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2013 DIGILAW 1129 (MP)

Mahendra s/o Hazarilal Dhakad v. State Of M. P.

2013-09-17

BRIJ KISHORE DUBE

body2013
ORDER : This petition under section 482 of Criminal Procedure Code is preferred for quashing the order dated 4-7-2013 passed by the Special Judge (under MPDVPK Act), Shivpuri in Special Sessions Trial No. 52/2012 whereby an application under section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'the Act') filed by the petitioner herein/accused has been dismissed holding that the petitioner was not a juvenile under the Act. 2. The background facts of the case, in brief, are that one Pramod Dhakad was found missing and, therefore, a report of missing person was lodged by his father, Raghuveer Singh on 15-6-2012. During the inquiry, the dead body of Pramod was found, then an FIR at Crime No. 408/2012 was registered at Misc. Criminal Case No. 6585 of 2013 Police Station Kotwali, Shivpuri for the offence under sections 302, 364 and 201/34 of Indian Penal Code. After due investigation, a charge-sheet has been filed against the petitioner herein, Mahendra Dhakad and one Pankaj Dhakad for the offence punishable under sections 302, 364, 201/34 of Indian Penal Code and 11/13 of MPDVPK Act before the Special Judge (under MPDVPK Act), Shivpuri. The Special Judge on the basis of the material available on record framed the charge under section 302/34, 364/34, 201/34 of Indian Penal Code read with 11/13 of MPDVPK Act against the petitioner herein. During the trial, an application under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short 'the Rules) was submitted by the petitioner herein on 25-7-2012 stating that at the time of the incident i.e., on 15-6-2012, the petitioner was 17 years 11 months and 20 days of age, therefore, he be treated as a juvenile and the case be sent to the Juvenile Justice Board. After getting the matter inquired, it was held that the petitioner herein was above 18 years of age and not a juvenile and, therefore, the application filed by the petitioner herein was dismissed. Hence, this petition is preferred by the petitioner. 3. The learned counsel for the petitioner submits that the petitioner is a juvenile in the eye of law and the learned Court below committed an error in making an observation regarding age of the petitioner. Hence, this petition is preferred by the petitioner. 3. The learned counsel for the petitioner submits that the petitioner is a juvenile in the eye of law and the learned Court below committed an error in making an observation regarding age of the petitioner. The age of the petitioner has to be computed according to the provisions of Rule 12 of the Rules, which was not done by the Court below. In support of his contention, reliance is placed upon a decision of the Apex Court in the case of Ashwani Kumar Saxena vs. State of M.P., 2013(1) MPHT 109 (SC) and prayed that the petitioner may be declared to be a juvenile and his matter may be directed to be tried by the Juvenile Justice Board. 4. In response, learned Panel Lawyer submitted that the learned Special Judge, Shivpuri discussed the entire evidence in the impugned order and found that at the time of admission in the School, the date of birth of the petitioner has been recorded as 1-7-1993 which has been proved by Omprakash Verma (P.W.3), Assistant Teacher, therefore, the petitioner is above 18 years of age at the time of the incident. 5. I have considered the rival contentions of the learned counsel for the parties and perused the record. 6. Before proceeding further, it would be useful to quote the provisions of section 7-A of the Act and Rule 12 of the Rules, which reads as under :- "Section 7A. Procedure to be followed when claim of juvenility is raised before any Court. 6. Before proceeding further, it would be useful to quote the provisions of section 7-A of the Act and Rule 12 of the Rules, which reads as under :- "Section 7A. Procedure to be followed when claim of juvenility is raised before any Court. - (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 stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in his 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 order, and the sentence if any, passed by a Court shall be deemed to have no effect. 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 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. (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, 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 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 off 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." 7. In the aforesaid rule, exclusion of next procedure is given, if document presented by the accused refers to the previous provision of sub-rule (3) of Rule 12 of the Rules. 8. The Apex Court in the case of Ashwani Kumar Saxena (supra) while considering the scope of "determination of age", observed as under :- "34. Age determination inquiry" contemplated under section 7-A of the Act read with Rule 12 of the 2007 Rules enables the Court to seek evidence and in that process, the Court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the Court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the Court need obtain the birth certificate given by a Corporation or a Municipal Authority or a Panchayat (not an affidavit but certificates or documents). Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the Court need obtain the birth certificate given by a Corporation or a Municipal Authority or a Panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the Court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year." 9. In the case of Shah Nawaz vs. State of U.P. and anr., 2011 AIR SCW 4632, the Hon'ble Apex Court referred to the procedure of computation of age as mentioned in Rule 12 of the Rules and held that Rule 12 describes four categories of the evidence which have been provided in which preference has been given to the school certificate over the medical report. The medical opinion from the Medical Board should be sought only when the matriculation certificate or school certificate or any birth certificate issued by the Corporation or by any Panchayat or municipality is not available. 10. In the present case, admittedly the alleged offence was committed on 15-6-2012. 11. From a perusal of the record, it is transpired that Primary School Certificate, Exhibit P-2 (District Primary Board Examination, 2004) in which the date of birth of the petitioner was mentioned to be 25-6-1994, matriculation certificate (Exhibit P-3) which is of the year 2007 also shows the date of birth 25-6-1994 and the High School Certificate Examination of the year 2009 (Exhibit P-4) shows that the date of birth of the petitioner to be 25-6-1994. Apart from that, the birth certificate (Exhibit P-6) issued by the Registrar, Death and Birth Registration, Gram Panchayat, Satbai under Registration of Births and Deaths Act, 1969 also mentioned the date of birth of the petitioner to be 25-6-1994. 12. Apart from that, the birth certificate (Exhibit P-6) issued by the Registrar, Death and Birth Registration, Gram Panchayat, Satbai under Registration of Births and Deaths Act, 1969 also mentioned the date of birth of the petitioner to be 25-6-1994. 12. When the matriculation certificate was available, then according to the provisions of Rule 12(3)(b), no other evidence is required to be considered for computation of the age of the petitioner and, therefore, the evidence of Omprakash Verma, Assistant Teacher (P.W.3) proving the date of birth of the petitioner as 1-7-1993 as recorded in the admission register loses its significance and nothing more could be seen at the time of assessment of the age of the juvenile. 13. In view of the aforesaid, the petitioner appears to be below 18 years of age at the time of the incident. The learned Court below has committed an error of law in the matter of assessment of the age of the petitioner, hence, it is a fit case in which interference is required on the side of this Court by invoking the inherent powers under section 482 of Criminal Procedure Code. 14. On the basis of aforesaid discussion, the petition filed by the petitioner under section 482 of Criminal Procedure Code is allowed. The order dated 4-7-2013 passed by the Special Judge (under MPDVPK Act), Shivpuri is hereby set-aside. It is declared that the petitioner, Mahendra Dhakad was of 17 years 11 months and 20 days at the time of incident i.e., on 15-6-2012, therefore, he was juvenile under the Act. It is directed that his name may be removed from the trial which is pending before the Special Judge, Shivpuri. The Station House Officer, Police Station, Kotwali, District Shivpuri is directed to submit the charge-sheet against the petitioner before the concerned Juvenile Justice Board. The Special Judge shall fix a date of appearance of the petitioner before the Juvenile Justice Board. 15. With the aforesaid, this petition stands allowed and disposed of. 16. A copy of this order be sent to the trial Court for necessary compliance.