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Uttarakhand High Court · body

2012 DIGILAW 151 (UTT)

LOKESH v. STATE OF UTTARAKHAND

2012-04-11

TARUN AGARWALA

body2012
JUDGMENT Heard Mr. Subhash Chandra Tyagi, the learned counsel for the revisionist, Mr. T. C. Agarwal, the learned Addl. G.A. for the State and Mr. Parikshit Saini, the learned counsel for the complainant respondent no.2. 2. A first information report was lodged against unknown person at police station Manglore, District Haridwar under Section 302 I.P.C. on 03rd February, 2004. Upon investigation, the revisionist was arrested on 17.02.2004. The mother of the revisionist filed an application alongwith an affidavit contending that the revisionist is a juvenile and should be released. In support of her submission, she annexed the school leaving certificate of the revisionist indicating his the date of birth is 08th October, 1987. 3. The Juvenile Justice Board did not consider the school leaving certificate, but considered the medical report which opined that the age of the revisionist was approximately 19 years and further considered his facial expression of having a beard and a mustache and, consequently, considered that the revisionist was not a minor and rejected the application. The revisionist, being aggrieved filed an appeal, which was also dismissed by an order dated 18.10.2005. The appellate court relied upon the medical report and did not consider the school leaving certificate as well as the Pariwar Register that was filed before the court below. 4. The revisionist, being aggrieved by the aforesaid two orders, has filed the present criminal revision under Section 397 & 401 of the Cr.P.C. 5. Before the Juvenile Court and the Appellate Court, certain evidence was filed, namely the school leaving certificate and the extract of the Pariwar Register. Before this court, two school leaving certificate have been filed. The first school leaving certificate is dated 12.12.2005 issued by the Principal, Primary School, Kuwahedi, Vidhansabha Kshetra, Narsan, Haridwar which indicates that the date of birth of the revisionist, as recorded in their register, is 08th October, 1987 and that he was admitted in the school for the first time on 16th July, 1994 and left the school on 20th May, 1998 after passing Class-V. The second school transfer certificate is dated 03rd June, 2004 issued by the Principal, R.M.P.P.V. Inter College, Gurukul Narsan, Haridwar which also indicates the date of birth of the revisionist is 08th October, 1987 and that the revisionist was admitted in the school on 30th July, 1998 and left the institution on 28th May, 2003. The third evidence is the Pariwar Register which the appellate court itself indicates the date of birth of the applicant as 14th March, 1986. 6. The learned counsel for the revisionist submitted that if the revisionist is 18 years or less, he has to be declared juvenile as per Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act). According to the learned counsel for the revisionist, the age of the revisionist has to be seen and considered on the date of the incident i.e. 13.02.2004. If the date of birth indicated in the Pariwar Register is to be considered which is 14th March 1986, the revisionist would be 17 years 10 months & 29 days at the time of the incident and, therefore, would be below 18 years and in the event, the date of birth recorded in the school leaving certificate is taken into consideration, which is 08th October 1987, even then, the revisionist would be less than 18 years at the time of the incident. The learned counsel for the revisionist submitted that these documentary evidence has not been considered and that the Juvenile Justice Board has relied upon the medical report, which could only be used as a last resort in the absence of documentary evidence. 7. Before proceeding further, Section 49 of the Act provides the provision for determining the age of a person to find out as to whether he is juvenile or not. For facility, the provision of Section 49 of the Act is extracted hereunder: “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 afidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.” 8. In 2007, the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the Rules of 2007) was enacted and came into force. Rule 97 of the Rules of 2007 is extracted hereunder: “97. Pending Cases. In 2007, the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the Rules of 2007) was enacted and came into force. Rule 97 of the Rules of 2007 is extracted hereunder: “97. Pending Cases. – (1) No juvenile in conflict with law or a child shall be denied the benefits of the Act and the rules made thereunder. (2) All pending cases which have not received a finality shall be dealt with and disposed of in terms of the provisions of the Act and the rules made thereunder. (3) Any juvenile in conflict with law, or a child shall be given the benefits under sub-rule (1) of this rule, and it is hereby clarified that such benefits shall be made available to all those accused who were juvenile or a child at the time of commission of an ofence, even if they cease to be a juvenile or a child during the pendency of any inquiry or trial. (4) While computing the period of detention or stay or sentence of a juvenile in conflict with law or of a child, all such period which the juvenile or the child has already spent in custody, detention, stay or sentence of imprisonment shall be counted as a part of the period of stay or detention of sentence of imprisonment contained in the final order of the court or the Board.” 9. From the aforesaid, it is clear that no juvenile in conflict with law shall be denied the benefits of the Act and the Rules made thereunder. Sub-rule (2) of Rule 97 of the Rules of 2007 specifically provides that all pending cases which have not received a finality shall be dealt with and disposed of in terms of the provisions of the Act and Rules made thereunder. Sub-rule (3) of Rule 97 clearly provides that any juvenile in conflict with law shall be given the benefit under sub-rule (1) of Rule 97. 10. In the light of the aforesaid, since finality has not been received and the case is pending, the Rules of 2007 becomes applicable automatically as per Rule 97 of the Rules of 2007. 11. Since the Rules of 2007 is applicable, Rule 12 of the Rules of 2007 becomes applicable, which provides a procedure for determining the age of a juvenile. 11. Since the Rules of 2007 is applicable, Rule 12 of the Rules of 2007 becomes applicable, which provides a procedure for determining the age of a juvenile. For facility, Rule 12 of the Rules of 2007 is extracted hereunder: “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. 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) …………… (5) …………… (6) ……………” 12. Sub-rule (3) of Rule 12 of the Rules of 2007 clearly indicates that the Committee while making an inquiry for determining the age of the child or juvenile will consider the matriculation or equivalent certificate with regard to the date of birth and, in the absence of this certificate, will consider the date of birth from the school first attended, other than a play school, and as a last resort, will consider the birth certificate given by a Municipal authority or a Panchayat and, in the absence of all these documents, the Board may constitute a medical board and get the child or the juvenile examined for the purpose of determining his age. 13. In the light of the aforesaid Rules which is applicable, the court finds that in the instant case, the Juvenile Justice Board did not consider the school leaving certificate or the Pariwar Register and have only considered the medical examination. Since Rules has now been prescribed, it is imperative for the Juvenile Justice Board to consider the documentary evidence especially, the public documents, namely, the Pariwar Register, etc. and, thereafter, give a finding on the age of the revisionist. 14. For the reasons stated aforesaid, the impugned orders of the Juvenile Justice Board dated 07.01.2005 and the appellate order of the court below dated 18.10.2005 cannot be sustained and are hereby quashed. and, thereafter, give a finding on the age of the revisionist. 14. For the reasons stated aforesaid, the impugned orders of the Juvenile Justice Board dated 07.01.2005 and the appellate order of the court below dated 18.10.2005 cannot be sustained and are hereby quashed. The criminal revision is allowed and the matter is remitted again to the Juvenile Justice Board to reconsider the matter and re-determine the age of the revisionist as per the procedure prescribed under Rule 12 of the Rules of 2007 in the light of the observations made above and pass a fresh order within four months from the date of production of a certified copy of this order.