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Abuzar Hossain Alias Gulam Hossain v. State Of West Bengal .
Factual and Procedural Background
The appellant, Abuzar Hossain @ Gulam Hossain, was convicted of an offence that occurred on 11-2-2001. During the present appeal, his counsel asserted that he was a juvenile at the time of the incident. Although the appellant stated his age to be 19 years when examined under Section 313 of the Code of Criminal Procedure on 4-3-2003 and the plea of juvenility was adverted to in earlier proceedings, the defence led no evidence on age and did not press the issue before either the trial court or the High Court. In the Supreme Court proceedings, the parties cited conflicting decisions on whether a court must suo motu inquire into juvenility, prompting the Bench to consider a reference to a larger Bench.
Legal Issues Presented
- Does a criminal court have an obligation to determine an accused’s juvenility even when the plea was not raised or pressed at earlier stages of the trial or appeal?
- Given conflicting coordinate-Bench decisions, should the question of such an obligation be referred to a larger Bench for authoritative resolution?
Arguments of the Parties
Appellant’s Arguments
- The appellant was below 18 years of age on the date of the offence and therefore ought to have been tried under the Juvenile Justice (Care and Protection of Children) Act, 2000.
- Under Gopinath Ghosh v. State of West Bengal (1984 Supp SCC 228), the court must examine juvenility even if the issue is raised for the first time before the Supreme Court.
- The 2001 amendments to the 2000 Act, as interpreted in Hari Ram v. State of Rajasthan (2009 13 SCC 211), permit a plea of juvenility to be raised at any stage, including post-conviction.
Respondent State’s Arguments
- Reliance on Akbar Sheikh v. State of W.B. (2009 7 SCC 415), where a similar claim was rejected because the issue had not been raised earlier and the material relied upon (such as a Section 313 statement or voter list) was not decisive.
- Contended that, in the absence of any evidence and in light of Akbar Sheikh, the appellant cannot now claim the benefit of juvenility.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gopinath Ghosh v. State of West Bengal, 1984 Supp SCC 228 | Court must investigate juvenility even if raised for the first time before the Supreme Court, reflecting the protective intent of juvenile legislation. | Cited by the appellant to show an obligation on courts to determine juvenility irrespective of procedural stage. |
| Hari Ram v. State of Rajasthan, (2009) 13 SCC 211 | Post-2001 amendments define a juvenile as a person under 18 and allow the plea to be raised “before any court at any stage.” | Used to reinforce the appellant’s position that juvenility can be claimed even after final disposal. |
| Akbar Sheikh v. State of W.B., (2009) 7 SCC 415 | Where no plea of juvenility was raised during trial or appeal, the court need not entertain it merely on belated assertions unsupported by decisive evidence. | Relied on by the State to argue that the appellant’s belated claim should not be entertained. |
Court's Reasoning and Analysis
The Bench compared the principles enunciated in Gopinath Ghosh and Hari Ram with those in Akbar Sheikh and found “a very substantial discordance” between the two lines of authority. While the former two cases impose an affirmative duty on courts to examine juvenility at any stage, Akbar Sheikh adopts a contrary approach, declining such scrutiny when the plea was not earlier pressed or supported by credible evidence. Noting that all three decisions were rendered by coordinate Benches of the Supreme Court, the present Bench concluded that the conflict affects a large number of cases and warrants resolution by a larger Bench. Until that authoritative determination is made, the merits of the appellant’s claim remain undetermined.
Holding and Implications
ORDER: The question of the court’s obligation to inquire into juvenility is referred to a larger Bench. The registry is directed to place the matter before the Hon’ble Chief Justice of India for appropriate listing after the reference is answered.
Implications: The decision stays the final adjudication of the appellant’s case and signals potential clarification of the law on juvenility claims raised belatedly. No new precedent is set at this stage; the authoritative ruling will emerge only after the larger Bench decides the referenced questions.
Order
1. One of the issues raised by Mr Pradip Ghosh, the learned Senior Counsel for the appellant is that Abuzar Hossain alias Gulam Hossain was a juvenile on the date of the incident and as such he could not have been tried in the normal criminal court. He has submitted that as per his statement recorded under Section 313 of the Code of Criminal Procedure on 4-3-2003 he was 19 years of age and that the point of his juvenility had been raised even in the grounds of appeal in the High Court as well as in the present petition as the incident had happened on 11-2-2001. It is true, as contended by Mr Ghosh, that this plea had been taken but we find from a perusal of the evidence as also the judgments of the trial court and the High Court (2006) 2 Cal LT 547 that this matter does not appear to have been pressed at any stage and no evidence whatsoever had been led by the defence to prove the age of the appellant, Abuzar Hossain.
2. Faced with this situation, Mr Ghosh has relied upon Gopinath Ghosh v. State of W.B 1984 Supp SCC 228 to argue that notwithstanding the fact that the plea had not been raised, an obligation nevertheless lay on the Court to go into this matter and to determine the age of the appellant. Mr Ghosh, in particular, had relied upon the observations made in para 10 of the judgment which reads as under:
“10. Unfortunately, in this case, appellant Gopinath Ghosh never questioned the jurisdiction of the Sessions Court which tried him for the offence of murder. Even the appellant had given his age as 20 years when questioned by the learned Additional Sessions Judge. Neither the appellant nor his learned counsel appearing before the learned Additional Sessions Judge as well as at the hearing of his appeal in the High Court ever questioned the jurisdiction of the trial court to hold the trial of the appellant, nor was it ever contended that he was a juvenile delinquent within the meaning of the Act and therefore, the Court had no jurisdiction to try him, as well as the Court had no jurisdiction to sentence him to suffer imprisonment for life. It was for the first time that this contention was raised before this Court. However, in view of the underlying intendment and beneficial provisions of the Act read with clause (f) of Article 39 of the Constitution which provides that the State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment, we consider it proper not to allow a technical contention that this contention is being raised in this Court for the first time to thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it.”
3. Mr Ghosh has also relied on the observations made by a Bench of this Court in Hari Ram v. State of Rajasthan (2009) 13 SCC 211 to contend that after the amendment made in the year 2001 in Sections 2(k) and 2(l) of the Juvenile Justice (Care and Protection of Children) Act, 2000, a “juvenile” has been described as a person who had not yet completed 18 years of age and a proviso had also been added to Section 7-A that the plea of juvenility could be raised before any court at any stage even after the final disposal of the case and that the Court was bound to examine the matter.
4. Mr Tara Chandra Sharma, the learned counsel appearing for the respondent State, has however, relied upon certain observations made by another Bench of this Court in Akbar Sheikh v. State of W.B (2009) 7 SCC 415 and in particular to the observations which read as under:
“45. We are also unable to accept the submission of Mr Rauf Rahim that Kabir was a juvenile on the date of occurrence. No such question had ever been raised. Even where a similar question was raised by five other accused viz. Jahangir, Motahar, Mosi, Chosi and Habal, no such plea was raised even before the High Court. Reliance inter alia has been placed on the statement of Kabir under Section 313 of the Code of Criminal Procedure wherein he stated his age to be 33 years in 2001. Such a statement, in our opinion, is not decisive. Reliance has also been placed on a voters' list. The said voters' list had been prepared long after the incident occurred. The same is again not decisive.”
5. A comparative reading of the two paragraphs quoted above would reveal a very substantial discordance in the approach of the matter and whereas Gopinath Ghosh case 1984 Supp SCC 228 lays down that an obligation lies on the Court to examine the question of juvenility at any stage which stand is now recognised even by the Act of 2000 and Hari Ram case (2009) 13 SCC 211; Akbar Sheikh case (2009) 7 SCC 415 proceeds on a contrary thesis.
6. We are, therefore, of the opinion that as this matter would arise in a very large number of cases, the issue requires to be referred to a larger Bench as the judgments in both the cases [Akbar Sheikh case (2009) 7 SCC 415 and Gopinath Ghosh case 1984 Supp SCC 228] have been rendered by coordinate Benches of this Court.
7. The matter be put up for decision on merits after the reference is answered. Place the matter before the Hon'ble the Chief Justice of India to seek appropriate directions to list the matter before a larger Bench.
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