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2008 DIGILAW 1167 (ORI)

RATA TIRIA v. STATE OF ORISSA

2008-12-18

L.K.MISHRA

body2008
JUDGMENT : L.K. Mishra. J. 1. This Criminal Revision is directed against the order dated 3.5.2007 passed by learned S.D.J.M., Kamakhyanagar in G.R. Case No. 85 of 2007 (hereinafter referred to as "the impugned order") by which I held the Petitioner not to be a juvenile. 2. In the morning of 1.3.2007 one Prasanta Kumar Nayak, a forest guard reported before O.I.C. Kamakhyanagar that during the previous night while he and some forest staff were present at Kandhara Forest Beat House, some unknown persons wearing black uniform came there carrying guns and tied and beat diem up. The informant managed to escape and later on returning to the spot with the officers found two of the staffs lying dead having been killed by some unknown culprits. Some leaflets left at the spot revealed the miscreants to be belonging to C.P.I.,(M) Janashakti (Maoist cadre). Police registered a case under various sections including Section 302 I.P.C. and took up investigation during the course of which the Petitioner was arrested and forwarded to the court. On 2.5.2007 a petition was filed on behalf of the present Petitioner for his ossification and radiological tests in order to ascertain his age. On 3.5.2007 the learned S.D.J.M. heard the said petition and vide the impugned order rejected the claim of the Petitioner to be a juvenile of 15 years of age occasioning this revision. 3. Learned Counsel for the Petitioner has submitted that it was incumbent upon the learned S.D.J.M. to have caused an inquiry in order to ascertain his age as soon as claim was made on behalf of the Petitioner that he was a juvenile. He has submitted that the learned S.D.J.M. without proper inquiry unlawfully rejected the petition vide the impugned order which is vitiated for the aforesaid reason. The learned Counsel appearing for the State has supported the impugned order. 4. It is necessary to note the statutory provision with regard to a juvenile before proceeding further. The juvenile justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act') is a beneficial legislation and was enacted to provide for the care protection treatment development and rehabilitation of neglected delinquent juveniles. The earlier legislation on the subject i.e. the juvenile Justice Act 1986 (53 of 1986) was repealed by the Act. The juvenile justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act') is a beneficial legislation and was enacted to provide for the care protection treatment development and rehabilitation of neglected delinquent juveniles. The earlier legislation on the subject i.e. the juvenile Justice Act 1986 (53 of 1986) was repealed by the Act. In the year 2006 by the Juvenile Justice (Care and Protection of Children) Amendment Act 2006 (Act 33 of 2006) the Act has been further amended extensively. 5. Section 68(1) of the Act reads as follows: The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act. Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the State Government may make rules under this section, and where any such model rules have been framed in respect of any such matter, they shall apply to the State until the rules in respect of that matter is made by the State Government and while making any such rules, so far as is practicable, they conform to such model rules. Pursuant to directive of Section 68 the Central Govt. has framed the juvenile Justice Care and Protection Rules, 2007 (hereinafter referred to as "the Central Rules") which came into force with effect from 26.10.2007. Since as yet the State Government of Orissa has not made rules as provided for u/s 68, the Central rules will remain in force till such rules are made. 6. Section 2(k) of the Act provides that "juvenile" or "child" means a person who has not completed eighteen years of age and Section 2(1) provides that "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on date of commission of such offence". 6. Section 2(k) of the Act provides that "juvenile" or "child" means a person who has not completed eighteen years of age and Section 2(1) provides that "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on date of commission of such offence". Section 7A of the which was inserted by the Amendment Act and came into force with effect from 22.8.2006 reads as follows:- 7-A. Procedure to be followed when claim of juvenility is raised before any Court -(1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made there under, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under Sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect. This Section provides that if a claim of juvenility is raised before Court or if the Court forms an opinion that the accused was a juvenile on the date of commission of offence, it is obligatory on the part of the Court to make an inquiry and to take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and to record a finding whether the person is a juvenile or a child or not, stating his age as nearly as my be. It has been made clear in the proviso that the claim of the juvenility may be raised before any Court and it shall be recognized at any stage,; even after final disposal of the case, and Sub-section (2) of Section 7A makes it obligatory on the part of the Court to forward the juvenile to the Board for passing appropriate order. 7. Rule 12 of the Rules lays down the procedure to be followed in determination of age in vivid details which reads as follows:- 12. Procedure to be followed in determination of age - (1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board, as the case may be, the Committee by seeking evidence by obtaining- (a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i) or (iii) of Clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the Clauses (a)(i),(ii), (iii) or in the absence whereof, Clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (3) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in Sub-rule (3), the Court or the Board or, as the case may be, the Committee shall in writing ass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (4) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in Sub-rule (3) of this rule. (5) The provisions contained in this rule also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in Sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law. 8. (5) The provisions contained in this rule also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in Sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law. 8. In the present case though a claim of juvenility was raised before the learned S.D.J.M. he did not follow the procedure prescribed in Section 7A or Rule 12 but relying on the age mentioned by the Investigating Officer in the forwarding memo and holding the horoscope produced by the accused to be a weak piece of evidence formed an opinion that the accused is not a juvenile. The impugned order shows that the teamed court below was not even aware of the existence of the Act and Rules. Such attitude in dealing with such sensitive matter is not appreciated. 9. From the discussion made above it is dear that the impugned order is not sustainable and the same is here by quashed. The learned court below is directed to determined whether the accused is a juvenile or not applying the provisions of the Act and the Rules. Such inquiry has to be completed without unnecessary delay preferably within a period of one month after giving opportunity to both sides to present their respective materials. If in the meantime the case has been committed and/or transferred to any other court, the court in which the mater is pending for the time being is to carry out the above direction. The Revision is allowed.