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2008 DIGILAW 739 (PAT)

Bir Bahadur Singh @ Tinku Singh v. State Of Bihar

2008-05-29

S.P.SINGH

body2008
Judgment 1. in the instant revision application the petitioner prays for setting aside the order dated 5.11.2007 passed by the Special Judge, N.D. Act (Additional Sessions Judge, F.T.C. 1st, Bhojpur at Ara) in N.D. No. 24 of 2006 whereby he held that the petitioner is a major being 20 years of age at the time of occurrence on 17.11.2006. 2. A First Information Report was instituted on self-statement of the Officer- in-charge, Udwant Nagar P.S. on 17.11.2006 under the N.D.P.S. Act against the petitioner and one Sanjay Singh. Pursuant to the order of this court in Cr. Misc. No. 15268 of 2007 a petition was filed on behalf of the petitioner to declare and treat him as juvenile. The petitioner produced his original matriculation certificate. School Leaving Certificate, Marks- Sheet, Registration Slip and admit card of matriculation examination which are annexed as Annexure-2 series. All these documents mentioned the date of birth of the petitioner as 1.2.1990 and as such the petitioner claims that on the date of occurrence i.e. 17.11.2006 he was not only less than 18 years but in fact less than 17 years. As such on the date of occurrence he was a juvenile as he had not completed 18 years of age. 3. The trial court also got him examined by the Medical Board, which assessed his age about 21 years, and below 23 years as on 15.9.2007. As per opinion of Medical Board the petitioner was above 20 years of age on 17.11.2006 and as such not a juvenile. 4. The trial court relied upon the opinion of the Medical Board and came to the conclusion that the petitioner was about 20 years of age and thus a major on the date of occurrence. 5. In my view the order of the trial court is not sustainable in the eyes of law on account of two infirmities; firstly the trial court has not given any reason as to why it has discarded the date of birth certificate mentioned in the matriculation certificate granted by the Bihar School Examination Board. He has merely stated that there is no ground to differ from the assessment of the Medical Board. On the other hand, the report of a Medical Board is an opinion recorded by the Doctors in respect of possible age of a person. He has merely stated that there is no ground to differ from the assessment of the Medical Board. On the other hand, the report of a Medical Board is an opinion recorded by the Doctors in respect of possible age of a person. it cannot be as conclusive as the date of birth mentioned in the matriculation certificate. There has to be very strong reason for discarding the age mentioned in the matriculation certificate more particularly when the same is of the date much prior to the date of occurrence. 6. Secondly, the impugned order is at variance with procedure prescribed in Rule 12(3)(a) and (b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the Rules 2007) which came into effect from 26.10.2007. It would be useful to reproduce the relevant extract of Rule 12: "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 or 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 or 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. (2) The Court or the Board or 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 or, 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), (ii) 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 conclusive proof of the age as regards such child or the juvenile in conflict with law." 7. As per Rule 12(3)(a) of the Rules, 2007 the Court or the Board or the Committee determining the age will seek evidence by obtaining the matriculation or equivalent certificate and in its absence the date of birth certificate from the schools first attended and in its absence the birth certificate given by a Corporation or a Municipal authorities or a Panchayat. The matriculation certificate has been given primacy over two other certificates as its reliability would be more than other certificates. 8. The matriculation certificate has been given primacy over two other certificates as its reliability would be more than other certificates. 8. As per Rule 12(3)(b) of the Rules, 2007 only in absence of either of the three certificates mentioned above in Rule 12(3)(a) the medical opinion will be sought from a duly constituted Medical Board. Rule 12(3)(b) further states that in case exact assessment of age cannot be done in view of opinion of Medical Board the Court or the Board or the Committee would give benefit to the child by considering his or her age on lower side within the margin of one year. 9. Learned counsel for the State submits that the Rule does not state very clearly that if matriculation certificate is available the medical opinion cannot be sought. He submits that the court would be in its right to consider the medical opinion even if matriculation certificate is on the record. He further submits that Section 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act 2000) Act prescribes provisions regarding presumption and determination of age. He submits that Section 49 authorizes the competent authority to make due enquiry in determining the age and for that purpose it shall take such evidence as may be necessary. He submits that Rules cannot supersede the provisions of the Act. 10. In my view the submissions made by the State counsel cannot be accepted in view of the very language of Rule 12 of the Rules, 2007. Rule 12(3}(b) begins with the clause that only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from duly constituted Medical Board while determining the age of a person claiming to be juvenile or child. The word only mentioned in clause (b) is not without significance. The incorporation of the word only therein in no uncertain terms emphasizes that Medical opinion will be sought only when evidence in relation to categories mentioned in Section 12(3)(a) is not available. 11. Rule 12(3) makes a significant departure from similar provisions provided in Rule 22 of the earlier Juvenile Justice (Care and Protection of Children) Rules, 2001. Rule 22(5) of Rules, 2001 which reads as under: "Rule 22(5). 11. Rule 12(3) makes a significant departure from similar provisions provided in Rule 22 of the earlier Juvenile Justice (Care and Protection of Children) Rules, 2001. Rule 22(5) of Rules, 2001 which reads as under: "Rule 22(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; or (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." 12. Sub-rule (5)(iv) of Rule 22 states that in absence of (i) to (iii) above the medical opinion by a duly constituted Medical Board would be sought. 13. On comparing the two respective rules in this regard I find that the word only does not find mention in Rule 22(5)(iv). In Rules, 2007 clear primacy has been accorded in respect of categories mentioned in Rule 12(3)(a) of Rules, 2007 over medical opinion which was not the situation earlier in so clear terms. 14. The proviso to Rule 12(3) which qualifies both its sub-clauses (a) and (b) talks of consideration of evidence as may be available or the medical opinion, as the case may be and of recording of a finding in respect of age. The last two lines of the provisions clearly states that first of all this evidence available in clause 12(3)(a)(i), (ii), (iii) would be considered and in its absence the medical report would be conclusive proof of age of child or juvenile in conflict of law. The word as the case may be referred in the proviso is in relation to evidence available in respect of Rule 12(3)(a) or medical opinion whichever may be the situation. 15. Now I come to the next submission of the State Counsel that Rules cannot supersede the substantive Act. He submits that rule in no case can have primacy over the provisions in the substantive Act. He further submits that if Rule is in conflict with the provisions of the Act the same would be non est in the eyes of law. 16. He submits that rule in no case can have primacy over the provisions in the substantive Act. He further submits that if Rule is in conflict with the provisions of the Act the same would be non est in the eyes of law. 16. There cannot be any denial of the correctness of the proposition of law as has been submitted by the learned State Counsel. The issue as such which come to the fore is whether Rule 12(3)(a) is in conflict with the provisions mentioned in Section 49 of the Act. It would be relevant to reproduce Section 49 of the Act, 2000: "49. Presumption and determination of age,(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be." 17. Section 49 of the Act contains provisions in respect of determination of age. It empowers the competent authority to make due enquiry in respect of the age of the person and for this purpose it shall take such evidence as may be necessary. So two things appear from reading of Section 49 of the Act; firstly, the determination of age is to be made by making an enquiry and secondly in making such enquiry the competent authority will take such evidence as that may be necessary. 18. Thus we see that Rules, 2007 have attached significant importance to educational certificates and that of by a Corporation or a Municipal Authority. As such the court is not precluded from satisfying itself in respect of genuineness or otherwise of such certificates particularly those which are obtained belatedly. There can be no denying the fact that at times forged and concocted certificates have been prepared to obtain advantage. In this respect the court would be in its right to seek such evidence in respect of satisfying its genuineness. Once genuineness of certificates is satisfied the same has to given primacy over medical report. 19. There can be no denying the fact that at times forged and concocted certificates have been prepared to obtain advantage. In this respect the court would be in its right to seek such evidence in respect of satisfying its genuineness. Once genuineness of certificates is satisfied the same has to given primacy over medical report. 19. Moreover, there has to be strong reason for doubting the age mentioned in certificates enumerated in categories 12(3)(a) e.g. where an earlier deposition in respect of age is in conflict with age in such certificates the competent authority is not precluded from taking any further evidence for satisfying itself. The second broad example would be one where the very physical appearance of the person would not conform to the age given in such certificates and instances of the like. 20. Rule 12(3)(a) of Rules, 2007 broadly enumerates the evidence that can be taken and the weight that is to be attached to such evidence. Rule 12(3)(b) states that in absence of evidence as enumerated in Rule 12{3)(a) medical opinion would be sought. Thus this court finds that Rule 12(3)(a) and (b) is in aid of Section 49 and rather supplements Section 49 in respect of details of evidence and Medical report that can be sought while determining the age. 21. This court thus finds that the aforesaid Rule 12(3) of the Rules, 2007 is not in conflict with Section 49 of the Act, 2000 nor it supersedes the provisions mentioned therein. 22. In the instant case the court has not held that the matriculation certificate is a fraudulent document or on physical appearance the petitioner seems clearly a major. Furthermore, there is no other material on record to show that the petitioner or his parents have given a conflicting age in any other document or evidence (depositions etc.,) other than the one mentioned in the matriculation certificate. 23. In view of foregoing discussions and also as no reason has been assigned for doubting the matriculation certificate, I hold the petitioner to be a juvenile on the date of alleged occurrence in view of the date of birth mentioned therein. 24. For the reasons mentioned aforesaid. I accordingly set aside the impugned order dated 5.11.2007. 25. In the result, this revision application is allowed but no order as to costs.