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2012 DIGILAW 1222 (RAJ)

Lekhram v. State of Rajasthan

2012-05-10

DALIP SINGH, MEENA V.GOMBER

body2012
Hon'ble SINGH, J.—This matter comes up on the application under section 5 of the Limitation Act for condonation of delay in filing the revision petition against the order dated 7.8.2008 passed by the learned Additional Sessions Judge (Fast Track) Behrod, District Alwar in Sessions Case No.5/2008. By the aforesaid order, the learned trial court rejected the plea of the accused applicant regarding his being a juvenile as he is below 18 years of age and consequently entitled to the protection under the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short “the J.J. Act of 2000”). 2. The registry has pointed out that the revision petition has been filed with the delay of 1041 days. It is for the condonation of the aforesaid delay and that the application u/s 5 of the Limitation Act has been filed. 3. We have considered the application and the grounds stated therein seeking condonation of delay. 4. So far as the right of the juvenile to claim the benefit of the J.J. Act of 2000 is concerned, it is now well settled that a person who claims to be a juvenile may claim the said benefit even in the appeal. In the case of Vaneet Kumar Gupta alias Dharminder vs. State of Punjab reported in (2009) 17 SCC 587 the Hon'ble Supreme Court in para 7 of the report after considering the provisions of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 has held that “it is manifest from a fair reading of the proviso 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.” (emphasis supplied) 5. Their Lordship of the Supreme Court have further held in Vaneet Kumar's case (supra) as under : “It is manifest from a fair reading of the proviso to sub-section (1) that a claim of juvenility can be raised at any stage and even after the final disposal of the case. In that view of the matter, the appellant is entitled to raise before us claim of juvenility at the relevant time.” 6. In that view of the matter, the appellant is entitled to raise before us claim of juvenility at the relevant time.” 6. Accordingly, that being the position of law as enunciated by the Hon'ble Supreme Court relying to right of juvenile to seek justice under the J.J. Act of 2000, we would take a lenient view in the matter and condone the delay in filing the revision petition though it would have been open for the appellant who has preferred the appeal against the judgment of conviction to have raised the aforesaid objection in the appeal as well. Accordingly, the application u/Sec. 5 of the Limitation Act is allowed. The delay is condoned. 7. We have heard the learned counsel for the parties on the merits of the revision petition. 8. Since the matter relates to allowing the benefit of the Juvenile Justice (Care and Protection of Children) Act, 2000 to the accused Lekhram whose plea was rejected by the learned trial court, we deem it just and proper that the matter should be decided at the earliest in case it is held that the petitioner is entitled to the aforesaid benefit. Accordingly, the learned Public Prosecutor was directed by this court to come prepared for arguments on the revision petition vide order dated 9.5.2012. 9. We have heard the learned counsel for the petitioner as well as the learned Public Prosecutor and perused the record and the order passed by the learned trial court dated 7.8.2008. 10. From the side of the accused it was contended that on the date of the alleged incident i.e. 18.9.2007, the age of the accused Lekhram S/o Shri Choutey Lal, was less than 18 years and hence he was a Juvenile. It was submitted that his date of birth is 15.8.1990. Reliance was placed by the peti-tioner on two documents Ex.1 and Ex.2 being the alleged copy of the mark-sheet issued by the Board of Secondary Education wherein his date of birth has been recorded as 15.8.1990. From the side of the prosecution, evidence was produced in the form of the register showing the admission entries in the school which carried interpolation and over-writing and in the same the date of birth has been recorded as 15.8.1989. From the side of the prosecution, evidence was produced in the form of the register showing the admission entries in the school which carried interpolation and over-writing and in the same the date of birth has been recorded as 15.8.1989. After taking the aforesaid evidence and fact showing two different dates, the learned trial court considered it appropriate to order the medical examination of the petitioner for determina-tion of the age and ultimately rejected the application of the petitioner holding that on the basis of the report of the Medical Officer, the age of the applicant petitioner was more than 18 years on the date of the incident and accordingly denied the benefit of provisions of J.J. Act of 2000 to the petitioner. 11. Learned counsel appearing for the petitioner submitted that the learned trial court while determining the aforesaid question, has failed to take into account the statutory provisions contained in rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 wherein the procedure to be followed in determination of age has been prescribed. It was submitted that as per provisions contained in rule 12(3)(a)(i), the matriculation or equivalent certificates, if available, in the first instance takes precedence over all other material for determination of the age and therefore, keeping in view the provisions of rule 12 (3)(a)(i), the record of the school as well as the opinion of the Medical Officer has to be excluded in the face of the certificate issued by the Board of Secondary Education. 12. Learned Public Prosecutor, on the other hand, pointed out that at the time of seeking admission in the school, the parents of the petitioner had given the date of birth of the petitioner as 15.8.1989 and therefore, there is a conflict between the matriculation certificate and the certificate of 8th class produced by the petitioner in evidence and the entries in the admission register of the school. It was therefore submitted that the learned trial court has rightly decided to have the petitioner medically examined for determination of the age of the applicant by the Medical Board, which has given the opinion that the petitioner as on the date of incident i.e. 18.9.2007, was more than 18 years of age and therefore in view of the findings of the Medical Board, denied the benefit of provisions of the J.J. Act, 2000. 13. 13. With a view to decide the aforesaid controversy, it is necessary to look into the provisions of rule 12 of the Rules of 2007 which reads 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, given benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. 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, given 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 dis-posed 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. A perusal of Sub-rule (3) of Rule 12 shows that the Court or the Board which is required to determine the age shall conduct the enquiry for determining the age and for the aforesaid purpose, seek evidence by obtaining the matriculation or equivalent certificates if available. 14. A perusal of Sub-rule (3) of Rule 12 shows that the Court or the Board which is required to determine the age shall conduct the enquiry for determining the age and for the aforesaid purpose, seek evidence by obtaining the matriculation or equivalent certificates if available. Clause (a)(i) of sub-rule (3) further provides that only “in the absence” of the matriculation or equivalent certificate, the date of birth certificate from the school (other than a play school) first attended can be looked into as per clause (ii) and in the absence of both, the third category of evidence as mentioned in clause (iii) by way of birth certificate given by the Corporation or Municipality or a Panchayat can be looked into. The words in clause (i), (ii) and (iii) of clause (a) of Sub-Rule (3) of Rule 12 “in the absence” cannot be lost sight of and the legislature while framing rule 12 has specifically given a mandate that the availability of the first of the documents would exclude the taking into consideration of all the remaining documents in clause (ii) and (iii). It is further reiterated by the provisions of rule 12(3)(b) which makes it further clear that while enabling the Board / Court for seeking the medical opinion with regard to the age that the opinion can be sought “only in the absence of the material mentioned in either clause (i)(ii) or (iii) of Clause (a)”. 15. In the present case, the matriculation certificate showing the date of birth as 15.8.1990 was produced. It was incumbent upon the learned trial court to have relied upon the same excluding the other evidence in the form of the admission register or the opinion of the Medical Board unless in the opinion of the court the document so produced was a forged or a fraudulent one or obtained by misrepresentation. 16. We find from the impugned order that the learned court below has not considered the aforesaid provisions of Rule 12 of the Rules of 2007 which came into force w.e.f. 26.10.th October, 2007 by publication in the Gazette of India Extra Pt. II. 17. Earlier judgments passed by the courts prior to enactment of the Rule 12(6) would therefore have to be excluded and the cases shall now have to be decided in accordance with the provisions of rule 12 after the same has been brought into force. 18. II. 17. Earlier judgments passed by the courts prior to enactment of the Rule 12(6) would therefore have to be excluded and the cases shall now have to be decided in accordance with the provisions of rule 12 after the same has been brought into force. 18. In the light of the above, we allow this revision petition and direct that the matter be remanded back to the learned Addl. Sessions Judge (Fast Track) Behrod/Trial Court to decide the question afresh in accordance with law. The record pertaining to the aforesaid matter be sent back to the learned trial court with the direction to decide the same preferably before 30.6.2012.