Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 1731 (RAJ)

Narain Singh v. State of Rajasthan

2014-10-29

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant misc. petition has been preferred by the petitioner Narain Singh assailing the order dated 10.7.2014 passed by the learned Chief Judicial Magistrate, Jalore in connection with F.I.R. No. 204/2014 registered at P.S. Jalore for the offences under section 363 and 366 I.P.C. whereby the victim Mst. Rinka Kanwar was directed to be sent to the Nari Niketan, Jodhpur. 2. Briefly stated the facts of the case are that the complainant Bhanwar Singh filed the first information report No. 204/2014 at the Police Station Jalore alleging that his minor daughter aged 15 years had been kidnapped by Narain Singh, present petitioner. The girl was recorded and examined during the course of investigation under section 164 Cr.P.C. and stated that she was 19 years of age and had married Narain Singh of her own free will. The I.O. submitted documentary evidence before the trial court by way of the school record of the girl, as per which her date of birth was 16.8.2000 meaning thereby that the girl was just 14 years of age. Accordingly, the trial court held that the victim was a child within the meaning of Juvenile Justice Act. She refused to go with her father and insisted that she wanted to go with the present petitioner. The trial court held that girl was minor and was not desirous of going with her parents. Thereafter by order dated 10.7.2014 the trial court directed that the girl be sent to Nari Niketan. The petitioner has assailed the order passed by the trial court by way of the instant misc. petition under section 482 Cr.P.C. 3. As a matter of fact the direction should have been to send her to Balika Grah. 4. Counsel for the petitioner submits that as per the medical evidence and as per the statement of the girl herself, she is above 18 years, and therefore, she should have been permitted to accompany the present petitioner as she is validly married to him. 5. Learned Public Prosecutor vehemently opposed the submissions advanced by the petitioner's counsel and supported the order impugned. 6. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the order impugned and the relevant provisions of Juvenile Justice Act and the Rules framed thereunder. 7. 5. Learned Public Prosecutor vehemently opposed the submissions advanced by the petitioner's counsel and supported the order impugned. 6. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the order impugned and the relevant provisions of Juvenile Justice Act and the Rules framed thereunder. 7. Rule 12 of the Juvenile Justice Rules lays down the modes for deciding the age of a juvenile in case a dispute arises. The sequence to be adopted for deciding the minor's age as set out in the Rules is enumerated herein below:- "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. 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 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." 8. From sequence set out in sub-clause(3), it is evident that the precedence has to be given to the date of birth mentioned in the school record for deciding the age of a juvenile in conflict with law or child in need of care and protection. From sequence set out in sub-clause(3), it is evident that the precedence has to be given to the date of birth mentioned in the school record for deciding the age of a juvenile in conflict with law or child in need of care and protection. Hon'ble Apex Court had the occasion to consider an identical issue in the case of Jarnail Singh v. State of Haryana reported in (2013) 7 SCC-263 and it was held as below:- "20. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to herein above reads as under: 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 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 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. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in Sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12 (3) postulates the determination of age of the concerned child, on the basis of medical opinion. 21. .......... Accordingly, we hereby endorse the conclusions recorded by the High Court, that even if the prosecutrix VW-PW6 had accompanied the Accused-Appellant Jarnail Singh of her own free will, and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor." 9. In view of the aforesaid discussion, this Court is of the opinion that the learned trial court was justified in holding that the accused petitioner was not entitled to receive the custody of the girl as she was herself a victim and a child in need and protection within the meaning of the Juvenile Justice Act. 10. The misc. petition being devoid of any merit is rejected. 10. The misc. petition being devoid of any merit is rejected. If at all the petitioner is inclined to raise a dispute regarding the girl not being juvenile, he is at liberty to move an appropriate application before the Juvenile Justice Board for having her age decided as per law.Petition dismissed. *******