JUDGMENT Rajendra Babu, J.-This petition is directed against an order made by the High Court of Delhi in a writ petition wherein the petitioner prayed for quashing the decision of the first respondent that the second respondent has the pre-qualification for the construction of Koteshwar Dam Spillway and Power House Civil work of Koteshwar Hydro Electric Project pursuant to the tender specification No. THDC/RKSH/CD/197/PQ/99. The pre-qualification document under clause 10.2 provided as follows:- "10.2. The minimum pre-qualification criteria for the work of construction of "Koteshwar Dam, Spillway & Power House Works" would be as under : (i) The bidder should have minimum annual turnover of Rs. 50 crores in anyone of the last five years. (ii) The bidder should have successfully completed the construction of at least one concrete dam/barrage involving placement of minimum 2.5 lac cubic meters of all grades of concrete against a single contract in a Hydro Electric/Irrigation Project." [Only relevant part extracted] The challenge to the pre-qualification of the second respondent was met by the first respondent on the following basis:- 1. "Amongst the 7 parties, recommended to be pre-qualified for the subject work, one of the parties recommended was M/s Progressive Construction Limited, in Joint Venture with the Consortium of Intertech : Lenhydro, Russia (named as respondent No. 2 in the writ petition). In the Pre-qualification bid documents submitted by M/s. Progressive Construction Limited in Joint Venture with the Consortium of Intertect Lenhydro, Russia the party had, inter-alia, provided Memorandum of Understanding (MOU), purporting to be an agreement between M/s Progressive Construction Limited, with its Head Officer at Hyderabad (India) and the Consortium of Intertech Service (Head office at Saint Petersberg, Russia) and Institute Lenhydro Project, (Head Office at Saint Petersberg, Russia), formed to submit the pre-qualification bids to the THDC in response to the subject tender. The MOU had described the intertech Lenhydro Consortium having experience, skill and specialized experience in construction of dams, underground tunnels, ports etc. Further, the said MOU had laid down the detailed obligations, responsibilities and working arrangements for submission of bids and undertaking the subject works in the event, the contract was awarded to the Joint Venture. Alongwith the documents, the Joint Venture had also provided details concerning experience and financial status of all the respective Joint Venture partners. 2. Further, the said MOU had laid down the detailed obligations, responsibilities and working arrangements for submission of bids and undertaking the subject works in the event, the contract was awarded to the Joint Venture. Alongwith the documents, the Joint Venture had also provided details concerning experience and financial status of all the respective Joint Venture partners. 2. As per information provided by the Joint Venture of Progressive Construction Limited and Consortium of Intertech Services: Institute Lenhydro Project, it was disclosed that M/s Progressive Construction Limited would be the Joint Venture lead partner. It was further indicated in the submitted documents that Institute Lenhydro Project, one of the Joint Venture partners, had successfully completed Bureya Hydroelectric Project on Bureya River, Far East of Russia, which was a 140 m. high concrete dam. It was further stated that this massive gravity dam contains 3.5 million cum. Concrete about 30 of which being dry RCC which is placed into downstream part of the dam. This experience detail was supported by an Affidavit dated July 31, 1999, signed for and on behalf of Institute Lenhydro Project, by their Chief Engineer and authorised signatory declaring that Institute Lenhydro Project had executed the Bureya Hydroelectric Project, as per details given in the foregoing. It was also indicated in the affidavit that the work was done for Government of Russia. 3. The answering respondent vide letter No. THDC/RKSH/CD-197/2607 dated 18.11.99 intimated to Progressive Construction Limited who were disclosed to be the leader of Joint Venture, that the claim of meeting the PQ requirements of having completed construction of Dam involving 2.5 lac cum concrete based on the credential of their Joint Venture partner, Lenhydro Project, had been laid on the self certification made by Lenhydro Project to the effect that they have placed 3.5 million cum concrete in Bureya HEP. Similarly, the claim of having achieved more than 20,000 cum concrete placement in a single month was also laid on self certification through an affidavit furnished by Institute Lenhydro Project. They were required vide this communication dated 18.11-99 to arrange to furnish a certificate in support of meeting the above PQ requirements. 4. In response to this, Progressive Construction Ltd. vide their letter dated 24.11.99 addressed to Sr. Manager (Contracts) furnished the certificate issued by Bureya HPP, an open joint stock company "UES of Russia" under Ministry of Fuel and Power Engineering of Russia. 4. In response to this, Progressive Construction Ltd. vide their letter dated 24.11.99 addressed to Sr. Manager (Contracts) furnished the certificate issued by Bureya HPP, an open joint stock company "UES of Russia" under Ministry of Fuel and Power Engineering of Russia. While forwarding the said certificate by Bureya HEP, it was intimated by Progressive Construction Ltd. that the certificate was in support of the successful completion of the Project as well as also the total quantities of concrete/peak month quantity of concrete executed by their Joint Venture partners M/s Lenhydro Project. The original letter of confirmation issued by the joint stock company Bureya HPP under Ministry of Fuel & Power Engineering of Russia was later forwarded by Progressive Construction Ltd. vide letter No. PCL/ND/Koteshwar/ 72206 dated 29.11.99 by their letter also it was intimated that the said letter of confirmation certifies total works of concreting having been done by their Joint Venture partners M/s Lenhydro Project for Bureya HPP in Russia. 5. The Standing Committee on pre-qualification, on detailed examination of bids submitted by various parties, had noted in regard to PCL-Intertech : Lenhydro Consortium based on information/documents furnished by them, that the annual turnover of M/s Progressive during the year 1998-99 has been Rs. 158.11 Crores. The joint venture partners, M/s Institute Lenhydro Project, Russia have successfully completed 140 M. high concrete gravity dam on Bureya river for Bureya Hydroelectric Project, Russia involving 35 Lac cum of concrete placement. The peak rate of concrete placed by the party in a single month on this project was more than the required rate of 20,000 cum. It was also noted that M/s Progressive achieved a monthly rate of 2,50,307 cum for earth and rock excavation in the month of June, 1994 for Srisailam Right bank Canal work. M/s Institute Lenhydro Project, having worked on Bureya HEP, Russia, have adequate experience in Reinforced Cement Concrete Technology. Based on the information provided, and documents submitted by this Joint Venture in response to the pre-qualification tenders, the Standing Committee recommended pre-qualification of PCL-Intertech Lenhydro Consortium Joint Venture. It was intimated to the applicant that since the pre qualifying requirements relating to concreting were being met by the consortium of Intertech: Lenhydro Project, Intertech: Lenhydro Consortium needs to be nominated as the leader of the Joint Venture. This was accepted and confirmed by the applicant vide letter No. PCL/ND/THDC/2000/2275 dated 22nd May, 2000. 6. It was intimated to the applicant that since the pre qualifying requirements relating to concreting were being met by the consortium of Intertech: Lenhydro Project, Intertech: Lenhydro Consortium needs to be nominated as the leader of the Joint Venture. This was accepted and confirmed by the applicant vide letter No. PCL/ND/THDC/2000/2275 dated 22nd May, 2000. 6. Based on the recommendations of the Standing Committee, the answering respondent, THDC, pre-qualified seven parties in June, 2001, including the Joint Venture of M/s Progressive Construction Limited and Consortium of Intertech-Lenhydro, Russia, for submission of bids for the civil construction works of Koteshwar Hydroelectric Project." In view of these pleadings, the High Court held that "on consideration of the rival submissions and pleading on record, it is abundantly clear that respondent No. 2 is fully qualified arid eligible to carry out the contract" and the writ petitioner did not, before the bids were opened, raise any objection regarding the experience and financial capacity of respondent No. 2. The High Court, therefore, dismissed the writ petition filed by the writ petitioner. 2. In this case the respondents had entered caveats. We asked them, even at the stage of preliminary hearing before issuing notice, to address the arguments on the merits of the matter. Having heard the parties in the case, we have passed this order. 3. In the writ petition filed before the High Court the petitioner contended (i) that one of the constituents of the second respondent Lenhydro Project is not a company engaged in actual physical execution/construction of works; rather, it was only a design firm; (ii) the Intertech Services is not a Construction Company engaged/having experience in actual execution/construction of concrete Dam, Spillway and Power House Works; (iii) The statement made by the authorised signatory of the Lenhydro Project that the said constituent has executed the Bureya Hydro-electric Project, far east Russia is not correct as in fact the said project has been built by JSC Buguchangesstroy as turn key contractor. 4. In support of this contention, the learned counsel for petitioner relied upon a letter issued by the SHC Institute Hydro Projects and letter dated May 25, 2002 by the Chamber of Commerce and Industry of the Russian Federation which stated that "LENGIBROPROYEKT is a specialized design engineering company in the field of hydro-electric projects where it enjoys good standing as a design firm. This firm does not involve itself in executing projects nor is it known to associate or act as a turn-key contractor"; that letter dated 22.11.1999 [Annexure P/12] issued by the Bureya Hydro Power Project is ambiguous inasmuch as it only refers to successful completion of the contract by the Russian constituent of the second respondent without any details thereto; that the Bureya Hydro Power Project on Bureya River was, in fact, constructed by Boguchangesstroy as a turn-key contractor as per the information obtained from the Reference list of the Project built by the JSC Boguchangesstroy for the years 1997-2000. It is also contended that during the period from 1993 to 1997 the "Lenhydroproject" merely got executed construction work project at the Bureya Hydro Power Station even as per certificate dated 15th July, 2002 issued by the Chief Engineer of the Parent Company of the Russian Constituent of the 2nd respondent. On this basis it is contended that the second respondent had not placed any satisfactory material to show that it had necessary experience as required under the pre-qualification documents. 5. The letters issued by the SHC Institute Hydro Projects and the Chamber of Commerce and Industry of the Russian Federation do not specifically deal with whether the 2nd respondent had in fact executed the construction work of Bureya Hydro-Power Station project but makes general reference. The Reference List obtained from the Internet gives information from 1997 onwards and not for the earlier period. Therefore, these three documents are not helpful to the petitioner. The stand of the respondents is that Bureya Hydro-Power Station project is a multi-stage project; that during period 1993-1997, the Russian Constituent of the 2nd respondent was entrusted with the construction, technical support and quality control of Bureya Hydro-Power Station project and they were providing construction machinery, material, manpower etc. during the execution of works. Certificate issued on 1.8.2002 in this regard by the parent company is made available by the 2nd respondent. Another certificate dated June 11, 2002 was relied upon along with the letter dated 22.11.1999 issued in this regard. Next stage of project from 1998 onwards was executed by a sub-contractor JSC Boguchangesstroy and Boguchangesstroy had not figured for the earlier period prior to 1998. This project has nothing to do with the earlier project. Another certificate dated June 11, 2002 was relied upon along with the letter dated 22.11.1999 issued in this regard. Next stage of project from 1998 onwards was executed by a sub-contractor JSC Boguchangesstroy and Boguchangesstroy had not figured for the earlier period prior to 1998. This project has nothing to do with the earlier project. The clear stand of the respondents on the basis of these documents is that apart from general designing work they were also engaged in actual construction of the project. If upon the material made available to the 1st respondent by the 2nd respondent its pre-qualification has been decided, the High Court is justified in not interfering under Article 226 of the Constitution. 6. In the light of this position, we find no merit in this petition and the same stands dismissed. No costs. Petition dismissed. *************** ARTICLES RELEASE ON BAIL AFTER CONVICTION BY TRIAL COURT, UNDER SECTION 389(3) OF THE CODE OF CRIMINAL PROCEDURE, 1973 *P.R. Thakur The present article is the sequel to the author s earlier article "Bail on conviction -Incongruity in law" published in 1999(1) JCC 38 Journal Section. According to Section 389(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C."), when an accused is convicted of any offence and sentenced to imprisonment not exceeding three years, and if such convicted person has been on bail before being sentenced, or where the offence of which such person has been convicted is a bailable one and he/she has been on bail, and if accused satisfies the convicting court that he/she intends to prefer an appeal to a higher court, he/she shall be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present an appeal so as to obtain orders of appellate court under Section 389(1) Cr.P.C., and sentence of such imprisonment shall, so long as convicted accused is so released on bail, be deemed to be suspended. The underlying object behind this provision is that right of a convict to file an appeal should not be rendered illusory or defeated by reason of short term of sentence of imprisonment awarded to him. The underlying object behind this provision is that right of a convict to file an appeal should not be rendered illusory or defeated by reason of short term of sentence of imprisonment awarded to him. It is for this reason that a trial court, whether it be a Court of Metropolitan Magistrate or a Court of Sessions, is empowered and also under a legal obligation under Section 389(3) Cr.P.C. to enlarge a convicted person on bail for such period as will be sufficient to enable such person to prefer an appeal and obtain necessary orders of bail pending hearing of appeal, under Section 389(1) Cr.P.C. The pre-requisite conditions for exercise of such power by a convicting trial court as postulated in Section 389(3) Cr.P.C. are (1) that such convicted person should have been on bail prior to his/her being sentenced and (2) the sentence awarded to him/her as a result of conviction should be for a term not exceeding three years i.e. up to three years or less than that. Therefore, if a convicted person is on bail and sentenced to imprisonment not exceeding three years he is entitled to be released on bail pending filing of an appeal, irrespective of fact whether offence of which he has been convicted, is bailable or non-bailable, and where offence of which such person has been convicted is a bailable one, and such person has been on bail, he/she shall be released on bail by convicting trial court pending filing of an appeal. Insofar as interpretation of this provision is concerned, it appears to be mandatory that if a convicted person satisfies the conditions as laid down in the provision, a convicting trial Court shall release a convicted person on bail, unless there are special reasons for refusing bail. It is also clear from the language of the provision that a convicting trial court has no power to suspend sentence of imprisonment as such (which power is possessed by an appellate court as expressly provided under Section 389(1) Cr.P.C.) although if a convicted person is released on bail under Section 389(3) Cr.P.C., a sentence of imprisonment, by the fiction of law, shall, so long as the person is so released on bail, be deemed to be suspended. It is further apparent from the language of this Section that it is only the sentence of imprisonment which shall be deemed to be suspended during such release of a convicted person on bail, and, therefore, a sentence of fine, if any, imposed along with sentence of imprisonment cannot be deemed to be suspended. However, this position seems to be wholly incongruous; manifestly inconsistent with the other parts of the provision directing release of a convicted person on bail upon his fulfilling the requirements of the provision under Section 389(3) Cr.P.C. and plainly contrary to the intention of the Parliament that a person sentenced to a short term imprisonment up to three years shall not be sent to jail immediately on decision by a trial court, without his appeal being heard and decided. From the provision framed in its present form, it is clear that there is a clear ambiguity about deposit of fine imposed along with a sentence of imprisonment not exceeding three years and consequences of not depositing fine by a convict who may under the law be entitled to be released on bail pending preferring an appeal. A pedantic approach to the problem will lead to a conclusion that unless fine imposed is deposited, a convicting trial court cannot order release on bail under Section 389(3) Cr.P.C. Sometimes, fine imposed may be very heavy, say in lakhs, and it may not be practically possible for a convicted person to deposit such amount of fine, thus setting at naught and negativing his legitimate right of being released on bail after conviction by a trial court, upon expressing his intention to presenting an appeal. In the opinion of the author, there being no specific prohibition/bar in the Cr.P.C. regarding grant of time by a trial court passing conviction and sentence, for deposit of fine, and also to harmonise and practicalise the other part of the provision under Section 389(3) Cr.P.C. regarding releasing a convicted person on bail, it is necessary for practical purposes and also just, equitable and reasonable that a trial court ought not to insist upon deposit of fine while exercising mandatory power under Section 389(3) Cr.P.C. for ordering release on bail of a convicted person sentenced to imprisonment not exceeding three years. The judiciary should step in to fill in the gap left in this regard by the Legislature. The judiciary should step in to fill in the gap left in this regard by the Legislature. The next question for consideration is whether an accused who has been on bail during trial can be taken into custody on his conviction i.e. prior to his being sentenced to imprisonment and thus denied the benefit of Section 389(3) Cr.P.C. on the ground that he is no longer on bail at the time he is being sentenced by trial Court. The practice of taking an accused into custody soon after conviction and prior to being sentenced while an accused has been on bail during trial, seems to be without any sanction in law, and if it is done by any trial court, it seems to be a mala fide exercise of power with a view to deprive an accused of his legitimate right of being released on bail in case he comes to be sentenced to imprisonment for a term not exceeding three years, on the untenable and self-created ground that at the time of his being sentenced, he was no longer on bail. Trial comes to an end on acquittal or conviction of an accused, and if an accused has been on bail prior to his conviction, he shall be taken to be on bail for purposes of Section 389(3) Cr.P.C., and any other interpretation will mean not only doing injustice to an accused but also frustrating the beneficial purpose of the provision contained in Section 389(3) Cr.P.C. Insofar as right of an appellate court to grant suspension of sentence pending hearing of appeal is concerned, the same is untrammelled and uninhibited by any condition. Section 389(1) Cr.P.C. provides that pending any appeal by a convicted person, an appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is confined, that he be released on bail or on his own bond. A sentence may be a composite one i.e. comprising of a sentence of imprisonment and a sentence of fine. If an appeal is preferred by a convicted person to an appellate court the latter court is empowered under Section 389(1) Cr.P.C. to order suspension of sentence i.e. sentence of imprisonment as also sentence of fine, and if a convicted person is in confinement, he shall be released on bail. If an appeal is preferred by a convicted person to an appellate court the latter court is empowered under Section 389(1) Cr.P.C. to order suspension of sentence i.e. sentence of imprisonment as also sentence of fine, and if a convicted person is in confinement, he shall be released on bail. Therefore, an appellate court has all the power to suspend not only sentence of imprisonment but also sentence of fine because appeal preferred by a convicted person is against the composite sentence of imprisonment and fine awarded to him by a trial Court. Earlier, under the old Code of Criminal Procedure, 1898, a convicting trial court was given discretionary power to release a person on bail after conviction if he was sentenced to imprisonment for an offence other than a non-bailable offence. The exercise of the jurisdiction under sub-section 3 of Section 389 Cr.P.C. has now been made mandatory by the use of the words "shall order" in place of the words "may order" appearing in the old Code. However, the scope of sub-section 3 of Section 389 Cr.P.C. has been limited to cases in which the person convicted is already on bail and he has been sentenced to a term of imprisonment not exceeding three years or is convicted of an offence which is bailable. If bail is refused, a convicting trial court is required under the law to give special reasons for the same. It was observed in the Select Committee Report that in cases where a person is sentenced to imprisonment not exceeding three years and whether the offence of which a person is convicted is bailable or not, it would be unjust to refuse bail merely because the person concerned has been convicted by a trial court. To ensure that refusal of bail in such cases should be in exceptional circumstances, it had been considered by the Legislature to require that special reasons should be recorded by a court before refusing bail under Section 389(3) Cr.P.C. To avail of the provision of Section 389 Cr.P.C., a convicted person must have a right to appeal. Therefore if conviction and sentence is not appealable or is amenable to revisional jurisdiction only, the benefit of section 389 Cr.P.C. cannot be availed of or granted. Therefore if conviction and sentence is not appealable or is amenable to revisional jurisdiction only, the benefit of section 389 Cr.P.C. cannot be availed of or granted. Under Section 374 Cr.P.C., no appeal lies against a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees, or of both such imprisonment and fine. It is thus ironical that an appeal will lie against a sentence of fine exceeding rupees two hundred but not against a sentence of imprisonment if it is for three months or less than that. A convicting trial court sentencing an accused to imprisonment for three months or less than that period, will have thus no power under any provision of the Cr.P.C. to release him on bail, and he has necessarily, compulsorily and compulsively to be sent to jail upon conviction by a trial court, and he will have to remain in jail till he obtains an order for release on bail from a higher court under revisional jurisdiction as per Section 397 Cr.P.C. The author in his long experience in the judicial service and at the Bar came across some unfortunate cases where trial courts after recording conviction, deliberately thrust upon a sentence of imprisonment for three months or less than that, with a view to ensure that after conviction, an accused remained in jail for a couple of days or more before he could obtain an order of release on bail from a revisional Court. There seems to be patent injustice in the above dichotomy on the basis of period of imprisonment. In the opinion of the author any sentence of imprisonment up to three years or fine up to any amount should be made appealable, and any accused so sentenced should be entitled to be released on bail pending filing of an appeal. Necessary legislative amendments need to be brought in. It was Roscoe Pound who said "The law must be stable, but it must not stand still". **************** JUVENILE S PLEA FOR THE FIRST TIME IN THE APEX COURT : CONVICTION MAINTAINED BUT SENTENCE QUASHED *P.R. Thakur Two questions of vital importance insofar as they pertain to juvenile justice, are being discussed in the present essay. It was Roscoe Pound who said "The law must be stable, but it must not stand still". **************** JUVENILE S PLEA FOR THE FIRST TIME IN THE APEX COURT : CONVICTION MAINTAINED BUT SENTENCE QUASHED *P.R. Thakur Two questions of vital importance insofar as they pertain to juvenile justice, are being discussed in the present essay. One is whether a plea of an appellant being a juvenile at the time of commission of an offence can be raised in the appellate proceedings, more particularly in the proceedings before the Supreme Court for the first time? The second question is : whether a juvenile, tried and convicted by an ordinary criminal court, on being found to be a juvenile at the time of commission of an offence by an appellate court or the Supreme Court and on conviction being maintained, can be sent to an approved school for detention after he/she (juvenile) crossed the maximum age till when such a person can be detained in an approved school? These two questions are sought to be answered with reference to the decided Supreme Court case law. In a nutshell, the answer to the first question is in the affirmative i.e. a plea regarding one s being a juvenile at the time of commission of offence can be allowed to be raised for the first time before an appellate court and even the Supreme Court. The answer to the second question is in the negative i.e. if a person ceases to be a juvenile by the time proceedings against that person are concluded and the said person has crossed the maximum age of detention in an approved school, such a person cannot be sent to an approved school, and conviction of such a juvenile will be maintained and sentence quashed. In the recent judgment in Bhola Bhagat etc. v. State of Bihar [1997 IV SVLR (Cr.) SC 136 = 1997 III AD (Cri.) SC 281], the Supreme Court (A.S. Anand and K. Venkataswami, JJ.) observed that technicalities cannot be allowed to defeat the benefits of a socially-oriented legislation like the Bihar Children Act, 1982 and the Juvenile Justice Act, 1986. In the recent judgment in Bhola Bhagat etc. v. State of Bihar [1997 IV SVLR (Cr.) SC 136 = 1997 III AD (Cri.) SC 281], the Supreme Court (A.S. Anand and K. Venkataswami, JJ.) observed that technicalities cannot be allowed to defeat the benefits of a socially-oriented legislation like the Bihar Children Act, 1982 and the Juvenile Justice Act, 1986. In that case, out of ten accused persons, all of whom had been sentenced by the trial court to undergo imprisonment for life for the offence under Section 302 read with Section 149 IPC, three of them were below 16 years of age on the date of occurrence of offence. Their statements under Section 313 Cr.P.C. came to be recorded more than four years after the occurrence and they gave their ages as 17, 21 and 18 years respectively. The Sessions Court recorded that in its estimate, the ages of the said accused were 22, 21 and 18 years respectively. However, the trial court did not give the benefit of Bihar Children Act to the said accused persons. In the appeal before the High Court of Patna, the argument was that the said three convicted appellants were children as defined in the Bihar Children Act, 1982 on the date of the occurrence, and their trial along with the adult accused by the Criminal Court was not in accordance with law. The High Court rejected the said argument inter alia with the observations that although all the three appellants were below 18 years of age on the date of occurrence as per the estimate of the age made by the trial court it appeared that except for the ages given by the appellants in their statements under Section 313 Cr.P.C. and the estimate of their ages made by trial court, there was no material in support of the appellants claim that they were below 18 years of age. The High Court relied upon the judgment of the Supreme Court in State of Haryana v. Balwant Singh (infra) wherein it has been observed that if the plea of the accused being a child had not been raised before the committal court as well as before the trial court, the High Court could not merely on the basis of the age recorded in the statement under Section 313 Cr.P.C. conclude that the respondent was a child within the meaning of the definition of the expression under the Act on the date of occurrence, in the absence of any other material to support that conclusion. Overruling such approach of the High Court in dealing with the question of age of the appellants and the denial of the benefit to them of the provision of both the Acts, the Supreme Court observed that if the High Court had the doubt about the correctness of the ages as given by the appellants and also as estimated by the trial court, it ought to have ordered an inquiry to determine their ages, and it should not have brushed aside their plea without such inquiry. Section 32 of the Juvenile Justice Act, 1986 provides : "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 inquiry 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. The Supreme Court observed that the correctness of the estimate of age as given by the trial court was neither doubted nor questioned by the State either in the High Court or in the Supreme Court. The Supreme Court observed that the correctness of the estimate of age as given by the trial court was neither doubted nor questioned by the State either in the High Court or in the Supreme Court. Therefore, the three appellants should not be denied the benefit of the provisions of a socially progressive statute. The Supreme Court accordingly, following the course earlier adopted by the Supreme Court in the cases of Gopinath Ghosh, Bhoop Ram and Pradeep Kumar (infra) while sustaining the conviction of the appellants, quashed the sentences awarded to them, as all of them had crossed the maximum age of detention in an approved school. The Supreme Court reiterated that when a plea is raised on behalf of an accused that he was a child within the meaning of the Act, it becomes obligatory for the court, in case it entertains any doubt about the age as claimed by the accused, to hold an inquiry itself or cause an inquiry to be held and seek a report regarding the same, if necessary by asking the parties to lead evidence in that regard. Keeping in view the beneficial nature of the socially oriented legislation, it is an obligation of the court where such a plea is raised, to examine that plea with care, and it cannot fold its hands and without returning a positive finding regarding that plea, deny the benefit of the provisions to an accused. The court must hold an inquiry and return a finding regarding the age, one way or the other. The Supreme Court further observed that it expected High Courts and subordinate courts to deal with such cases with more sensitivity, as otherwise, the object of the Acts would be frustrated and the effort of the Legislature to reform the delinquent child and reclaim him as a useful member of the society would be frustrated. The Supreme Court in Bhola Bhagat case (supra) surveyed the earlier judgments of the Supreme Court on the issue involved. In Gopinath Ghosh v. State of West Bengal [1984 (Supp.) SCC 228], the Supreme Court (D.A. Desai and Amarendra Nath Sen, JJ.) observed that the appellant had been convicted by the trial court along with two other accused under Section 302 read with Section 34 IPC, and all of them were awarded imprisonment for life. All the three accused preferred the appeal in the Calcutta High Court. All the three accused preferred the appeal in the Calcutta High Court. The Division Bench dismissed the appeal of the appellant Gopinath Ghosh, holding him guilty under Section 302 IPC, while the appeal of other two accused had been accepted and their conviction set aside. The appellant filed the appeal by special leave to the Supreme Court. It was urged on behalf of the appellant for the first time in the Supreme Court that on the date of the offence, the appellant was aged below 18 years, and was, therefore, a child within the meaning of the expression child as contained in the West Bengal Children Act, 1959, and, therefore, the Court had no jurisdiction to sentence him to suffer imprisonment. In view of the said contention, the Supreme Court framed the issue with regard to age of the appellant on the date of the offence and remitted the issue for determination to the Sessions Court to certify the finding after giving an opportunity to both sides to lead oral or documentary evidence. The Additional Sessions Judge certified his finding after taking evidence of both the parties that the appellant was aged 16-17 years on the date of offence, and the said finding was not questioned before the Supreme Court. The Supreme Court observed that unfortunately, the appellant had 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 Additional Sessions Judge. Neither the appellant nor his counsel appearing before the Sessions Court as well as at the hearing of the appeal in the High Court ever questioned the jurisdiction of the trial Court to hold the trial of the appellant, nor it was 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 such a contention was raised before the Supreme Court. It was for the first time that such a contention was raised before the Supreme Court. The Supreme Court observed that 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, the Court, therefore, considered it proper not to allow a technical contention that the plea of the appellant being a juvenile was being raised for the first time in the Supreme Court to thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it. The Supreme Court observed that on the basis of the age report submitted by the Sessions Court to the effect that the appellant was a juvenile delinquent on the date of the offence, the court of the Magistrate could not have committed the case of the Court of Session. Only an inquiry could be held against the appellant as provided in the Act, and he could not be sentenced to suffer imprisonment. The Supreme Court held that the entire trial of the appellant was thus without jurisdiction and was vitiated. The Supreme Court consequently held that the conviction of the appellant and the sentence of imprisonment for life as awarded by the trial court and confirmed by the High Court were unsustainable and they must be set aside. As a sequel to the above decision, the Supreme Court observed that it was difficult to gauge, in the absence of information about the antecedents and the background of the family of the appellant, as to how the juvenile court would have dealt with him and, therefore, the Supreme Court directed the appellant to be released on bail and remitted the case to the court of the Magistrate to proceed further in accordance with law. The Supreme Court, by way of a passing comment, observed that the Apex Court ordinarily would be reluctant to entertain a contention based on factual averments raised for the first time before it. The Supreme Court, by way of a passing comment, observed that the Apex Court ordinarily would be reluctant to entertain a contention based on factual averments raised for the first time before it. However, the Court observed that it would be equally reluctant to ignore, overlook or nullify the beneficial provisions of a very socially progressive statute by taking shield behind the technicality of the contention being raised for the first time in the Apex Court. The Court was of the opinion that whenever a case is brought before the Magistrate and the accused appears to be aged 21 years or below, before proceeding with the trial or undertaking an inquiry, an inquiry must be made about the age of the accused on the date of the occurrence. Such procedure if properly followed, would avoid a journey up to the Apex Court and return journey to the grass-root court. The Supreme Court (S. Natarajan and A.M. Ahmadi, JJ.) in Bhoop Ram v. State of U.P. [( 1989(3) SCC 1 ] had to deal with the only question whether the appellant who had been convicted along with five others for the offence of murder and had been sentenced to imprisonment for life, should have been treated as a child within the meaning of Section 2(4) of the U.P. Children Act, 1951 and sent to an approved school for detention therein till he attained the age of 18 years instead of being sentenced to undergo imprisonment in jail. The trial court without going into the question whether the appellant was below 16 years of age on the date of the commission of the offence, adverted only to fact that appellant was below 18 years of age at the relevant time and proceeded to follow the ratio of the Supreme Court in Bachehay Lal v. State of U.P. [1976 SCC (Cri.) 599] and awarded the lesser sentence of imprisonment for life instead of the extreme penalty of death sentence. The Supreme Court at the stage of admission of special leave petition, directed the Sessions Judge to conduct an inquiry into the age of the appellant and submit the report. The Supreme Court at the stage of admission of special leave petition, directed the Sessions Judge to conduct an inquiry into the age of the appellant and submit the report. Disagreeing with the report of the Sessions Judge to the effect that the appellant was not a child , the Supreme Court, on the basis of the evidence adduced before the Sessions Judge, was of the opinion that the appellant could not have completed 16 years of age when the occurrence took place. The Supreme Court observed that the appellant should thus have been dealt with under the U.P. Children Act, 1951 instead of being sentenced to imprisonment on his conviction by the Sessions Judge. The crucial question before the Supreme Court was how to deal with the appellant who was more than 28 years of age at the time of decision of the appeal by the Supreme Court. It was observed that there was no question of the appellant being sent at that age to an approved school under the U.P. Children Act, 1951 for being detained there, as he had crossed the maximum age of detention in an approved school i.e. 18 years. Referring to and following the precedent of the Supreme Court (Y.V. Chandrachud, C.J. and E.S. Venkataramiah, J.) in Jayendra and another v. State of U.P. [1981 SCC (Cri.) 809] wherein the accused had been wrongly sentenced to imprisonment instead of being treated as a "child" and sent to an approved school and the accused having crossed the maximum age of detention in an approved school, the course resorted to by the Supreme Court was to sustain the conviction but to quash the sentence imposed on the appellant and to direct his release forthwith. The Supreme Court (Kuldip Singh, R.M. Sahai and R.C. Patnaik, JJ.) in Pradeep Kumar v. State of U.P. [ AIR 1994 SC 104 ], had the occasion to consider the sole question whether each of the appellants in the three appeals before the Supreme Court was a child within the meaning of the U.P. Children Act, 1951, and as such, on conviction under Section 302 read with Section 34 IPC, should have been sent to an approved school for detention till the age of 18 years. It was proved to the satisfaction of the Supreme Court that on the date of occurrence, the appellants had not completed 16 years of age and as such, they should have been dealt with under the U.P. Children Act on conviction under Sections 302/34 IPC. Since the appellants at the time of the judgment by the Supreme Court were aged more than 30 years, the Supreme Court observed that there was no question of sending them to an approved school for detention. Accordingly, while sustaining the conviction of the appellants under the charges framed against them, the sentences as awarded to them were quashed and the appellants were directed to be released. The Supreme Court (S. Ratnavel Pandian and M.M. Punchhi, JJ.) in State of Haryana v. Balwant Singh [1993 Supp. (1) SCC 409] set aside the judgment of the High Court of Punjab and Haryana whereby the latter had placed reliance only on the entry made in the statement of the accused, recorded under Section 313 Cr.P.C. wherein, the age of the accused was given as 17 years, and on that basis, the High Court had come to the conclusion that the appellant was a child within the meaning of Haryana Children Act, 1974 and that he could be detained on conviction only in a special school up to the age of 18 years. The High Court on the basis of the above finding, set aside the sentence of imprisonment for life and ordered that the respondent "shall stand discharged of his bail bonds" and that he could not be sent even to special school as by the time of the pronouncement of the judgment, he had completed the age of 18 years. The Supreme Court noticed that admittedly, neither before the committal court nor before the trial court, no plea had been raised on behalf of the accused-appellant that he was a child and that he should not have been committed by the Magistrate and thereafter tried by the Sessions Court, and that he ought to have been dealt with only by the court of Juveniles. The Supreme Court observed that there was no other material except the age given by the accused in his statement in support of the conclusion that he was a child on the date of occurrence. The Supreme Court observed that there was no other material except the age given by the accused in his statement in support of the conclusion that he was a child on the date of occurrence. The judgment of the High Court holding that the appellant was a child was set aside and the case was remitted to the High Court for deciding the appeal on its merits. This judgment indicates that the Supreme Court was not inclined to hold any inquiry into the age of the appellant to decide whether he was a child within the meaning of Haryana Children Act, 1974 on the date of the occurrence, and according to the Supreme Court, in the absence of any plea having been raised by the accused regarding his age either before the committal court or the trial court, the High Court was not right in concluding that the accused was a child merely on the basis of age given by the accused in his statement under Section 313 Cr.P.C. This judgment is not in consonance with other judgments of the Supreme Court referred to elsewhere in the present essay, and the Supreme Court in Bhola Bhagat (supra) observed that the earlier judgments of the Supreme Court in Gopinath Ghosh (supra) and Bhoop Ram (supra) had not even been noticed or considered in Balwant Singh (supra). The Supreme Court further observed that the views expressed by it in Gopinath Ghosh and Bhoop Ram (supra) had received support from the three-Judge Bench judgment in the case of Pradeep Kumar (supra). According to the present writer, in such view of the matter, the judgment of the two-Judge Bench in Balwant Singh (supra) may be treated per incuriam, and impliedly overruled. The Supreme Court in Bhola Bhagat (supra) also referred to the Full Bench decision of the Patna High Court (N.P. Singh, Prabha Shanker Mishra and Bimalendu Narayan Singh, JJ.) in Krishna Bhagwan v. State of Bihar [AIR 1989 Patna 217]. In that case, it was          observed that extraordinary procedure has been prescribed for inquiring the offence alleged to have been committed by a child/juvenile and punishment thereof. The basic approach appears to be curative instead of punitive. In that case, it was          observed that extraordinary procedure has been prescribed for inquiring the offence alleged to have been committed by a child/juvenile and punishment thereof. The basic approach appears to be curative instead of punitive. It was mentioned that even the Indian Penal Code which had been framed more than a century ago, had taken note of the age factor in respect of persons committing offences and that is why in Section 82, immunity was given to a child seven years of age saying that nothing is an offence which is done by a child under seven years of age. Again in Section 83, it was provided that nothing is an offence which is done by a child above seven years of age and under twelve "who has not attained sufficient maturity of understanding to judge of the nature and consequence of his conduct on that occasion". Special provisions have now been made even in respect of accused persons who are above twelve years of age but have not attained the age of sixteen years in case of a boy and eighteen years in case of a girl under the Children Act and the Juvenile Act. Answering the question whether the benefits of the Acts have to be extended even to an accused who was a child/juvenile within the meaning of the Acts at the time of the commission of the offence but ceased to be a child during inquiry or trial, it was observed that it was a matter of common knowledge especially in the State of Bihar that trial commences in many cases three to five years after the date of the commission of the offence, and in the meanwhile, many accused persons who committed the offences as children cease to be children. The legislature has introduced a deeming fiction in Section 3 of the Juvenile Justice Act and it requires the Courts to treat an accused as a juvenile although during inquiry, he has ceased to be such. The contention made on behalf of the State that no useful purpose shall be served by extending the provisions of the Acts to persons who are alleged to have committed rape or murder and have ceased to be children/juveniles within the meaning of the Acts during the trial because by that time they ceased to be of tender age requiring any special protection and segregation, was negatived. The High Court observed that once it is held that legislature requires to treat an accused who was a child/juvenile at the time of commission of the offence, a child/juvenile throughout the inquiry irrespective of the actual fact, it is not for the Courts to examine the wisdom of the legislature while enacting such provision. Reference was made to the similar view taken by the Full Bench of Calcutta High Court (Sankar Prasad Mitra, C.J., S.K. Datta and A.N. Banerjee, JJ.) in Dalip Saha v. State of West Bengal [AIR 1978 Calcutta 529 = 1979 Cr.L.J. 88]. The full Bench of the Patna High Court in Krishna Bhagwan (supra) also considered the question relating to determination of age of an accused and belated raising of a plea of being juvenile, and opined that though the normal rule is that a plea unless it goes to the very root of the jurisdiction, should not be allowed to be taken at the appellate stage especially when it requires the investigation of fact. But a plea that the accused in question was a child within the meaning of the Act can be entertained at the appellate stage also and it should not be overlooked on technical grounds. Both the questions discussed herein, by virtue of the pronouncements of the Supreme Court, are no longer res integra and stand unequivocally decided. ***************** Parallel Citations of other Journals : Continental Construction Ltd. v. Tehri Hydro Development Corpn. Ltd. & Anr., 2002(6) Supreme 181 : 2002(6) JT 467 2002(3) Arb. L.R. 255 : AIR 2002 SC 3134 : (2002) 8 SCC 177 . 00081 00082