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2012 DIGILAW 693 (HP)

Naushad Ali @ Nishu v. State of Himachal Pradesh

2012-10-08

KULDIP SINGH

body2012
Judgment Kuldip Singh, Judge 1. This petition under Section 482 Cr.P.C. has been filed for quashing order dated 13.8.2012 passed by learned Judicial Magistrate 1st Class, (1), Sundernagar in bail application No. 15-XXII/2012 State of H.P. vs. Naushad Ali alias Nishu for handing over the custody of the petitioner to his parents or to Juvenile Justice Board and a direction to investigate the matter in accordance with the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ‘Act’). 2. The facts in brief as per petitioner are that petitioner was born in village Arki, District Solan on 11.8.1994. The petitioner studied in Government Elementary School, Raj Nagar, Nangal upto 5th class. On 3.3.2012 FIR No. 27 under Sections 363, 366 IPC was registered against the petitioner at Police Station, Sundernagar and subsequently Section 376 IPC was also added. It has been alleged that petitioner has kidnapped minor daughter of Shashi Mohamed. The petitioner and daughter of Shashi Mohamed subsequently got married. The petitioner and prosecutrix filed petition No. Cr.M.M. No. 7630 of 2012 under Section 482 Cr.P.C. before the Punjab and Haryana High Court for protection of life and liberty which was subsequently dismissed as withdrawn as they no more required police protection. 3. The petitioner was arrested on 8.8.2012 from Nangal. The petitioner and prosecutrix in the case filed by them has shown their age as 21 years. It has been stated that at the time of arrest, the investigating officer was told by the petitioner that petitioner and prosecutrix were minors, but the investigating officer arrested the petitioner like the ordinary accused without taking into consideration the Act. 4. On 13.8.2012 the petitioner was produced before the learned Judicial Magistrate 1st Class, Sundernagar by respondent No.3 with the application for remand. On behalf of the petitioner, a submission was made before the learned Magistrate that the petitioner may be sent to Juvenile home as his date of birth is 11.8.1994 as the offence was allegedly committed by him on 3.3.2012. At the time of commission of alleged offence, the petitioner was less than 18 years. The petitioner attained 18 years age on 11.8.2012. It has been stated that the certificate of age of petitioner was also tendered before the learned Magistrate on 13.8.2012. At the time of commission of alleged offence, the petitioner was less than 18 years. The petitioner attained 18 years age on 11.8.2012. It has been stated that the certificate of age of petitioner was also tendered before the learned Magistrate on 13.8.2012. The learned Magistrate instead of sending the petitioner to Juvenile Board for conducting further inquiry regarding the age of the petitioner remanded the petitioner to judicial custody. 5. The order dated 13.8.2012 has been assailed in the petition on the grounds that the judicial remand of the petitioner by the Magistrate is in violation of the Act, the impugned order is wrong, illegal and without jurisdiction. The petitioner and his parents informed the investigating officer that petitioner was minor but investigation in the case has not been conducted taking into consideration the Act. The Section 3 of the Act governs the factum of the age of the petitioner irrespective of the fact now, the petitioner has attained 18 years of age on 11.8.2012. The Magistrate has not conducted inquiry in terms of Section 7A of the Act. 6. The reply has been filed. It has been stated that the petitioner was arrested on 8.8.2012. The petitioner during investigation disclosed his age 21 years. The petitioner during medical examination disclosed his age 21 years before the Medical Officer. In the Nikah Nama the petitioner has mentioned his age 21 years. However, in the birth certificate dated 1.9.2012 issued by the Registrar, Births and Deaths, Nagar Panchayat, Arki, the date of birth of the petitioner has been written 11.8.1994. The investigating officer got verified the certificate from the Registrar and found it to be correct as per the original record. The petitioner as well as his parents did not produce any document regarding the date of birth or age proof of the petitioner. 7. It has come in the investigation that petitioner got married with prosecutrix at Jalandhar on 8.3.2012 and he disclosed his age 21 years. The petitioner was arrested on 8.8.2012 and prosecutrix was brought to Sundernagar. The prosecutrix refused to undergo medical examination. The petitioner was produced before the learned Judicial Magistrate 1st Class, Court No.1, Sundernagar with a prayer for judicial remand. The learned counsel for the petitioner produced photocopies of Adhar Card and birth certificate issued by the Nagar Panchayat. The learned Magistrate rejected the plea of juvenility of the petitioner. The prosecutrix refused to undergo medical examination. The petitioner was produced before the learned Judicial Magistrate 1st Class, Court No.1, Sundernagar with a prayer for judicial remand. The learned counsel for the petitioner produced photocopies of Adhar Card and birth certificate issued by the Nagar Panchayat. The learned Magistrate rejected the plea of juvenility of the petitioner. It has been denied that the order of judicial remand of the learned Magistrate is wrong, illegal. In the reply the submission has been made for passing appropriate order. 8. Heard. The Section 2 (k) of the Act defines “juvenile” or “child” means a juvenile who has not completed eighteenth year of age. The Section 7A of the Act is as follows:- “(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 state, 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 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.” 9. The Rule 11 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short ‘Rules’) provides as soon as a juvenile alleged to be in conflict with law is apprehended by the police, the concerned Police officer shall inform: the concerned designated Juvenile or the Child Welfare Officer, parents or guardian of the juvenile, the concerned probation officer. The Rule 11 further provides how the case of the juvenile or child is to be dealt with. The Rule 11 further provides how the case of the juvenile or child is to be dealt with. The Rule 12 provides procedure for determination of age of child or a juvenile in conflict with law. The Rule 12 is as follows:- “(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 dateof 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) 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.” 10. The learned counsel for the petitioner has relied Shah Nawaz vs. State of U.P. and another 2011 (3) Shim. L.C. 185 (SC). The learned counsel for the petitioner has relied Shah Nawaz vs. State of U.P. and another 2011 (3) Shim. L.C. 185 (SC). The Supreme Court has held that Rule 12 of the Rules categorically envisages that the medical opinion from the medical board should be sought only when the matriculation certificate or school certificate or any birth certificate issued by a corporation or by any Panchayat or municipality is not available. The Rule 12 describes four categories of evidence, which provides preference is to be given to school certificate over the medical report. The Supreme Court in that case declared the appellant to be juvenile on the date of commission of offence and ordered that he may be proceeded in accordance with law. 11. It has been submitted on behalf of the petitioner that the police after arrest of the petitioner on 8.8.2012 did not proceed in accordance with Act and Rules. The learned Magistrate in the order dated 13.8.2012 has observed that the court was very much competent to determine the age of juvenility of the petitioner. The learned Magistrate has also observed that the counsel for the petitioner was given an opportunity for adducing the evidence to establish the juvenility of the petitioner but only photocopies of Adhar Card and birth certificate of the petitioner were produced. It was stated that no other evidence was to be led. The learned Magistrate did not accept the photocopies of Adhar Card and birth certificate of the petitioner for the proof of age of the petitioner and the plea of the juvenility of the petitioner was rejected. The petitioner was remanded to judicial custody. 12. The Section 7A of the Act mandates 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. It emerges from the order dated 13.8.2012 that the claim of juvenility of the petitioner was raised before the learned Magistrate, even photocopies of Adhar Card and birth certificate of the petitioner were submitted in support of the juvenility of the petitioner. The learned Magistrate has not recorded a finding in the impugned order that Adhar Card and birth certificate do not ex-facie support the juvenility of the petitioner. The learned Magistrate has not recorded a finding in the impugned order that Adhar Card and birth certificate do not ex-facie support the juvenility of the petitioner. He took technical view and observed that since only photocopies of Adhar Card and birth certificate have been produced which cannot be accepted in evidence. 13. The issue before the learned Magistrate was of juvenility of the petitioner, he should have given sufficient time to the counsel for the petitioner to give second thought to his stand that he does not want to lead any other evidence in support of the juvenility of the petitioner except photocopies of Adhar Card and birth certificate of the petitioner. The learned Magistrate has not considered whether the statement of counsel for the petitioner that he does not want to lead any other evidence except photocopies of Adhar Card and birth certificate of the petitioner was in the interest of the petitioner. The learned Magistrate should have considered and protected the interest of the petitioner, who claimed his juvenility, moreso when no finding was recorded by learned Magistrate that prima-facie photocopies of Adhar card and birth certificate do not support the case of the petitioner that he was juvenile on 3.3.2012. The respondents in the reply have stated that birth certificate issued by the Registrar, Births and Deaths, Nagar Panchayat, Arki showing the date of birth of the petitioner 11.8.1994 is correct. Thus, on the date of commission of offence on 3.3.2012, the petitioner was juvenile. 14. In view of above, the petition is allowed, the order dated 13.8.2012 passed by learned Judicial Magistrate 1st Class, Court No.(1), Sundernagar rejecting the claim of the petitioner of his juvenility is set-aside. The petitioner is declared to be juvenile on the date of commission of offence, he may be proceeded in accordance with law. The record of the trial Court be sent back immediately. The pending application, if any, also stands disposed of.