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2008 DIGILAW 700 (JHR)

Vicky Sao v. State Of Jharkhand

2008-07-09

D.G.R.PATNAIK

body2008
JUDGMENT D.G.R. Patnaik, J. 1. Petitioner has filed the instant revision application under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 for setting aside the order dated 10.6.2008 passed by the Additional Sessions Judge, FTC- VIth, Dhanbad whereby the petitioners prayer for sending his case for consideration of trial by the Principal Magistrate, Juvenile Justice Board, Dhanbad, on the ground that the petitioner is below 18 years of age, was rejected. 2. The petitioner was arrested in connection with the case registered for the offences under Sections 20, 22 and 29 of the N.D.P.S. Act. He was produced on arrest before the learned Chief Judicial Magistrate. Considering the petitioner to be an adult above 18 years of age by his physical appearance, the learned Chief Judicial Magistrate remanded the petitioner to judicial custody. The case was eventually transferred to the court of Additions Sessions Judge, FTC-VIth- cum Special Judge, Dhanbad who was competent to try the offences under the N.D.P.S. Act. The petitioner filed a petition before the learned Additional Sessions Judge, stating that he is a juvenile below the age of 18 years of age and therefore, his case should be sent to the Principal Magistrate, Juvenile Justice Board, Dhanbad for trial. In support of his age, the petitioner had filed school leaving certificate and birth certificate issued by the municipal authority. The learned Special Judge proceeded to inquire into the issue regarding the age of the petitioner and examined witnesses produced by the petitioner. However, after recording his observation that witnesses are not reliable and their evidences cannot be accepted, the learned court below referred the petitioner to the Medical Board for assessment of his age. The Medical Board submitted its report opining that the petitioners age was about 20 years. On the basis of the medical evidence, the learned Special Judge rejected the petitioners prayer for remanding his case to the Juvenile Justice Board and retained the case in his own file for proceeding. 3. The petitioner has challenged the impugned order of the court below on the ground that it is totally against the provisions of law under the Juvenile Justice Act and the procedure adopted by the learned court below for inquiry for assessment of age is against the guidelines laid down in the Act. 3. The petitioner has challenged the impugned order of the court below on the ground that it is totally against the provisions of law under the Juvenile Justice Act and the procedure adopted by the learned court below for inquiry for assessment of age is against the guidelines laid down in the Act. Learned Counsel for the petitioner argues that when the petitioner had raised a plea that he was a juvenile and that his case should be sent to the Juvenile Justice Board for trial, it was incumbent upon the court below to refer the petitioners case to the Juvenile Justice Board for assessment of the petitioners age since such power under the Act is vested with the Juvenile Justice Board only. It is further argued that under Sub-rule 5 of Rule 20 of the Juvenile Justice (Care and Protection of Children) Rules, 2001, procedure has been laid down for the assessment of the age of the person referred to the Board. The provision envisages that for the purpose of assessment of the age, the Board shall obtain a Birth certificate issued by the Municipal Authority or date of birth certificate of the school first attended or matriculation certificate or equivalent certificate, if available. It is only in absence of any of these documents, that the Board can refer the person to the Medical Board for assessment of the age. In the instant case, despite the fact that the petitioner had produced not only the school certificate but also the birth certificate issued by the municipal authority and yet, the learned court below has ignored these two documents on presumption that these two documents are unreliable and has proceeded to refer the petitioner to the Medical Board for assessment of his age. Learned Counsel refers in this context a judgment in the case of Dablu @ Manish Kumar v. State of Bihar reported in (2004) (1) East Cr.C 651 (Jhr). 4. Counsel for the State on the other hand, while controverting the grounds advanced by the petitioner, would offer support to the finding recorded by the court below in the impugned order. Learned Counsel refers in this context a judgment in the case of Dablu @ Manish Kumar v. State of Bihar reported in (2004) (1) East Cr.C 651 (Jhr). 4. Counsel for the State on the other hand, while controverting the grounds advanced by the petitioner, would offer support to the finding recorded by the court below in the impugned order. Learned Counsel submits that the learned court below was competent enough to make an inquiry regarding the age of the petitioner and for the purpose of such inquiry, it had the authority to refer the petitioner to the Medical Board for assessment of the petitioners age and therefore, there is no illegality or impropriety in the impugned order. 5. The controversial issues raised by the petitioner in this application are, 1. Whether the Additional Sessions Judge-cum-Special Judge have authority to conduct inquiry for the assessment of the petitioners age and whether, on the plea raised by the petitioner, the learned Additional Sessions Judge ought to have referred the petitioner to the Juvenile Justice Board for assessment of the petitioners age? 2. Whether the procedure adopted by the learned court below for assessment of the petitioners age is contrary to the Rules under the Juvenile Justice (Care and Protection of Children) Rules, 2001? 6. As regards the first issue, reference to the Section 7(A) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 needs to be made. 7. 2. Whether the procedure adopted by the learned court below for assessment of the petitioners age is contrary to the Rules under the Juvenile Justice (Care and Protection of Children) Rules, 2001? 6. As regards the first issue, reference to the Section 7(A) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 needs to be made. 7. Section 7(A) of the Act which lays down the procedure to be followed when claim of juvenility is raised before any Court, 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 on 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 rule made thereunder, 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. 8. It is manifest from the above provisions that the Court before whom an accused person raises a plea of his being a juvenile on the date of commission of offence, the Court is competent to conduct an inquiry and in course of enquiry, Court can take such evidence as may be necessary in order to determine the age of such person. When a question is raised before any court that the accused is or was a juvenile on the date of offence, that court has to itself hold an enquiry to be satisfied prima facie that the person concerned is or was a juvenile on the date of offence. The claim of juvenility can be raised before any court and it shall be recognized at any stage of the proceeding. Such claim shall be determined in terms of the provisions contained in this Act and Rules thereunder, even if, the juvenile ceases to be so on or before the date of commencement of this Act. It is only when the Court finds the person to be a juvenile on the date of commission of the offences after conducting inquiry, it shall forward the juvenile to the Board for passing appropriate order. The petitioners plea therefore that the learned Additional Sessions Judge-cum- Special Judge could not have conducted preliminary inquiry for ascertaining the petitioners age on the date of commission of the offence, is therefore, not tenable. 9. The next issue is whether the procedure adopted by the court below for determining the age of the petitioner on the date of the offence was in accordance with law. Reference needs to be made in this context to Sub-rule 5 of Rule 22 of the Juvenile Justice (Care and Protection of Children) Rules, 2001 and also to the identical provisions contained in Sub-rule 5 of Rule 22 of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003. Sub-rule 5 of Rule 22 of the Juvenile Justice (Care and Protection of Children) Rules, 2003 which lays down procedure to be followed by a Board in holding inquiries and the determination of age, reads as under: 22. Procedure to be followed by a Board in holding inquiries and the determination of age.-(5) In every case concerning a juvenile or a child, the Board shall either obtain- (i) a birth certificate given by a corporation or a municipal authority; or (ii) a date of birth certificate from the school first attended; or (iii) matriculation or equivalent certificates, if available; and (iv) in the absence of(i) to (iii) above, the medical opinion by a duly constituted medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board. Regarding his age; and, when 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. 10. A bare reading of the Rules would indicate that the primary evidence which the competent authority should consider first is the birth certificate issued by a corporation or a municipal authority or a date of birth certificate from the school first attended or matriculation or equivalent certificates, if available. It is only in absence of any of the documents described above, that the competent authority may seek for medical opinion regarding the age of the accused. It is to be noted that inquiry is necessary to ascertain the age of the accused on the date of commission of the offences. 11. In the instant case, it appears that the petitioner did produce the school leaving certificate issued by the school authority on 30.3.2001 and birth certificate issued by the municipal authority on 18.10.1996. The date of birth as recorded in the documents is 25.12.1990. The petitioner has adduced evidence in support of the genuineness of these documents and there appears no such indication, which could suggest that the documents are not genuine. Under such circumstances, refusal of the court below to accept these documents as primary evidence of the petitioners age and calling for the medical opinion is against the procedure laid down in the Rules. It has been well settled that the medical opinion does not give an accurate assessment of the age of a person and, therefore, the birth certificate issued by the municipal authority and the school leaving certificate issued by the school first attended by the accused, gains greater and superior importance and reliability when no doubt is cast against their genuineness. 12. For the reasons mentioned above, I find that the impugned order suffers from impropriety and illegality and it cannot be sustained. The impugned order dated 10.6.2008 passed by the Additional Sessions Judge, FTC-VIth, Dhanbad is hereby set aside. 12. For the reasons mentioned above, I find that the impugned order suffers from impropriety and illegality and it cannot be sustained. The impugned order dated 10.6.2008 passed by the Additional Sessions Judge, FTC-VIth, Dhanbad is hereby set aside. Since there is prima facie evidence to suggest that the petitioners age on the date of offence i.e. 4.1.2008 was below 18 years of age, it was incumbent upon the learned Additional Sessions Judge to refer the petitioner to the Juvenile Justice Board which is the competent authority to conduct inquiry into the case against the petitioner. Accordingly, the case is remitted back to the court below for passing an appropriate order for referring the case of the petitioner to the Juvenile Justice Board. 13. Revision application is allowed.