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Madhya Pradesh High Court · body

2012 DIGILAW 762 (MP)

Ashfaq v. State

2012-07-27

R.C.MISHRA

body2012
Judgment With consent, matter is finally heard. 2. This is a petition, under Section 482, of the Code of Criminal Procedure (for short "the Code"). Petitioner is aggrieved by the order dated 14-2-12 passed by Shri D.R. Dubela, JMFC, Begumganj in R.T. No. 189/08, closing his right to adduce evidence in support of his claim of juvenility. In that case, cognizance for the offences punishable under Sections 363, 366 and 376 of the IPC, allegedly committed by the petitioner on 15-7-2007, was taken upon the, charge-sheet submitted by the SHO of P.S. Begumganj after due investigation into the FIR lodged by the prosecutrix. 3. The petitioner, who was shown as absconding in the charge-sheet submitted on 25-12-07, could ultimately be apprehended on 5-4-11. He raised the plea of juvenility before the Magistrate by making an application on 25-1-12. Simultaneously, he moved another application for subjecting him to ossification test by Dr. R.S. Kushwaha, the radiologist in the Govt. Hospital at Raisen. Vide order passed on the same day, learned Magistrate directed petitioner to get the proposed test conducted on himself at his own costs and also to lead evidence on 14-2-12 by examining his mother in support of the assertion that he was a juvenile within the meaning of Section 2 (k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 on the date of commission of the offences. 4. However, on 14-2-12, he moved another application for issuance of necessary direction to the Radiologist who, according to him, had refused to carry out the test. This application was also allowed and it was ordered that on payment of process fee, letter be issued to the Radiologist for doing the needful. Thereafter, observing that the petitioner had neither paid the process fee nor led any evidence in support of his claim, learned Magistrate proceeded to pass the order under challenge. 5. For a ready reference, relevant provisions of the Act and the corresponding Rules made thereunder may be reproduced as under :- "49. Thereafter, observing that the petitioner had neither paid the process fee nor led any evidence in support of his claim, learned Magistrate proceeded to pass the order under challenge. 5. For a ready reference, relevant provisions of the Act and the corresponding Rules made thereunder may be reproduced as under :- "49. Presumption and determination of age.- (1) Where is 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 a 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 person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person. 7-A. Procedure to be followed when claim of juvenility is raised before any Court (Inserted by Act 33 of 2006, Section 8, w.e.f. 22-8-2006).- (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 enquiry, 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 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 a juvenile on the date of submission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a Court shall be deemed to have no effect. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007:- "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 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 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 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." (Emphasis supplied) 6. As explained by the Apex Court in Babloo Pasi Vs. State of Jharkhand, AIR 2009 SC 314 , even opinion of Medical Board based on radiological examination per se is not conclusive proof of age. In that case, the following observations made by the Court in Bhola Bhagat Vs. As explained by the Apex Court in Babloo Pasi Vs. State of Jharkhand, AIR 2009 SC 314 , even opinion of Medical Board based on radiological examination per se is not conclusive proof of age. In that case, the following observations made by the Court in Bhola Bhagat Vs. State of Bihar, (1997) 8 SCC 720 , while explaining the scope and purpose of Section 32 of the Juvenile Justice Act, 1986, which is almost pan' materia with Section 49 of the Act (supra), were quoted with approval :- "....... when a plea is raised on behalf of an accused that he was a "child" within the meaning of the definition of the expression under the Act, it becomes obligatory for the Court, in case it entertains any doubt about the age as claimed by the accused, to hold an inquiry itself for determination of the question of age of the accused or cause an enquiry to be held and seek a report regarding the same, if necessary, by asking the parties to lead evidence in that regard. Keeping in view the beneficial nature of the socially-oriented Legislation, it is an obligation of the Court where such a plea is raised to examine that plea with care and it cannot fold its hands and without returning a positive finding regarding that plea, deny the benefit of the provisions to an accused. The Court must hold an enquiry and return a finding regarding the age, one way or the other." (Underlined by me) 1. Further, the Court also highlighted the note of caution sounded in Jitendra Ram alias Jitu Vs. State of Jharkhand, (2006) 9 SCC 428 , that the above stated observations in Bhola Bhagat's case (supra), 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 and each case has to be considered on the basis of the materials brought on record. 8. It is well settled that the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt, with, and so forth. For this, the following observations made by the Supreme Court in Union of India Vs. 8. It is well settled that the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt, with, and so forth. For this, the following observations made by the Supreme Court in Union of India Vs. P.K. Roy, AIR 1968 SC 850 , may usefully be quoted thus :- "The extent and application of the doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the Administrative Authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case." 9. Adverting to the facts of the matter, it may be observed that the petitioner had been able to remain out of the clutches of law during investigation. In such a situation, opportunity ought to have been afforded to the Investigating Agency to ascertain as to whether (i) any certificate concerning birth of the petitioner was issued by any Corporation/Municipal Authority/Panchayat (ii) his date of birth has been recorded in matriculation certificate/equivalent certificates or in the record of any school AND as contemplated in Rule 12 (supra), the opinion of the Medical Board (and not of a particular doctor) as to the age of the petitioner on the date of offences allegedly committed by him would be sought only in case of non-availability of any one of the aforementioned documents. 10. Accordingly, not only the impugned order dated 14-2-12.but also the previous order passed on 25-1-12 are hereby set aside. The Magistrate is directed to determine the question of age of the petitioner, at the relevant point of time, in accordance with Rule 12 (above), after making an inquiry afresh, within a period of 30 days from the date of receipt/production of certified copy of this order, by affording adequate opportunity to both the parties to lead evidence.