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2010 DIGILAW 2572 (ALL)

PAWAN v. STATE OF U. P.

2010-08-25

S.C.AGARWAL

body2010
JUDGMENT Hon’ble S.C. Agarwal, J.—This revision under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (here-in-after referred to as the ‘Act’) is directed against the order dated 5.8.2010 passed by Addl. Sessions Judge, F.T.C. No. 18, District Bulandshahar in Sessions Trial No. 948 of 2006, State v. Kalu and others, whereby the application No. 181-B filed by the revisionist for declaring himself to be a juvenile in conflict with law was rejected. 2. Heard Sri Sanjay Srivastava, learned counsel for the revisionist, learned A.G.A. for the State and perused the material available on record. 3. The revisionist Pawan is an accused in the aforesaid criminal case. Application No. 181-B was moved on his behalf on 14.1.2010 stating therein that his date of birth, as per the educational certificate, was 5.12.1987 and, therefore, on the date of incident i.e. 21.9.2005, he was below 18 years of age and, therefore, he be declared a juvenile. The copies of high school certificate and marks-sheet were also filed in support of the application. 4. Learned Sessions Judge rejected the application on the ground that opinion of the Medical Board would be given preference if the date of birth certificate from the school first attended is not available and the entries in the school register cannot be treated to be public documents. 5. Learned counsel for the revisionist submitted that on the date of offence, revisionist was a juvenile, as his date of birth was 5.12.1987. Learned trial Court did not provide any opportunity to the revisionist to produce evidence in support of his claim of juvenility and did not follow the procedure prescribed in Section 7A of the Act and learned Sessions Judge was bound to make an inquiry and reasonable opportunity to lead evidence in support of his case should have been given to the revisionist. It was further submitted that as per high school certificate and marks-sheet, the date of birth of the revisionist was 5.12.1987 and there is nothing on record to show that the high school certificate and marks-sheet were not genuine and, therefore, there was no question of placing reliance on medical examination report. 6. Learned A.G.A. clearly conceded that no inquiry appears to have been held by the trial Court under Section 7A of the Act. Section 7 A of the Act provides as under : “7A. 6. Learned A.G.A. clearly conceded that no inquiry appears to have been held by the trial Court under Section 7A of the Act. Section 7 A of the Act provides as under : “7A. 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 recognised 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 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.” 7. It is apparent from the aforesaid provisions that whenever the claim of juvenility is raised before any Court, the Court is bound to make an inquiry and to take all such evidence as may be necessary so as to determine the age of the accused on the date of crime. 8. In the instant case, no inquiry was held by learned Sessions Judge. No opportunity was given to the revisionist to lead evidence in support of his claim of juvenility. Even if it is assumed that the copies of high school certificate and marks-sheet are not public documents, the learned Sessions Judge could have directed for production of original high school certificate to compare the photo stat copy. If the learned Sessions Judge had any doubt regarding genuineness of high school certificate and marks-sheet, he could have verified the same from the School and Educational Board concerned. If the learned Sessions Judge had any doubt regarding genuineness of high school certificate and marks-sheet, he could have verified the same from the School and Educational Board concerned. Opportunity should also have been provided to the revisionist to lead oral evidence in support of his claim and the accused could have been examined by a Medical Board. 9. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the ‘Rules 2007’) provides 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 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. (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 the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) 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 pass 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. (5) 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. (6) The provisions contained in this rule shall also apply to those disposed of 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. 10. (6) The provisions contained in this rule shall also apply to those disposed of 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. 10. It is thus clear that the matriculation or equivalent certificate, if available, is the best evidence on the basis of which it can be decided as to whether the revisionist was a juvenile or not and in the absence of matriculation or equivalent certificate, the date of birth certificate from the school first attended or the birth certificate given by the Corporation or Municipal Authority or Panchayat could have been relied upon. In the absence of above three certificates, the medical evidence has to be relied upon. It is thus obvious that if matriculation or equivalent certificate is available, then other evidence is not required. 11. In the instant case, learned Sessions Judge did not hold any inquiry, as envisaged under Section 7A of the Act nor did provide an opportunity to the revisionist to lead evidence. A copy of the high school certificate cannot be brushed aside simply on the ground that it is not a public document. The inquiry has to be held strictly in accordance with Rule 12 of the Rules 2007, as quoted above, and not on the whims and surmises of the trial Court. 12. In these circumstances, the impugned order cannot be sustained and is liable to be set-aside. The revision is allowed. The impugned order dated 5.8.2010 is set-aside and learned Addl. Sessions Judge is directed to hold an inquiry under Section 7A of the Act after providing full opportunity to lead evidence to both the parties and then to decide the application in accordance with Rule 12 of the Rules 2007. It will be not out of place to mention that a Judge holding an inquiry should actively participate in the inquiry proceedings and to seek the relevant records if required and is not a mere referee between the two warring sides. ————