involved abduction,
gang rape and murder of an eight year-old girl by six men and the
respondent (claiming to be a juvenile) – Special Medical Board
opined the age of respondent as above 19 years – However, the
CJM, Kathua relied on the deposition of the Executive Officer,
Municipal Committee and the deposition of father of respondent
held that respondent was juvenile on date of the commission of the
offence – High Court upheld the order of CJM – Hence instant
appeal by State – Held:  Sub rule (3) of r.74 provides that in the
absence of mentioned certificates or in the event of any
contradiction, the authority deciding the issue of age ‘may’ refer
the matter to duly constituted medical board – The word “may”
should be read as “shall” having regard to the very object of sub-
rule (3) of r.74 – If there is a clear and unambiguous case in favour
of the juvenile accused that he was minor on the date of the incident
and the documentary evidence at least prima facie established the
same, he would be entitled to the special protection under the
Juvenile Justice Act – Whereas when an accused commits a heinous
and grave crime and thereafter attempts to take the statutory shelter
under the guise of being a minor, a casual or cavalier approach
cannot be permitted while recording as to whether he is a juvenile
or not – There is no good reason  to overlook or ignore or doubt
the credibility of the final opinion given by a team of five qualified
doctor – In the absence of all other acceptable materials, if opinion
of the experts points to a reasonable possibility regarding range of
his age, the Court must consider the same in the interest of justice –
In the instant case, the documents evidencing date of birth did not
inspire any confidence and there was no other option but to fall
[2022] 8 S.C.R. 349
349
A
B
C
D
E
F
G
H
350
SUPREME COURT REPORTS
[2022] 8 S.C.R.
back on the report of the Special Medical Board in the interest of
justice – The order passed by the High Court affirming the CJM’s
order was not sustainable in law – Respondent accused was not
juvenile at the time of the commission of the offence and, therefore,
should be tried the way other co-accused were tried – Juvenile
Justice (Care and Protection of Children) Act, 2000 – ss.7A and 94
– Jammu and Kashmir Juvenile Justice (Care and Protection of
Children) Act, 2013 – ss.8 and 48.
Jammu and Kashmir Juvenile Justice (Care and Protection of
Children) Act, 2013: ss.8, 48 – Plain reading of s.8 of the Act, 2013
indicates that whenever a claim of juvenility is raised before any
court or the court is of the opinion that the accused person was a
juvenile on the date of the commission of the offence, then it is
mandatory for the court to make an inquiry and in the course of
such inquiry, the court may take such evidence as may be necessary,
however, not an affidavit, so as to determine the age of such person
– At the end of the inquiry, if the court finds a person to be a juvenile
on the date of commission of the offence under sub-section (1) of
s.8, then in such circumstance, the court is obliged in law to forward
the juvenile to the Juvenile Justice Board for passing appropriate
order and the sentence – s.48 talks about a competent authority,
whereas, s.8 is in respect to the court – However, what is relevant to
note is that in both the Sections the word ‘shall’ has been used.
Word and phrase: “May” – When Mandatory – It is a well
settled principle of interpretation that the word ‘may’ when used in
legislation by itself does not connote a directory meaning –  If in a
particular case, in the interests of equity and justice it appears to
the court that the intent of the legislature is to convey a statutory
duty, then the use of the word ‘may’ will not prevent the court from
giving it a mandatory colour – Jammu and Kashmir Juvenile Justice
(Care and Protection of Children) Rules, 2014 – r.74.
 Allowing the appeal, the Court
HELD: 1. Sub-rule (3) of Rule 74, makes it abundantly clear
that in the absence of the certificates mentioned in sub clause (i)
to (iii) or in the event of any contradiction arising therefrom,
authori

Excerpt shown. Read the full judgment & AI analysis in Lexace.