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Madhya Pradesh High Court · body

2015 DIGILAW 1045 (MP)

Harsewak s/o Jagdish Rajpoot v. State Of M. P.

2015-09-30

RAJENDRA MAHAJAN

body2015
ORDER : The petitioner has preferred this petition under section 482 of the Cr.P.C. challenging the correctness and the legality of the order dated 9-2-2015 passed by the Additional Sessions Judge, Bijawar District Chhatarpur in Criminal Revision No. 07/2015, affirming the order dated 16-10-2014 passed by the Judicial Magistrate First Class, Bijawar in the remand proceedings of Crime No. 134/2014 of Police Station, Gulganj District Chhatarpur, rejecting his revision. Vide order dated 16-10-2014, it is held by the learned JMFC that the petitioner was not a juvenile in the eye of law on the date of the crime. 2. The essential facts for just and proper adjudication of the petition are given below :— (2.1). The police of police station, Gulganj have registered Crime No. 134/2014 against the petitioner for the offences punishable under sections 457, 306, 376 of the Indian Penal Code and 4 of the Protection of Children from the Sexual Offences Act, 2012. (2.2) On 7-10-2014, the petitioner had submitted an application in the Court of Judicial Magistrate First Class, Bijawar, praying that his date of birth is 5-5-1997 as per his academic records and the date of alleged incident is 15-9-2014. Thus, his age was 17 years, 4 months and 10 days on the date of incident. However, the police have recorded his age over 19 years in the F.I.R. on the basis of a false document of his age. Since he is below the age of 18 years on the date of crime, he is a juvenile in conflict with law. Therefore, he be declared juvenile; and he be released on bail during the period of his age determining enquiry. (2.3) Upon the aforesaid application, the learned JMFC has fixed the case for determination of age of the petitioner. Upon the perusal of the proceedings, it appears that the learned JMFC has held the inquiry under section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short “the Act”) and the Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short “the Rules”). In the course of inquiry, the petitioner has examined Manpyare (AW-1) and Pandit Chhotelal (AW-2) and marked documents as Ex.A-1 to A-10 whereas the respondent has examined Mahesh Chandra (NAW-1) and marked a document as Ex. NA-1. In the course of inquiry, the petitioner has examined Manpyare (AW-1) and Pandit Chhotelal (AW-2) and marked documents as Ex.A-1 to A-10 whereas the respondent has examined Mahesh Chandra (NAW-1) and marked a document as Ex. NA-1. (2.4) On scrutiny of oral and documentary evidence, the learned JMFC has held in his order dated 16-10-2014 that the correct date of birth of the petitioner is 7-4-1995. Hence, he was not juvenile on the incident as his age was then 19 years, 5 months and 8 days. (2.5) Feeling aggrieved by the aforesaid order, the petitioner has filed Criminal Revision No. 07/2015, which is decided by the Additional Sessions Judge Bijawar, vide the impugned order dated 9-2-2015. The learned ASJ has upheld the order dated 16-10-2014 passed by the learned JMFC dismissing the revision. (2.6) Hence, this petition. 3. Learned counsel for the petitioner has submitted that the petitioner is a resident of village Angour. He has filed a certified copy of his admission form when he was admitted in 1st standard of the Azad Bhagat Singh Middle School Angour in the academic year 2003-2004. He has also filed mark-sheets from 1st standard to his high school i.e. 10th standard. In the aforesaid documents his date of birth is constantly recorded as 5-5-1997. As per the Rule 12(3)(a)(i), it was mandatory for the learned JMFC to decide the petitioner date of birth on the basis of his High School Certificate Examination (10 + 2) 2013 mark sheet-cum-Certificate which was issued by the Board of Secondary Education M.P. Bhopal, an instrumentality of the Govt. of M. P. However, the learned JMFC had not decided the date of birth of the petitioner in accordance of the aforestated Rule instead he decided the date of birth of the petitioner on an entry of the admission register of the Govt. Boys Primary School, Angour. Hence, the order of the learned JMFC dated 16-10-2014 is prima facie incorrect and illegal as it has been passed in flagrant violation of the aforesaid Rule. It is also submitted by him that it has been argued at the time of hearing on the revision before the learned ASJ that the date of birth of the petitioner was not decided by the learned JMFC following the procedure laid down in the Rule 12(3)(a)(i). It is also submitted by him that it has been argued at the time of hearing on the revision before the learned ASJ that the date of birth of the petitioner was not decided by the learned JMFC following the procedure laid down in the Rule 12(3)(a)(i). But the learned ASJ has not considered the said contention in right perspective and upheld the order of the learned JMFC. Hence, the impugned order suffers from legal infirmities. It is prayed by him that under the circumstances, both the orders dated 16-10-2014 and 9-2-2015 be set aside and this Court should decide juvenility of the petitioner on the date of crime as per the provisions of Rule 12(3). 4. On the other hand, learned Panel Lawyer has supported the impugned order. 5. I have anxiously considered the rival submissions and perused the entire records. 6. The seminal question that arises for consideration is whether the Courts below have rightly decided the date of birth of the petitioner as 7-4-1995, on account of which he was not juvenile on the date of crime? 7. Clause 4 of the section 1 of the Act reads as under :— “Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under such other law.” On plain reading of the clause, it is crystal clear that in respect of a juvenile who is in conflict with law the provisions of the Act regarding detention, prosecution, penalty or sentence shall be applicable overriding any provisions contained in any other law. “The any other law” means General Law, Special Law or Local Law. Consequently, the Rules 2007 made under the Act will also be applicable in toto. 8. The definitions of juvenile or child and juvenile in conflict with law are given 2(k) (l) of the Act respectively, which are relevant because of the controversy involved in the case. Hence, they are reproduced below :— Juvenile or Child means a person who has not completed eighteen years of age. Juvenile in conflict with law means a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence. 9. Hence, they are reproduced below :— Juvenile or Child means a person who has not completed eighteen years of age. Juvenile in conflict with law means a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence. 9. Upon the conjoint reading of both the aforesaid words/phrases, it is evident that the age of the juvenile who is in conflict with law shall be decided in respect of the date of commission of the offence. 10. In Ashwani Kumar Saxena vs. State of M.P., AIR 2013 SC 553 , the Supreme Court has defined the word “inquiry” contemplated in section 7-A of the Act in para 32 of its decision as the procedure laid down in the Rule 12(3). Therefore, it is mandatory for the Court to decide a claim of juvenility of a person as per the Rule 12(3). 11. In Ashwani Kumar Saxena’s case (supra) in para-36 of the decision, the Supreme Court has also observed thus :— “Age determination inquiry contemplated under the J. J. 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.” 12. 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.” 12. In Abuzar Hossain @ Gulam Hossain vs. State of West Bengal, AIR 2013 SC 1020 the apex Court has observed in para 36 thus :— “The Court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in 2000 Act are not defeated by hyper-technical approach and the persons who are entitled to get benefits of 2000 Act get such benefits. The Court should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima-facie on the touchstone of preponderance of probability.” 13. From the aforesaid propositions of law it is crystal clear that the Court has to determine the age of an accused who claims to be juvenile as per the Rule 12(3) and initial burden has to be discharged by him. 14. The Rule 12(3) reads thus :— “(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.” underlined by me. 15. It is to be noted that in each sub-clause of clause (a) of sub-rule 3 of Rule 12, the expression “and in the absence whereof” (which is underlined in this order) is repeated. Hence the expression requires due weightage. If these sub clauses are read placing emphasis on the expression, it is manifest that the age of child/juvenile is to be ascertained by adopting first available option out of the options given in the clause (a) and the option given in the clause (b) is available only when the options of clause (a) are not available at all in a given case. An option expressed in a preceding sub-clause has overriding effect over an option expressed in subsequent sub-clause. The highest rated option available would conclusively determine the age of a child. For illustrative purpose, in a given case, if both the matriculation or equivalent certificate and the date of birth certificate from the school (other than a play school) first attended are available, then the matriculation or equivalent certificate will take precedence over the date of birth certificate from the school in the order of precedence, provided that its authenticity is not under challenge. This view of mine is based upon a proposition of law laid down in para 34 of the decision rendered in Ashwani Kumar Saxena’s case (supra). 16. Now, it is to be seen how the learned JMFC has decided the age of the petitioner. Mahesh Chandra (NAW-1) is an In-charge and Head Master of Govt. Boys Primary School, Angour. This view of mine is based upon a proposition of law laid down in para 34 of the decision rendered in Ashwani Kumar Saxena’s case (supra). 16. Now, it is to be seen how the learned JMFC has decided the age of the petitioner. Mahesh Chandra (NAW-1) is an In-charge and Head Master of Govt. Boys Primary School, Angour. On the basis of an entry made at serial No. 1141 in the admission register of the school, which is marked as Ex. NA-1, he has deposed that the petitioner was admitted in 1st standard of the school on 12-7-2001. He has further stated that as per the aforesaid entry the date of birth of the petitioner is 7-4-1995 and the petitioner studied in the school from 12-7-2001 to 1-7-2002. This witness in his cross-examination has admitted that the admission form of the petitioner was not available. In his cross, it is challenged by the petitioner that he had never been admitted in the school. Thus, the evidence given by this witness regarding the date of birth of the petitioner on the basis of the entry is sketchy, slender and infirm. 17. Manpyare (AW-1) has stated in his evidence that the petitioner is son of his brother Jagdish. He and his brother Jagdish have got a joint family. The petitioner was born on 5-5-1997. At the time of admission of the petitioner in the 1st standard of Azad Bhagat Singh Middle School, Angour in the year 2003, he himself had filled up the admission form in which he had disclosed his date of birth as 5-5-1997. He has also deposed that the petitioner had never been admitted even for a short period in the Govt. Boys Primary School, Angour. It is pertinent to mention here that a certified copy of the admission form of the petitioner is produced in this Court. As per the entry in Ex. NA-1, the petitioner remained the student of Govt. Boys Primary School, Angour on 12-7-2001 to 1-7-2002. As per the admission form of Azad Bhagat Singh Middle School Angour, the petitioner was admitted in the school on 1-7-2003. In view of the above, had the petitioner been student of the Govt. As per the entry in Ex. NA-1, the petitioner remained the student of Govt. Boys Primary School, Angour on 12-7-2001 to 1-7-2002. As per the admission form of Azad Bhagat Singh Middle School Angour, the petitioner was admitted in the school on 1-7-2003. In view of the above, had the petitioner been student of the Govt. Boys Primary School, Angour from the period 12-7-2001 to 1-7-2002 then he would have been admitted in July 2002 itself in the Azad Bhagat Singh Middle School, Angour, but as per his admission form he was admitted in the aforesaid school on 1-7-2003 i.e. one year later. Upon this evidence it is conclusively proved that the petitioner was never a student of Govt. Boys Primary School, Angour. Hence, the learned JMFC has erred in deciding the date of birth of the petitioner as 7-4-1995 relying upon the entry of Ex. NA-1. 18. Manpyare (AW-1) has tendered in his evidence the mark-sheets of the petitioner right from standard 1st to matriculation i.e. 10th standard Ex. A-1 to Ex. A-10. The genuineness of the aforesaid mark-sheets are not challenged by the respondent in his cross-examination. Hence, there is no ground to disbelieve these marksheets. The date of birth of the petitioner is shown in all these mark-sheets as 5-5-1997 right from Ist standard to 10th standard. Since the petitioner’s mark sheet-cum-certificate of High School Certificate Examination year (10 + 2) 2013, which is exhibited as Ex. A-10, is available on record. The learned JMFC and the learned ASJ ought to have decided the petitioner’s juvenility at the time of commission of the offence taking into consideration his date of birth as 5-5-1997, as per the Rule 12(3)(a)(i), but both the learned Judges committed a grave error by not deciding the petitioner’s date of birth on the basis of Ex. A-10. In the case of Subham vs. State of Madhya Pradesh, 2013 Cri.L.J. 1716 M.P., the matriculation certificate of the petitioner was available, the authenticity of which was not challenged by the contesting parties. Thereupon, this Court has held that the Courts below ought to have determined the age of the petitioner on the date of the commission of the offence on the basis of date of birth entered in it and nothing more could be seen at the time of the ascertainment of his age. In the Ex. Thereupon, this Court has held that the Courts below ought to have determined the age of the petitioner on the date of the commission of the offence on the basis of date of birth entered in it and nothing more could be seen at the time of the ascertainment of his age. In the Ex. A-10, the date of birth of the petitioner is shown as 5-5-1997 and as per the FIR of the case, the date of the incident is 15-9-2014. Thus, the age of the petitioner on the date of incident was 17 years 4 months and 10 days. Consequently, the petitioner was juvenile on the date of the offence as his age was below 18 years. 19. In view of the above findings of this Court, the orders dated 9-2-2015 and 16-10-2014 passed by the learned JMFC and the learned ASJ are hereby set aside after allowing this petition. This Court declares that the petitioner Harsewak Rajpoot was a juvenile who is in conflict with law on the date of incident. Therefore, the entire proceedings of Sessions Case No. 119/14 State of M.P. vs. Harsewak Rajpoot, arising out of Crime No. 134/14 of Police Station Gulganj, pending on the file of Additional Sessions Judge, Bijawar District Chhatarpur against the petitioner are quashed. The S.H.O. Police Station, Gulganj is directed to submit the charge-sheet against the petitioner before the concerned Juvenile Justice Board. The aforesaid trial Court is also directed to fix a date of appearance of the petitioner before the concerned Juvenile Justice Board and to return the charge-sheet to the S.H.O. Police Station, Gulganj with case-property, if any. 20. Copies of this order be sent to the aforesaid A.S.J. Court and the S.H.O., police station, Gulganj for information and compliance without delay. 21. Accordingly, this M.Cr.C. Stands finally disposed of.