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Meghalaya High Court · body

2015 DIGILAW 49 (MEG)

Banangsan Tynsong v. State of Meghalaya

2015-04-10

UMA NATH SINGH

body2015
ORDER 1. I have heard learned counsel for parties and perused the pleadings of criminal revision. 2. It appears that on 02.01.2015 an FIR was lodged by one Smti Pylsia Khongsit to the effect that a day before i.e. 01.01.2015 her daughter Smti Kordilia Khongsit was sexually assaulted by nephew of the petitioner at about 6 AM while she was returning home after New Year Celebration in the village. The accused was thus arrested and charged for commission of offences under 9(i)(m) read with Section 10 of Protection of Children from Sexual Offences Act, 2012 (for short POCSO Act, 2012). As per averments, the accused was aged about 16 years 3 months calculated on the basis of birth certificate issued by the Government of Meghalaya, Department of Health and Family Welfare as well as matriculation Admit Card issued by the Meghalaya Board of School Education. It appears from the impugned order that as the Principal Magistrate, Juvenile Justice Court was on leave, the case was submitted before the Special Court of Sessions Judge/Addl. Deputy Commissioner (Judicial), Shillong, who accepted the prayer of Investigating Officer for sending the accused to Medical Board for Ossification Test with permission to interrogate. 3. Being aggrieved by the aforesaid order, this criminal revision has been filed. 4. Learned counsel for the petitioner contends that in terms of Section 34 of the POCSO Act, 2012, a child in conflict with law has to be dealt with only under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000, and in such cases where there is a serious doubt about the age of accused, the Special Court can exercise its discretion regarding the determination of age by sending the person to a Medical Board for Ossification Test. It is also a submission of learned counsel that Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 provides for mechanism as to how to determine the age of a child. 5. On the other hand, learned counsel for State argued that the impugned order has been passed in terms of provisions of Section 34(2) of the POCSO Act, 2012. 5. On the other hand, learned counsel for State argued that the impugned order has been passed in terms of provisions of Section 34(2) of the POCSO Act, 2012. Learned counsel for the petitioner also placed reliance in support of his case on judgments of Hon’ble the Apex Court in the matters of K. Ibrahim vs. State, 2014 (142) AIC 144 (SC) and Ashwini Kumar Saxena vs. State of Madhya Pradesh, (2012) 9 SCC 750 . 6. On due consideration of rival submissions, the revision application is allowed for the reasons that : (i) Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007, provides for the procedure and documents to be accepted as a proof of age of the child in conflict with law. Rule 12 is reproduced as under for ready reference : “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 h9me or in jail. (3) In very 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. (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. (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 of 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 he Act for passing appropriate order in the interest of the juvenile in conflict with law. 7. Hon’ble the Apex Court in the judgment reported in (2012) 9 SCC 750 (Ashwani Kumar vs. State of Madhya Pradesh) has held that enquiry regarding the determination of juvenility is expected to be an enquiry as contemplated under Section 2(g) Cr PC. The procedure for such enquiry is laid down only in Rule 12 of the Juvenile Justice (Care and Protection) of Children Rules 2007 and only that procedure has to be followed and not the one as prescribed under Cr PC. Besides Section 7(a) of the Juvenile Justice (Care and Protection) Act, 2000, casts a duty on the Court to make an enquiry only and not investigation or trial. Section 7 – A has used the expression “Court shall make an enquiry,” “take such evidence as may be necessary” and “but not an affidavit”. Yet the Court or board can accept as evidence something more than an affidavit i.e. Court or Board can accept evidence, certificate etc., as evidence, but it need not be oral evidence. Thus, according to the judgment, Rule 12 of the 2007 Rules has to be read along with section 7-A of 2000 Act. Besides Rule 12 (2) uses expression “ prima facie” and “ on the basis of physical appearance” or “ documents if available”. Rule 12 (3) uses expression, “by seeking evidence by obtaining”. These expressions reemphasise the fact that what is contemplated in Section 7-A and Rule 12 is only an enquiry. Besides Rule 12 (2) uses expression “ prima facie” and “ on the basis of physical appearance” or “ documents if available”. Rule 12 (3) uses expression, “by seeking evidence by obtaining”. These expressions reemphasise the fact that what is contemplated in Section 7-A and Rule 12 is only an enquiry. Further, age determination enquiry has to be completed and it has to be determined within 30 days from the date of making application which is also an indication in a manner in which under Juvenile Justice Act, the enquiry has to be conducted and completed. The role of Court in such cases is that of parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection. In the case under reference namely of Ashwani Kumar, the trial Court rejected school records for the purpose of determination of age and sent the juvenile for ossification test for determination of age by dismissing the claim of juvenility. The said order was affirmed by the High Court. In appeal before the Supreme Court the approach of the trial court and the High Court was held to be improper. The Honble Supreme Court accepted the claim of juvenility. The Honble Court placed reliance on its earlier judgment Reported in Shahnawaz vs. State of Uttar Pradesh, (2011) 13 SCC 751 wherein it was reiterated that the medical opinion from the Medical Board should be sought only when matriculation certificate or equivalent certificate or the date of birth Certificate from the school first attended or any birth Certificate issued by the Corporation, or Panchayat or Municipality is not available. The Court held that entry related to the date of birth entered in the mark sheet is an evidence for determining the age of the accused person, so also the school leaving certificate for such determination. In terms of Section 34 of POCSO Act, 2012, essentially a case has to be dealt with under the Juvenile Justice (Care and Protection of Children) Act, 2000. If there is any controversy regarding age, and that cannot be resolved in terms of the Act of 2000 and the Rules framed thereunder, only then, the discretion is left with the Court to satisfy itself regarding the age of a person in conflict in law. If there is any controversy regarding age, and that cannot be resolved in terms of the Act of 2000 and the Rules framed thereunder, only then, the discretion is left with the Court to satisfy itself regarding the age of a person in conflict in law. That apart, it is clear from the averments made in the petition that the accused produced his birth certificate issued by the Government of Meghalaya as well as the Admit Card for sitting in the matriculation examination issued by the Meghalaya Board of School Education. In that case, there is no scope for the Special Court to hold enquiry by indulging in hair splitting. If there is any document not being acceptable or there was any authentic document produced by the police against the proof of the age of person in conflict with law, only in that case, the Special Court may have considered to send the person to Medical Board for Ossification Test. Moreover, the act of sending a juvenile for police interrogation contrary to the provisions of law prohibiting such interrogation requires a serious scrutiny of the conduct of the Judicial Officer on administrative side. 8. Thus, let a copy of this order be sent to the Administrative Judge to summon the file and examine the matter on administrative side. The application is thus allowed with direction to the Principal Judge or Judge, Special Court to proceed in accordance with the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 for the purpose of the determination of the age of the person in conflict with law. Thus criminal revision petition stands disposed of with the aforesaid directions and observations.