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Madhya Pradesh High Court · body

2014 DIGILAW 1447 (MP)

Rakesh v. State of M. P.

2014-11-10

ALOK VERMA

body2014
ORDER 1. This revision under section 397 read with section 401 of CrPC is directed against the order dated 8.1.2014 passed by Additional Sessions Judge, Mandsaur in Sessions Trial No.101/2010, by which, the learned Additional Sessions Judge decided juvenility of the present petitioners Rakesh, Himmat and Vinod and gave a finding that the present petitioners were more than 18 years of age on the date of occurrence which was 5.3.2010. 2. The facts giving rise to this application are that the learned Special Judge by the impugned order decided the application filed by the present petitioners and while deciding the application, the learned ASJ gave an inference that they were above 18 years of age at the time of incident. 3. The present revision is filed on the ground that the present petitioner is entitled to the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 and the procedure is led down in rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007. According to the counsel for the petitioner, age of the petitioner was not computed according to the provision of Rule 12 of the rule and the procedure led down by the Rules was not followed by the Court. The learned Additional Sessions Judge while deciding the juvenility of the present petitioners has taken into consideration the fact that the present petitioners failed to examine the parents or guardian who got them admitted in the educational institution to ensure that, correct date of birth was intimated to school and correct date of birth was recorded in the records of the school. Learned ASJ has also taken into consideration the fact that in the arrest memo and memorandum prepared under section 27 of the Evidence Act, they intimated to the police that age of the petitioner Rakesh was 18 years and that of petitioners Himmat and Vinod was 22 years. Learned ASJ also observed that no suggestion was put to witness Ajay Mishra who appeared on behalf of the State that they never mentioned their age while arrest memo and memorandum under section 27 of the Evidence Act were prepared. On the basis of these facts, learned ASJ doubted the correctness of the records of the school and decided against the present petitioners. 4. On the basis of these facts, learned ASJ doubted the correctness of the records of the school and decided against the present petitioners. 4. Learned counsel for the petitioner has placed reliance on the judgment of the Hon’ble Supreme Court delivered in the case of Ashwani Kumar Saxena v. State of M.P. reported in 2013(1) JLJ 69 = (2012) 9 SCC 750 . In this case, it was held that the only documents enumerated in Rule 12 of the Juvenile Justice (Case and Protection of Children) Rules, 2007 were taken into consideration. No extraneous consideration can form the basis of inference drawn in respect of age of the accused. 5. The jurisdiction relating to assessment of age of juvenile is enshrined in section of Juvenile Justice (Care and Protection of Children) Act, 2000 and the procedure is led down in rule 12 of Juvenile Justice (Care and Protection of Children ) Rules, 2007. The relevant portion of rule 12 (3)(1) may be reproduced as under : 12. Procedure to be followed in determination of Age - (1) ......................... (2) ......................... (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, I 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, I 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 (1)(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. ” 6. It is apparent from the impugned order that the learned trial Court did not place reliance on the record of the school, the present petitioner attended and instead of that, the trial Court placed reliance on the other factors like non-examination of parents or guardian who got the present petitioners admitted in the school and also the age mentioned in the memo of arrest and memorandum prepared under section 27 of the Evidence Act. In the case of Ashwani Kumar Saxena (supra), the Hon’ble Supreme Court observed in para 34 of the judgment that 34 Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination. 7. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination. 7. In the present case the school records, the petitioners were attended, were available and accordingly, it is clear that the learned Additional Sessions Judge did not follow the procedure as laid down by rule 12 of the Rules, 2007. 8. As such, I do not find that the learned trial Judge followed the procedure led down under section 49 of Juvenile Justice (Care and Protection of Children) Act, 2000 and rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007. 9. On the aforesaid ground, this revision is allowed. The impugned order passed by the learned trial Judge is set aside. The matter is remanded back to the learned trial Judge with a direction that the trial Judge should take necessary evidence as provided for of section 49 of Juvenile Justice (Care and Protection of Children) Act, 2000 and rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 and after following the correct procedure to determine the age of the present applicant. R. R. Bhatnagar for petitioner; Ms. Mamta Shandilya, Panel Lawyer for respondent/State.