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2011 DIGILAW 1216 (RAJ)

Madan Lal v. State of Rajasthan

2011-06-15

PRASHANT KUMAR AGARWAL

body2011
Hon'ble AGARWAL, J.—Heard the learned counsel for the respective parties. 2. This revision petition has been preferred against the impugned order dated 19.11.2010 passed by the Additional Sessions Judge, Shahpura District Jaipur in Sessions Case No. 30/2009 by which the learned trial Court by allowing the application moved on behalf of the non-petitioner No. 2 declared him to be a juvenile and ordered that the case be sent to the Juvenile Justice Board for further proceedings. 3. The brief relevant facts for the disposal of this revision petition are that the complainant-petitioner on 22.6.2009 lodged a written report against the respondent and some other persons at Police Station Shahpura District Jaipur and on this basis FIR No. 388/2009 for the offence under Sections 363 & 366 of IPC was registered and after usual investigation a charge sheet for the offence under Sections 363, 366 and 376 of IPC came to be filed in the Court of Addl. Chief Judicial Magistrate, Shahpura against the respondent and some other persons. The case being exclusively triable by the Court of Sessions the learned Additional Chief Judicial Magistrate committed the case to the trial Court i.e. The Additional Sessions Judge, Shahpura District Jaipur. During trial on 19.3.2010 the respondent moved an application before the trial Court alleging that he is a juvenile within the meaning of Section 2(a) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter to be referred as "the Act") and he be declared to be a juvenile by the reason that his date of birth as per school record is 5.7.1991.The learned trial Court by order dated 1.6.2010 dismissed the application filed on behalf of the respondent. 4. Against the order dated 1.6.2010 the respondent preferred a revision petition before this High Court bearing S.B. Criminal Revision Petition No. 859/2010 and this Court vide order dated 16.8.2010 set aside the order dated 1.6.2010 and remanded the matter back to the learned trial Court with a direction to conduct inquiry in the matter in accordance with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter to be referred as "the Rules of 2007") so as to ascertain the actual date of birth of the respondent and also to verify the genuineness of the secondary school certificate and then to pass appropriate order in accordance with law. 5. 5. On remand of the case the learned trial Court after hearing the arguments on the application made on behalf of the respondent passed the impugned order dated 19.11.2010 and by allowing the application declared the respondent to be a juvenile being below 18 years of age on the date of incident and ordered that the case may be sent to the Juvenile Justice Board, Jaipur for further proceedings. 6. Being aggrieved by the impugned order the complainant-petitioner is before this Court. 7. Reiterating the grounds taken in the revision petition the learned counsel for the complainant-petitioner has submitted that vide order dated 16.8.2010 this Court while setting aside the order dated 1.6.2010 remanded the matter back to the trial Court with a specific and clear direction to conduct inquiry in the matter in accordance with Rule 12 of the Rules of 2007 so as to ascertain the actual date of birth of the respondent and also to verify the genuineness of the secondary school certificate, but even then the trial court did not conduct any inquiry and without verifying the genuineness of the secondary school certificate has passed the impugned order. The learned counsel further submitted that the impugned order itself shows that only arguments were heard by the learned court below and opportunity was not given to produce evidence as directed by this Court. It was also submitted that in absence of proper inquiry in accordance with Rule 12 of the Rules of 2007 and also without verification of the genuineness of the secondary school certificate the impugned order cannot hold ground and it is liable to be set aside. The learned counsel for the complainant petitioner prayed that this Court may declare that on the date of incident the respondent was not below 18 years of age and thus is not a juvenile within the meaning of the Act. 8. The learned counsel for the complainant petitioner prayed that this Court may declare that on the date of incident the respondent was not below 18 years of age and thus is not a juvenile within the meaning of the Act. 8. On the other hand, the learned counsel for the respondent by supporting the impugned order submitted that although this Court vide order dated 16.8.2010 while remanding the matter back directed the court below to conduct inquiry in the matter and also to verify the genuineness of the secondary school certificate, but no one including the complainant-petitioner has ever disputed the genuineness of the secondary school certificate produced on behalf of the respondent, so if the learned court below did not go into the verification of the genuineness of the secondary school certificate even then it cannot be said that the learned court below did not comply the direction made by this Court. The learned counsel further submitted that the learned court below was not obliged to take any further evidence to ascertain the actual date of birth of the respondent by the reason that to prove his actual date of birth the respondent produced before the learned court below the secondary school certificate and according to the provisions of Rule 12 of the Rules of 2007, the secondary school certificate is the conclusive proof of the date of birth. It was also submitted that production of secondary school certificate to prove his date of birth by the respondent is itself an inquiry referred to in Section 7-A of the Act and Rule 12 of the Rules of 2007. 9. In this revision petition the crux of the matter is to ascertain whether the learned court below has passed the impugned order in accordance with the directions made by this Court vide order dated 16.8.2010. 9. In this revision petition the crux of the matter is to ascertain whether the learned court below has passed the impugned order in accordance with the directions made by this Court vide order dated 16.8.2010. It would be useful to quote the operative part of the order dated 16.8.2010 which is as below: "Thus, following the ratio of the judgments cited above, the order impugned in this revision petition stands set aside and the matter is remanded back to the Court below with the direction to conduct inquiry in the matter in accordance with Rule 12 of the Rules of 2007 so as to ascertain the actual date of the birth of the petitioner and also to verify the genuineness of the Secondary School Certificate and then to pass appropriate order in accordance with law, without being influenced by the earlier order, preferably before conclusion of trial." 10. Thus, the operative part of the order dated 16.8.2010 reveals that the matter was remanded back to the court below with the direction to conduct inquiry in the matter in accordance with Rule 12 of the Rules of 2007 so as to ascertain the actual date of birth of the accused-respondent and also to verify the genuineness of the secondary school certificate. 11. It is an admitted fact that to prove his date of birth the respondent apart from the other documents has also filed the secondary school certificate issued by the Board of Secondary Education Rajasthan, Ajmer. It is pertinent to note that no one including the complainant-petitioner has ever disputed the genuineness of the secondary school certificate produced by the respondent. I am of the view that when even the complainant-petitioner has not disputed the genuineness of this certificate and has not alleged that the certificate produced by the respondent is forged or that it is not issued by the Board of Secondary Education Rajasthan, Ajmer then it was not necessary for the trial court to verify the genuineness of the certificate. It appears that the above direction was made by this Court by the reason that in the previous revision petition filed on behalf of the respondent, it was also submitted that the secondary school certificate produced by the respondent was completely disbelieved by the court below and that if at all there was any doubt the learned court below ought to have got the matter inquired in accordance with the provisions of Rule 12 of the Rules of 2007. I am of the considered view that if the court below in the facts and circumstances of the case did not verify the genuineness of the certificate the impugned order cannot be held to be illegal or irregular. 12. So far as the direction made by this Court to conduct inquiry in the matter in accordance with Rule 12 of the Rules of 2007 is concerned, it requires some detailed consideration. For this purpose, it would be useful to quote the relevant legal provisions. Section 7A of the Act, which has come into force with effect from 22.8.2006, is as below: "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 an 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 orders and the sentence, if any, passed by a court shall be deemed to have no effect." 13. (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 orders and the sentence, if any, passed by a court shall be deemed to have no effect." 13. The Central Government in exercise of the powers conferred by the proviso to sub-section (1) of Section 68 of the Act has framed the Rules of 2007. Rule 12 of the Rules of 2007 is relevant in the present matter, which is as below: "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 where of; (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." 14. (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." 14. Sub-section (1) of Section 7A of the Act provides that whenever a claim of juvenility is raised before any Court, the Court shall make an inquiry, take such evidence as may be necessary so as to determine the age of such person and shall record a finding whether the person is a juvenile stating his age as nearly as may be. The proviso to this sub-section provides that if a claim of juvenility is raised then such claim shall be determined in terms of the provisions contained in the Act and the Rules made thereunder. This provision clearly shows that although an inquiry is required to be made if a claim of juvenility is raised before any court, but evidence is required to be taken only when the Court feels that it is necessary to take evidence. The provision also indicates that the claim of juvenility shall be determined in terms of the provisions contained in the Act and Rules made thereunder. It is an admitted fact that the Central Government has framed Rules of 2007 under the Act. The procedure of inquiry for the determination of the juvenility is provided in Rule 12 of he Rules of 2007 which has already been quoted in entirety as above. 15. A close look at Rule 12 reveals that this Rule itself provides a complete code in which "inquiry" referred to in Section 7A of the Act about determination as the age of a juvenile is to be conducted and if any of the documents referred to in this Rule is available on record then no further evidence is required to be taken and the Court on the basis of the document referred to in the Rule itself shall determine the age of the person. According to Rule 12(3)(a)(i) first of all the age determination inquiry shall be conducted by seeking evidence by obtaining the matriculation or equivalent certificate. According to Rule 12(3)(a)(i) first of all the age determination inquiry shall be conducted by seeking evidence by obtaining the matriculation or equivalent certificate. Once the matriculation certificate or any other equivalent certificate is available on record, no further evidence is required to be taken by the reason that by obtaining the matriculation certificate or equivalent certificate the inquiry is complete. If in a case the matriculation certificate or equivalent certificate is available that shall be the conclusive proof of age of the person by whom the claim of juvenility was made. In the present matter as the secondary school certificate issued by the Board of Secondary Education Rajasthan, Ajmer was produced on behalf of the respondent to prove his date of birth, I am of the considered view that no further evidence was required to be taken by the court below even if this Court while remaining the matter back, directed the learned court below to conduct inquiry in the matter in accordance with Rule 12 of the Rules of 2007. The production of secondary school certificate by the respondent by itself amounts an inquiry that was to be conducted by the court below as directed by this Court. 16. In the case of Jeeta @ Jitendra vs. The State reported in 2010 (2) CJ (Cri.) (Raj.) 588 = 2010(3) RLW 2237, in para 6 of the judgment this Court has observed as follows: "6. Sub Rule (3) of Rule 12 of Rules of 2007 envisages that 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 the matriculation or equivalent certificates, if available, and in the absence whereof; the date of birth certificate from the school and in the absence whereof, the birth certificate given by a corporation or a municipal authority or a panchayat. The medical opinion with regard to the age of the delinquent child shall be sought only when a birth certificate or school certificate or matriculation certificate is not available with him. The Hon'ble Apex Court in umpteen cases has repeatedly held that the conclusive evidence for any persons age is his/her birth certificate." 17. The medical opinion with regard to the age of the delinquent child shall be sought only when a birth certificate or school certificate or matriculation certificate is not available with him. The Hon'ble Apex Court in umpteen cases has repeatedly held that the conclusive evidence for any persons age is his/her birth certificate." 17. The Hon'ble Apex Court in the case of Hari Ram vs. State of Rajasthan and another reported in (2009) 13 SCC, 211 = 2009(2) RLW 1400 (SC) in para 25 has observed as under: "Subsequently, in the Juvenile Justice (Care and Protection of Children) Rules, 2007, which is a comprehensive guide as to how the provisions of the Juvenile Justice Act, 2000, are to be implemented, Rule 12 was introduced providing the procedure to be followed by the courts, the Boards and the Child Welfare Committees for the purpose of determination of age in every case concerning a child or juvenile or a juvenile in conflict with law." 18. The Hon'ble Apex Court has further observed in para 27 of the judgment as under: "27. Sub-rules (4) and (5) of Rule 12 are of special significance in that they provide that once the age of a juvenile or child in conflict with law is found to be less than 18 years on the date of offence on the basis of any proof specified in sub-rule (3) the Court or the Board or as the case may be the Child Welfare Committee appointed under Chapter IV of the Act, has to pass a written order stating the age of the juvenile or stating the status of the juvenile, and no further inquiry is to be conducted by the court or Board after examining and obtaining any other documentary proof referred to in sub-rule (3) of Rule 12. Rule 12, therefore, indicates the procedure to be followed to give effect to the provisions of Section 7-A when a claim of juvenility is raised." 19. Rule 12, therefore, indicates the procedure to be followed to give effect to the provisions of Section 7-A when a claim of juvenility is raised." 19. In view of the relevant provisions and the observations made by the Hon'ble Apex Court and also by this Court, I am of the firm view that the order impugned is sound in law and in the facts and circumstances of the case the learned Court below was not required to take any further evidence in the matter for ascertaining the actual date of birth of the respondent and also was not required to verify the genuineness of the certificate produced by the respondent. Thus, I find no illegality or irregularity in the order impugned. 20. Consequently, the revision petition being devoid of any substance is, hereby, dismissed.