Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 689 (MP)

Sakir Mewati v. State of M. P.

2011-06-28

G.D.SAXENA

body2011
ORDER 1. This revision petition under section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000, read with sections 397/401 of the Code of Criminal Procedure, 1973, has been preferred against an order dated 16th March 2011 in Criminal Case No.25/2011 passed by the First Additional Sessions Judge Guna, holding after conducting an inquiry that the petitioners are not juveniles. 2. The facts necessary for the disposal of this petition are that on 6th December 2010 at Town of Raghogarh, District Guna, one Deepak Soni s/o Babulal Soni was reported to be missing from his house. Said report was recorded in Rojnamcha of the police station. During search on 8.12.2010, the dead body of Deepak Soni in a gunny beg was found under beneath of culvert of ITI at Raghogarh. Accordingly, Marg report was registered. During inquiry, it appeared that the accused including petitioners committed murder of missing Deepak Soni and caused the evidence of offence to be disappeared with an intention to suppress the offender from legal punishment. An FIR was lodged and after investigation the charge-sheet was filed before the criminal Court. After committal, the Sessions trial was commenced before the trial Court at Guna. During trial, the petitioners filed the application stating that on the date of incident, i.e., 6th December 2010, they were below 18 years of age, hence they being juveniles it was requested that their case be referred to the Juvenile Justice Court for holding an inquiry for determination of the question regarding their age and trial before the board. The trial Court on the basis of the evidence of the petitioners filed with the application and the evidence collected during investigation, concluded that. the petitioners were not juvenile. Hence, this revision. 3. The learned counsel for the petitioners referred to the provisions of section 7 of the said Act as well as the provisions of section 49 thereof. He submitted that the finding of the learned Additional Sessions Judge ought to be regarded only as an opinion and should be on the same footing as an opinion of a Magistrate under section 7. Therefore, it was incumbent upon the Juvenile Justice Board to hold a full fledged enquiry under section 49 and record a definite finding with regard to the age of the accused. Therefore, it was incumbent upon the Juvenile Justice Board to hold a full fledged enquiry under section 49 and record a definite finding with regard to the age of the accused. According to him, the order passed by the learned Additional Sessions Judge is in the nature of a mere opinion. He also referred to the school certificate and the mark sheets to contend that the petitioners were below 18 years of age, but the trial Court relied on the ossification test conducted during investigation which was not conclusive proof of age. Hence the impugned order was patently illegal, arbitrary and deserves to be set aside. 4. On the other hand, the learned Panel Lawyer for the State referred to section 6 of the said Act in particular sub-section (2) thereof which clearly stipulates that the powers conferred on the Juvenile Justice Board by or under the said Act may also be exercised by the High Court and the Court of Sessions, when the proceeding comes before them in appeal, revision or otherwise. According to him, the order passed by the learned Additional Sessions Judge would be in exercise of the powers conferred under section 6(2) and, therefore, it was not necessary for the Juvenile Justice Board to have conducted a full-fledged inquiry. Hence, it is prayed that the revision be dismissed. 5. Before considering the rival contentions of the parties, it would .be relevant to set out the material provisions of the said Act: "6. Powers of Juvenile Justice Board. -- (1) Where a Board has been constituted for any district or a group of districts, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law." 6. The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise. "7. Procedure to be followed by a Magistrate not empowered under the Act. The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise. "7. Procedure to be followed by a Magistrate not empowered under the Act. -- (1) When any Magistrate not empowered to exercise the powers of a Board under this Act is of the opinion that a person brought before him under any of the provisions of this Act (other than for the' purpose of giving evidence), is a juvenile or the child, he shall without any delay record such opinion and forward the juvenile or the child and the record of the proceeding to the competent authority having jurisdiction over the proceeding. (2) The competent authority to which the proceeding is forwarded under sub-section (1) shall hold the inquiry as if the juvenile or the child had originally been brought before it. . Section 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. (2) No order of the competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not juvenile or the child, and the age recorded by the competent authority to be the age of the person so brought before it shall for the purpose of this Act, be deemed to be the true age of that person." 7. A plain reading of the aforesaid provisions make it clear that insofar as a juvenile in conflict with law is concerned, the Juvenile Justice Board has exclusive power to deal with such a juvenile in respect of the proceedings under the said Act. A plain reading of the aforesaid provisions make it clear that insofar as a juvenile in conflict with law is concerned, the Juvenile Justice Board has exclusive power to deal with such a juvenile in respect of the proceedings under the said Act. Furthermore by virtue of section 7 if a Magistrate who is not empowered to exercise the powers of the Juvenile Justice Board, is of the opinion that a person brought before him is a juvenile then he is required to record such an opinion without delay and forward the juvenile and the record of the proceeding to the competent authority having jurisdiction under the Act. The meaning of this is clear that where the Magistrate who is not functioning as a Juvenile Justice Board feels that a person brought before him is a juvenile he has to record such an opinion and send such juvenile to be dealt with by the competent authority. Before a person can be sent to the competent authority for being dealt with in accordance with the said Act, the Magistrate has to record an opinion that such person is a juvenile as defined in section 2(k) of the said Act. Section 7(2) provides that after the juvenile has been sent to the competent authority, the latter shall hold the 'inquiry' as if the juvenile or the child had originally been brought before it. This 'inquiry' has reference to the inquiry to be conducted by the Board under section 14 of the Act and does not have reference to the inquiry for determination of age of a person under section 49 of the said Act. 8. The provisions of section 6(2) of the said Act also make it clear that the powers conferred on the Board by or under the said Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or 'otherwise'. This provision has been relied upon by the learned Panel Lawyer representing the State to submit that the learned Additional Sessions Judge had, in exercise of this power determined the age of the accused-petitioners. Therefore, no further determination of age was necessary by the Juvenile Justice Board. 9. This provision has been relied upon by the learned Panel Lawyer representing the State to submit that the learned Additional Sessions Judge had, in exercise of this power determined the age of the accused-petitioners. Therefore, no further determination of age was necessary by the Juvenile Justice Board. 9. On the other hand, the learned counsel appearing for the petitioners had submitted, as indicated above, that the matter before the learned Additional Session Judge was neither in an appeal nor a revision and it would also not fall within the expression 'or otherwise' because it did not relate to' a proceedings under the Act. He submitted that after an opinion is formed by a Magistrate that a person before him is a juvenile and such person is sent to the appropriate Court for being dealt with under the provisions of the said Act, it is still incumbent upon the competent authority (Juvenile Justice Board) to make an Inquiry under section 49 of the said Act. 10. Section 8(1) of the Juvenile Justice Act reflects the proper spirit and principle which also applies to any case before any Magistrate or Court not empowered to deal with a juvenile delinquent under the Juvenile Justice Act where any question or doubt is raised about the age of the accused. Going by that principle, if during the trial of a case in a criminal Court any question of juvenility of any accused is raised before the Court it becomes incumbent upon the Court to make a preliminary enquiry in the matter and form an opinion as to whether the person concerned is a juvenile and if the opinion is affirmative in that event the case has to be referred to the Juvenile Court for being dealt with under the Juvenile Justice Act, in which case the Juvenile Court shall yet make due enquiry under section 32(1) of the Juvenile Justice Act about age of the person and record a finding whether the person concerned is a juvenile or not. However, if the opinion of the Criminal Court is otherwise, namely, that the person concerned was not a juvenile on the date of the occurrence, then the matter need not be referred to the Juvenile Court, but such opinion of Court will be subject to revision by a superior Court. 11. However, if the opinion of the Criminal Court is otherwise, namely, that the person concerned was not a juvenile on the date of the occurrence, then the matter need not be referred to the Juvenile Court, but such opinion of Court will be subject to revision by a superior Court. 11. A reading of the aforesaid extracts makes it clear that it is well within the powers of the Sessions Court to embark upon an inquiry as to the age of a person instead of referring the matter to the Juvenile Court/ Juvenile Justice Board. It is also clear that if the Sessions Court come to the opinion that the person before it is not a juvenile then the matter ends there and need not be referred to the Juvenile Court/Juvenile Justice Board. However, this opinion of the Sessions Court would still be subject to correction by a superior Court. Hence, the Sessions Judge can exercise powers of the Board in view of the provisions of section 6(2) of the said 12. No doubt true that under section 6(2) of the Juvenile Justice Act, 2000, the Court of Session could exercise the powers conferred on the Board only when the proceedings of a case came before it in appeal or revision or in connection with any other proceedings under the Act. The words 'or otherwise' clearly show that the learned Additional Sessions Judge could pass such an order in a proceeding even other than appeal or revision before him. 13. At this juncture, it would be useful to refer the decision of the apex Court in the case of Jitendra Ram alias Jitu v. State of Jharkhand [ AIR 2006 SC 1933 ], the Hon'ble apex Court held: "We are, however, not oblivious of the decision of this Court in Bhola Bhagat v. State of Bihar [ (1997)8 SCC 720 ], wherein an obligation has been cast on the Court that where such a plea is raised having regard to the beneficial nature of the socially-oriented legislation, the same should be examined with great care. We are, however, of the opinion that the same would not mean that a person who is not entitled to the benefit of the said Act would be dealt with leniently only because such a plea is raised. Each plea must be judged on its own merit. We are, however, of the opinion that the same would not mean that a person who is not entitled to the benefit of the said Act would be dealt with leniently only because such a plea is raised. Each plea must be judged on its own merit. Each case has to be considered on the basis of the material brought on records. The provisions of a beneficial legislation should ordinarily be given effect to. However, we may notice that the appellant is literate. Presumably he attended some school. However, no certificate of his date of birth or any other proof as regards his date of birth is available on records. No other material apart from the estimate of the Court has been brought to our notice. In the absence of any material on record, we cannot arrive at a definite conclusion that the appellant as on the date of commission of the offence was a child within the meaning of the said Act. 14. In the case of Krishna Bhagwan v. The State of Bihar [(1989) PLJR 507], N.P. Singh, J., (as His Lordship then was), speaking for a Full Bench of the Patna High Court, opined : "Section 32 vests power in the Juvenile Court to make due enquiry in respect of the age of the accused on the date of the commission of the offence and for that purpose such Court has to take evidence as may be necessary and to record a finding whether the accused in question was a juvenile. It need not be pointed out that it is not possible for this Court to determine the age of an accused on the date of the commission of the offence because that has to be determined on the basis of the evidence to be adduced and other materials in support thereof being produced. This determination should not be based merely on written opinion of the doctors produced before this Court. Prosecution has right to cross-examine such medical or forensic experts who have given their opinion about the age of the accused in order to demonstrate that the accused was not a juvenile on the date of the commission of the offence. This determination should not be based merely on written opinion of the doctors produced before this Court. Prosecution has right to cross-examine such medical or forensic experts who have given their opinion about the age of the accused in order to demonstrate that the accused was not a juvenile on the date of the commission of the offence. This is necessary because by the time the plea is taken before the appellate Court in almost all the cases the accused concerned must have ceased to be a juvenile due to lapse of time making it more difficult for the appellate Court as well as the Juvenile Court to determine as to what was his age at the time of the commission of the offence. In my view, in such a situation, the Courts including Juvenile Court should get the accused held guilty of-serious offences, examined by a Medical Board and should determine the age of such accused on basis of the materials on the record including the opinion of the Medical Board. Once the legislature has enacted a law to extend special treatment in respect of trial and conviction to juveniles, the Court should be jealous while administering such law so that the delinquent juveniles derive full benefit of the provisions of such Act but, at the same time, it is the duty of the Courts that the benefit of the provisions meant for juveniles are not derived by unscrupulous persons, who have been convicted and sentenced to imprisonment for having committed heinous and serious offences, by getting themselves declared a children or juveniles on the basis of procured certificates. According to me, if the plea that the accused was a child or juvenile on the date of the commission of the offence is taken for the first time in this Court, then this Court should proceed with the hearing of the appeal, as required by section 26 of the Juvenile Act and should record a finding in respect of the charge which has been levelled against such an accused. If such an accused is acquitted, there is no question of holding any enquiry in respect of the accused being a child on the relevant date but, if the finding of the guilt recorded by the Court below is affirmed and this Court on the basis of materials on record is prima facie satisfied that the accused may be a child/ juvenile within the meaning of the relevant Act on the date of the commission of the offence, it should call for a finding from the Children's Court/Juvenile's Court in accordance with section 32 of the Act. If the finding so received is accepted by this Court, then this Court in terms of section 26 of the Juvenile Act should pass an order directing the Juvenile Court to pass order in accordance with sections 21 and 22 of the Act." We with respect agree to the said approach. 15. In the case of Babloo Pasi v. State of Jharkhand [ AIR 2009 SC 314 ], the Hon'ble apex Court in paras 15, 16 held: ".... 22. Procedure to be followed by a Board in holding inquiries and the determination of age. -- (1) ..... (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 )." Thus, a per rule 22, in the absence of birth or matriculation certificates, in order to record a finding in respect of age of a person, the Board is required to obtain the opinion of a duly constituted Medical Board. It is clear from a bare reading of the rule that although the Board is bound to obtain the opinion of the Medical Board but the opinion per se is not a conclusive proof of age of the person concerned. It is clear from a bare reading of the rule that although the Board is bound to obtain the opinion of the Medical Board but the opinion per se is not a conclusive proof of age of the person concerned. It is no more than an opinion. More so, when even the Medical-Legal opinion is that owing to the variation in climatic, dietic, hereditary and other factors, affecting the people of different States in the country, it would be imprudent to formulate a uniform standard for the determination of the age. True, that a Medical Board's opinion based on the radiological examination is a useful guiding factor for determining the age of a person but is not incontrovertible. An entry relating to date of birth made in the school register is relevant and admissible under section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded {See: Birad Mal Singhvi v. Anand Purohit [1988 (Supp.) SCC 604]}." 16. There is no doubt that the learned Additional Sessions Judge had the power and it was well within his jurisdiction to determine the age of the accused-petitioners. This view is further fortified by referring to the decisions of the Hon 'ble Supreme Court wherein it is observed that even in the absence of an enquiry under the Act, the Sessions Court, after the case is committed to it has the power to make an enquiry and determine the age of the accused if it considers it necessary in the interests of justice or a prayer is made in that behalf. However, if one reads the decisions (supra), carefully, one finds that there is a suggestion that even if the opinion of the Sessions Court is that a person before it is a juvenile and the juvenile is sent to the Juvenile Justice Board, it would still be incumbent upon the Juvenile Justice Board to hold an inquiry under section 32(1) of the Juvenile Justice Act (which is similar to section 49 of the said , Act). To my mind, the key lies in determining whether the Sessions Court merely formed an opinion or recorded a definitive finding with regard to the age of the accused. To my mind, the key lies in determining whether the Sessions Court merely formed an opinion or recorded a definitive finding with regard to the age of the accused. If it was merely an opinion then it would be open to the Juvenile Justice Board to conduct an inquiry into the age of the person who is apparently a juvenile under section 49 of the said Act. However, if the Sessions Court has returned a definite finding with regard to the age of the accused based upon an inquiry conducted by it then it would not be open to the Juvenile Justice Board to conduct an inquiry afresh under section 49 of the said Act. 17. In the facts of the present case, it is apparent that the order passed by the learned Additional Sessions Judge was merely an expression of an opinion that the accused petitioners were not below 18 years of age on the date of commission of alleged offence. Therefore, the conclusion arrived at by the learned Additional Sessions Judge being mere expression of an opinion with regard to the age of the accused-petitioners was not a definite finding indicating that the said accused were not juveniles. In such situation, and as observed by the apex Court in the aforecited cases, the matter deserves to be remitted back to the trial Court. 18. For the aforementioned reasons, the revision is allowed and the matter is remitted back to the trial Court, heading the Board, with a direction to re-determine the age of the accused-petitioners, as on the date of commission of the alleged offences, in accordance with law, enunciated above. In the event they are found to be juveniles within the meaning of the Act, they shall be dealt with accordingly. However, if they are not found to be so, they would face trial under the ordinary criminal law. The inquiry shall be completed expeditiously, preferably within a period of one month of receipt of a copy of this judgment.