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2014 DIGILAW 198 (MAD)

T. Lakshmi v. State

2014-01-28

P.N.PRAKASH, S.RAJESWARAN

body2014
JUDGMENT P.N. Prakash, J. 1. T. Lakshmi, the petitioner herein, is the sister of the detenu Senthil @ Senthil Kumar, who was convicted and sentenced to undergo life imprisonment for offence under Sections 302, 379 and 201 IPC in S.C.No.33/2006 on 04.11.2006 by the learned Additional Sessions Judge, Fast Track Court No.4, Coimbatore at Tiruppur, which was confirmed by this Court on 13.10.2008 in Crl.A.No.701/2008. 2. It is the case of the petitioner that her brother was a juvenile as on date of the occurrence, namely 05.07.2008 and therefore, he would be entitled to the benefits of the Juvenile Justice [Care and Protection of Children] Act, 2000 [hereinafter referred to as JJ Act]. In support of her plea, she produced the School records of her brother and this Court having been prima facie satisfied with the claim, by order dated 11.09.2013 referred the matter to the learned First Additional District Judge, Coimbatore to conduct inquiry and submit a report with regard to the age of the detenu. Accordingly, the learned First Additional District and Sessions Judge, Coimbatore issued notice to the detenu and to the State. We would like to stop here for a moment and briefly recapitulate the law relating to such a plea, in the light of a few recent judgments of the Supreme Court. 3. Section 7-A was introduced in the JJ Act by Central Act 33 of 2006 with effect from 22.08.2006, whereby, a procedure has been laid down whenever a claim of juvenility is raised before this Court. This provision was considered by a three Judge Bench of the Supreme Court in Abuzar Hussain @ Gulam vs. State of West Bengal [2012(4) MLJ (crl)334 SC] and it was held by the Apex Court that a claim of juvenility can be raised at any time even after the conviction and sentence of the accused has been confirmed by the highest Court. The Supreme Court said that, for the purpose of ordering an Inquiry under Section 7A, "The matter should be considered prima facie on the touchstone of preponderance of probability". The Supreme Court said that, for the purpose of ordering an Inquiry under Section 7A, "The matter should be considered prima facie on the touchstone of preponderance of probability". It has also cautioned that: "(vi) Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the Court at threshold whenever raised." In a subsequent judgment, Ashwant Kumar Saxena vs. State of Madhya Pradesh [ AIR 2013 SC 553 ], the Supreme Court considered the scope of Rule 12 of Juvenile Justice [Care and Protection of Children] Rules, 2007 and held that, the inquiry contemplated for determining the claim of juvenility should not be one as under the Code of Criminal Procedure, but should be one done within the parameters of Rule 12. Therefore, the broad principles enunciated by the Supreme Court in the aforesaid cases would apply as the law of land until reversed by the Apex Court or set at naught by the legislature. 4. The question that now falls for consideration before us is, whether Rule 12 of Juvenile Justice [Care and Protection of Children] Rules, 2007 would apply to the State of Tamil Nadu? The Rule making power is traceable to Section 68(1) of the JJ Act which, prior to amendment by Act 33 of 2006, read as under: "The State Government may, by notification in Official Gazette, make Rules to carryout the purposes of this Act." There was no proviso to Section 68(1) when the original Act was passed. The proviso to Section 68(1) was included by Section 26(1) of the JJ [Care and Protection of Children] Amendment Act, 2006 [Central Act 33 of 2006] with effect from 22.08.2006. The proviso to Section 68(1) was included by Section 26(1) of the JJ [Care and Protection of Children] Amendment Act, 2006 [Central Act 33 of 2006] with effect from 22.08.2006. The proviso runs as follows: "Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the State Government may make rules under this section, and where any such model rules have been framed in respect of any such matter, they shall apply to the State until the rules in respect of that matter is made by the State Government and while making any such rules, so far as it practicable, they conform to such model rules." The reason for including this proviso is not far to seek and it is clear from clause XI of the statement of objects and reasons for amendment Act 33 of 2006. Clause XI reads as under: "(xi) to ensure the applicability of model rules framed by the Central Government in the States/Union territories who have not made their own rules, till the rules are framed in this regard by the respective States/Union territories." 5. The JJ Act was passed by the Parliament in 2000 and State Governments were given power to frame Rules under Section 68 of the Act. As several State Governments had not framed any Rule, the Act stood only on paper and this necessitated the Parliament to empower the Central Government to frame model Rules which were made applicable until the State Government framed their own Rules. Therefore, the JJ [Care and Protection of Children] Rules, 2007 are model Rules framed by the Central Act in exercise of the powers conferred by the proviso to Section 68(1) of the JJ act and these Rules will not apply in a State where the State Government has already framed Rules or frames Rules subsequent to 2007. The situation that obtains in Tamil Nadu is, the State of Tamil Nadu has already framed Rules in exercise of the powers under Section 68 of the JJ Act and the said Rules are titled 'Tamil Nadu Juvenile Justice [Care and Protection of Children] Rules 2001 published in the Tamil Nadu Gazette vide S.R.O.(A)9(a) dated 17th January 2002. Parliament in its wisdom incorporated 7-A as stated earlier which paved the way for a person to raise the claim of juvenility at any time. Parliament in its wisdom incorporated 7-A as stated earlier which paved the way for a person to raise the claim of juvenility at any time. To give effect to Section 7-A, the model Rules framed by the Central Government in the year 2007, provided in Rule 12, a procedure to be followed for determination of age. The State of Tamil Nadu also did not lag behind and it has introduced Rule 8B to the Tamil Nadu JJ Rules 2001 by S.R.O. A-13/2012 with effect from 22.03.2012. Rules 8-B reads as under: "8-B. Procedure to be followed in determination of age.- (1) In every case concerning a juvenile in conflict with law or a child, the Criminal Court or the Board or as the case may be, the Committee referred to in rule 14 of these Rules shall determine the age of such juvenile in conflict with law or child within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board shall decide the juvenility or otherwise of the person produced before it, prima facie on the basis of physical appearance or documents, if available, and proceed according to law to send him to the Observation Home if he is a juvenile or to prison if he is not a juvenile. (3)(a) In case of any doubt or dispute with regard to the age of the juvenile/child, the Board/Court/Committee shall pass an order to obtain either- (i) the birth certificate issued by a corporation or a municipality or a panchayat; or (ii) the matriculation or equivalent certificates, if available; and in the absence; (iii) a certificate recording the date of birth from a school (other than a play school) attended by the child or juvenile. (b) In the absence of any of the certificates referred to in items (i) to (iii) of clause (a), medical opinion may be sought from the Resident Medical Officer of the Government Hospital in the District, who will declare the age of the juvenile or child, after requisite medical examination including ossification test, if necessary, subject to a margin of one year in case exact assessment of the age cannot be done. In such cases the Court or the Board for the reasons to be recorded by them, may, if considered necessary, give benefit to the juvenile by fixing his age on lower within the margin of one year and in the case of a child the Committee may, if considered necessary give benefit to a child by finding his age on the higher within the margin of one year. While passing orders in such cases the Court or Board or Committee shall after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record its finding in respect of the age of the juvenile or child: Provided that in case of any doubt on the genuineness of the certificate produced as proof of age, the Court or Board or Committee may direct the Probation Officer to make necessary enquiry and submit a report." Therefore, we hold that in the State of Tamil Nadu, the procedure adumbrated in Rule 8-B of the Tamil Nadu Rules requires to be followed in any inquiry relating to the determination of the claim of juvenility and not Rule 12 of the Model Rules framed by the Central Government. There is no great difference between Rule 12 of the Model Rules and Rule 8-B of the Tamil Nadu Rules, except a few differences, one of which is, under the Model Rules, Matriculation or equivalent certificate has been given primacy over Birth Certificate given by the Corporation or Municipality, whereas, under the Tamil Nadu Rules, the Birth Certificate issued by the Corporation or Municipality is given preference over other certificates. Apart from that, we also find that in the Tamil Nadu Rules, the enquiry authority can requisition services of the Probation Officer in case of any doubt on the genuineness of the Certificate produced as proof of age to conduct an inquiry, and submit a report. 6. To sum up, we hold that while conducting an inquiry to determine the claim of juvenility, the principles laid down in the Apex Court judgments should be borne in mind, but the procedure laid down in Rule 8-B of Tamil Nadu Juvenile Justice [Care and Protection of Children] Rules, 2001 should be followed in this State. 7. 6. To sum up, we hold that while conducting an inquiry to determine the claim of juvenility, the principles laid down in the Apex Court judgments should be borne in mind, but the procedure laid down in Rule 8-B of Tamil Nadu Juvenile Justice [Care and Protection of Children] Rules, 2001 should be followed in this State. 7. At this juncture, it may be necessary to record a note of caution for the guidance of Inquiry Courts under the J.J.Act while analysing the Birth Certificate issued by a Corporation or a Municipality or a Panchayat. Where the Inquiry Court under the J.J. Act has reason to believe that the very Birth Certificate is a forged or a fabricated document, it can take the services of the Police to verify its genuineness. If the certificate is a genuine document and the Birth has been registered with the concerned authority within a reasonable time from the date of the birth of the child, then, the Inquiry Authority under the J.J Act may not find it difficult to give a finding. Where the birth is registered by the Registrar of Births & Deaths based upon the order of a Magistrate under Section 13(3) of the Registration of Births and Deaths Act, 1969, then, the Inquiry Authority under the J.J. Act may have to probe further to find out whether the entire exercise to obtain a Birth Certificate by resorting to Section 13(3) of the said Act was an after thought to get benefits under the J.J. Act. An order of a Magistrate under Section 13(3) of the Act is not conclusive proof of the date of birth of a person as held in a series of judgments of this Court namely: Velu vs. Malathi [1992 LW Crl.16]; Harikrishnan vs. James Trinite [ 2001(3) MLJ 291 ]; and K. Muthulakshmi vs. Lakshmiammal & others [ 2011 (8) MLJ 893 ]. The order of the Magistrate under Section 13(3) of the Registration of Births & Deaths Act is neither a judgment nor a decree to be elevated to the status of conclusive proof or estoppel. As rightly held by this Court in Velu vs. Malathi [cited supra], the object of the Registration of Births & Deaths Act is only to make available population data for planning purposes. As rightly held by this Court in Velu vs. Malathi [cited supra], the object of the Registration of Births & Deaths Act is only to make available population data for planning purposes. When a dispute arises, an order under Section 13(3) of Act cannot be pressed into service for concluding the date of birth in question. Therefore, we hold that the Inquiry Authority under the J.J. Act is not bound by the Birth Certificate issued by the Corporation or Municipality or Panchayat based on an order under Section 13(3) of the Registration of Births and Deaths Act and in a given fact situation, the Inquiry Authority under the Juvenile Justice Act can refuse to place reliance on such certificates for good reasons. 8. In Ashwant Kumar's case cited supra, the Inquiry Court has ordered notice to the prosecution as well to the victim and has conducted inquiry. The Hon'ble Supreme Court has not found fault with this procedure, because victim is no more a non entity in our criminal justice system today. They may help the inquiry authority to expose any false claim. Emotional objections of victim to the claim of juvenility by the accused has no place in the inquiry under Rule 8-B of the Tamil Nadu Rules. If they produce satisfactory materials to show that the certificates produced in support of the claim of juvenility are bogus ones, then the Court cannot shut its eyes to it. We leave it to the discretion of inquiry authorities to take a decision in these fringe matters depending upon the facts and circumstances of each case. Nevertheless, we emphasize that the Inquiry authority should be satisfied with the genuineness of the documents adumbrated in Rule 8-B of the Tamil Nadu Rules lest that would lead to the exploitation of a beneficial legislation to the detriment of the victim. 9. Coming to the facts of the present case, the learned Additional District and Sessions Judge, Coimbatore has examined Lakshmi [P.W.1] the sister of the detenu and Mrs.Valarmathi, Headmistress, where the detenu studied and through them he has marked ten documents relating to the School admission Register of not only the detenu, but also his siblings. 9. Coming to the facts of the present case, the learned Additional District and Sessions Judge, Coimbatore has examined Lakshmi [P.W.1] the sister of the detenu and Mrs.Valarmathi, Headmistress, where the detenu studied and through them he has marked ten documents relating to the School admission Register of not only the detenu, but also his siblings. We find that the learned Judge after having been satisfied with the School records has proceeded to act under Rule 12 of the Central Rules by relying upon the judgment of the Apex Court in Ashwant Kumar's case. In normal circumstances, we would have remanded the matter to the Inquiry authority to first ascertain about the existence of any entry in the Municipal records relating to the birth of the detenu in terms of Rule 8-B of the Tamil Nadu Rules, because as stated earlier unlike Rule 12 of the Model Rules, Rule 8-B gives primacy to entry in the registration of date of birth by Municipality or Corporation. In this case, we find that both the parents of the detenu had died long before and these children got scattered thereafter. Therefore, there will be no useful purpose in remanding the matter for fresh inquiry. Therefore, we accept the finding of the learned First Additional District and Sessions Judge, Coimbatore that the date of birth of Senthil @ Senthil Kumar is 10.12.1986 and that as on 05.07.2002 [date of commission of offence], his age was 15 years 6 months 25 days. 10. The next question that we require to answer is that should we direct his release just like that from the prison? Under Section 3 of the JJ Act, 2000, the inquiry initiated against the juvenile who is in conflict with law can proceed even after he ceases to be a juvenile and in the event of the JJ Board holding that he has committed an offence, orders can be passed only under Section 15 of the Act. In a case of this nature where the detenu is now 26 years old, no order under Section 15(g) directing the juvenile to be sent to Special Home for a period of three months can be passed. However, other orders under Section 15 like counselling the detenu, directing him to perform community service etc can be passed by the JJ Board. However, other orders under Section 15 like counselling the detenu, directing him to perform community service etc can be passed by the JJ Board. As far as the State of Tamil Nadu is concerned, after the judgment of a learned single Judge of this Court in Idukkan vs. the Inspector of Police [2014 (4) CTC 718] the State of Tamil Nadu acted with alacrity and constituted JJ Boards in all the Districts in the State. The JJ Board members were also given special training by the Tamil Nadu State Judicial Academy as required by the Rules. In Ashwant Kumar's case cited supra, the Hon'ble Supreme Court after holding that the accused therein was a juvenile as on the date of commission of offence, quashed the sentence and sent the case records to the concerned JJ Board for passing suitable orders. We follow the same and we hereby quash the sentence imposed on Senthil @ Senthil Kumar in S.C.No.33 of 2006 dated 04.11.2006 as confirmed by this Court in Crl.A.No.701 of 2008. We direct that the detenu Senthil @ Senthil Kumar be produced before JJ Board, Coimbatore for passing the appropriate orders, immediately. Accordingly, this Habeas Corpus Petition is disposed of.