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Madhya Pradesh High Court · body

2012 DIGILAW 483 (MP)

THAKAT SINGH v. STATE OF MADHYA PRADESH

2012-05-03

G.D.SAXENA

body2012
Judgement G D Saxena, J [1] This revision petition under Sections 397/401 of the Code of Criminal Procedure 1973, has been preferred against an order dated 12th January, 2012 in Sessions Case No.322/11 passed by the Third Additional Sessions Judge Guna (M.P.), dismissing thereby the application of the petitioners-accused for holding them as juveniles. [2] The case of the petitioners are that during trial, the petitioners filed the application stating that on the date of incident, i.e., 14th August, 2011, they were below 18 years of age, hence, being juveniles it was requested that their case be referred to the Juvenile Justice Court for holding an inquiry with regard to determination of 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 juveniles, hence, this revision. [3] The learned counsel for the petitioners submitted that the learned trial court has committed an illegality in passing the impugned order. It is submitted that the learned trial court has wrongly acted upon the evidence of the Medical Board and left to consider that its opinion per se is not a conclusive proof of age of the person concerned. He submits that the Medical evidence as to the age of a person, though a very useful guiding factor, but it has to be considered alongwith other cogent evidence. Hence, according to the learned counsel, the impugned order is patently illegal, arbitrary and deserves to be set aside. [4] On the other hand, the learned Public Prosecutor for the respondent/State submitted that there is no illegality in the impugned order calling for interference by this court under revisional jurisdiction. Therefore, it is prayed that the revision be dismissed. [5] Heard the learned counsel appearing for the parties and also perused the documents and the evidence as adduced by the parties and the law applicable to the present case. [6] The point for consideration before this court is whether or not the trial court had applied the correct parameters for determining the age of the accused, who is claiming to be juvenile on the date of occurrence and whether the findings recorded by the trial court are suffered from any illegality or perversity, warranting interference by this court in exercise of revisional jurisdiction ? [7] Determination of age of a delinquent, particularly in borderline cases, is rather a complex exercise. Hence, before considering the rival contentions of the parties, it would be profitable to set out the material provisions of the Juvenile Justice (Care & Protection) Act 2000. Section 7-A. Procedure to be followed when claim of Juvenile is raised before any court.- (1) Whenever a claim of Juvenility is raised before any court or a court is of 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 stating his age as nearly as may be; Provided that a claim of juvenility may be raised before any court and it shall be recognized 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 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. 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 purpose of giving evidence) is juvenile or a child, the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary 9but not an affidavit) ans 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 a 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. [8] The relevant provision of the Juvenile Justice (Care & Protection of Children) Rules 2007 about the procedure to be adopted in determining the age of the person by the competent authority is as follows :- Rule 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 a child or a juvenile in conflict with the laws 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 juvenile or otherwise of the juvenile or a child or as the case may be the juvenile in conflict with the 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 the 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 certificate or equivalent certificate, if available and in absence whereof; (ii) the date of birth certificate from the school (other than a 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 a child. (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 a child. In case 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 the 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 clause (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 the 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 Section (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 7-A, 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 other documentary proof referred to in Sub Rule (3) of this Rule. (5) Save and except where ,further inquiry or otherwise is required inter alia in terms of Section 7-A, 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 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." [9] On perusal of the provision as mentioned in Section 7 of the Act, it appears that when any Magistrate not empowered to exercise the powers of the board under this Act is of opinion that a person brought before him under any provisions of this Act (other than for purpose of giving evidence) is juvenile or the child, he shall without delay record such opinion and forward the juvenile or the child and record of the proceeding to the competent authority having jurisdiction over the proceeding. Then the competent authority shall hold the inquiry as if the juvenile or the child has been brought before it. It clearly indicates as soon as the trial court not having jurisdiction under the Act found prima facie that the accused present before the court is juvenile, it shall forward the juvenile or the child alongwith the record of the proceeding to the board having jurisdiction under the Act for making an inquiry under Section 49 of the Act. [10] In the case of Jitendra Ram alias Jitu Vs. State of Jharkhand, 2006 AIR(SC) 1933, the 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. 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 materials 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 regard 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." [11] Further, in the case of Krishna Bhagwan Vs. 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 as 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 orders in accordance with sections 21 and 22 of the Act." We with respect agree to the said approach." [12] In the case of Babloo Pasi Vs. State of Jharkhand, 2009 AIR(SC) 314, the Hon. 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, as 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 no more than an opinion. 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 Medico-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 Supp1 SCC 604"). [13] On perusal of the facts of the present case, it transpires that during inquiry for determining the age of the juveniles, relevant materials such as the horoscope, birth certificates of the juveniles, the certificates of matriculation examination were not available before the court concerned except the opinion of the Medical Board. The witnesses adduced by the juveniles admitted in their cross-examination that they were narrating the dates of birth of the petitioners-accused only on the basis of gesture and assumption. As per medical evidence of Dr. D.S.Rana, it is gathered that on 3/12/11, he took out the X-ray of the accused with a view to determine the age. After examination of accused Dharu Singh, he found that the Epiphysis of right knee elbow wrist and iliac crest appeared and fused. Hence, according to him, the age of accused Dharu Singh was above 20 years but below 22 years. The said opinion is given as per Radiological report (Annexure/1). As regards other accused Takhat Singh, he opined that Epiphysis of elbow, wrist, knee and iliac crest appeared and fused. Therefore, as per the Radiological Test, the age of the accused Takhat Singh is above 20 years on the date of occurrence but below 22 years. The said opinion is given as per Radiological report (Annexure/1). As regards other accused Takhat Singh, he opined that Epiphysis of elbow, wrist, knee and iliac crest appeared and fused. Therefore, as per the Radiological Test, the age of the accused Takhat Singh is above 20 years on the date of occurrence but below 22 years. [14] It is 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. Commenting on the evidentiary value of the opinion of a doctor, based on x-ray tests, as to the age of a person, in Ramdeo Chauhan alias Raj Nath v. State of Assam, 2001 5 SCC 714 ., R.P. Sethi, J., speaking for the majority in a three-Judge Bench, had observed that :- "....An X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate a test as to indicate the exact date of birth of the person concerned. Too much of reliance cannot be placed upon text books, on medical jurisprudence and toxicology while determining the age of an accused. In this vast country with varied latitudes, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The Medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence." [15] Moreover, Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules 2007 speaks that where the assessment of the age is not possible, 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 the juvenile by considering his/her age on lower side within the margin of one year and while passing orders in such cases 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. [16] Learned counsel for the petitioners on this point also refers to a decision of the Apex Court in the case of Jaya Mala Vs. Home Secretary, government of Jammu & Kashmir and others, 1982 SCC(Cri) 502 wherein it is held that in such cases the court can take judicial notice that margin of error in age ascertained by such examination is two years on either side. [17] Considering the above, the conclusion drawn by the trial Judge does not find well support by legal and factual aspects as came out to hold that the age of the petitioners were above eighteen years. [18] Consequently, by allowing the revision, the impugned order dated 12th January, 2012 is set aside and the trial Judge is directed that the case of the petitioners be tried as per provisions of Juvenile Justice (Care of Children) Act 2003 by the Juvenile Justice Board. Revision allowed.