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2015 DIGILAW 581 (JHR)

Ajit Pramanik v. State of Jharkhand

2015-05-06

RAVI NATH VERMA

body2015
ORDER : By way of this revision application, the petitioner Ajit Pramanik takes exception to the order dated 09.03.2015 passed by learned Additional Sessions Judge-V, Dhanbad in Sessions Trial No.180 of 2012 whereby and whereunder the petition filed by the petitioner under Section 7(A) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act) read with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the Rules) for declaring him Juvenile, has been rejected. 2. It appears from the record that at the instance of the informant Ruksana Khatoon, the fardbeyan was recorded and the F.I.R. was lodged on the allegation that in the intervening nigh of 27-28, January, 2012 when the informant was sleeping in her house, at about 1.00 a.m. someone knocked the door. The informant anticipating his father or brother knocking the door opened the door, but the accused Ajit Pramanik (the petitioner) was found to be standing, who forcibly entered into the room and committed rape upon her and when the father of the informant came to house, the petitioner anyhow fled away. The informant narrated the entire incidence to her father whereafter her fardbeyan was recorded. 3. It further appears that during pendency of trial, the petitioner filed a petition dated 19.12.2014 claiming himself to be a juvenile and prayed that on the alleged date of occurrence he was less than 18 years of age but as he never attended the school at any point of time and as such he has no school certificate and his matter may be referred to a duly constituted Medical Board for assessment of his juvenility. The court below by order impugned dated 09.03.2015 rejected his prayer for assessment of his age holding as follows:- “from his physical appearance his age appears to be near about 25 years. At the time of first remand by the Ld. Lower Court on 28.01.2012 on the basis of physical appearance the age of accused was assessed as 22 years. From perusal of memo of arrest it also transpires that the age of accused has been mentioned as 22 years which has been signed by two independent witnesses. At the time of first remand by the Ld. Lower Court on 28.01.2012 on the basis of physical appearance the age of accused was assessed as 22 years. From perusal of memo of arrest it also transpires that the age of accused has been mentioned as 22 years which has been signed by two independent witnesses. It is not a marginal case for determination of age and assessment made by the court is full and final on the basis of physical appearance of accused according to Rule 12(2) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, so there is no any question of constituting the medical board in this case as provided in Rule 12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and no any further inquiry is needed and prima facie it appears from the physical appearance that he is an adult of 25 years of age at present.” 4. Learned counsel appearing for the petitioner seriously contended that the court below while passing the order ignored the Provisions of Act and Rules as envisaged in Section 7(A) of the Act and Rule 12 of the Rules, 2007. It was also submitted that the sub Rule (3) (b) of Rule 12 clearly stipulates that in absence of any certificate the court will direct the assessment of age by duly constituted Medical Board but the court below on mere conjecture and surmises and relying upon assessment of age of the petitioner at the time of remand, rejected his prayer. 5. Contrary to the aforesaid submissions learned counsel representing the State submitted that the question of juvenility was raised by the petitioner at a belated stage and the court below rightly relied upon the age as assessed by the Judicial Magistrate at the time of his remand and there is no plausible ground to interfere in the order impugned. 6. In Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750 : 2013 (1) JLJR (SC) 182 while explaining the scope of Section 7(A) of the Act of 2000 and Rule 12 of Rules 2007 in Para 24 of the judgment held as follows :- “24. 6. In Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750 : 2013 (1) JLJR (SC) 182 while explaining the scope of Section 7(A) of the Act of 2000 and Rule 12 of Rules 2007 in Para 24 of the judgment held as follows :- “24. We may, however, point out that none of the abovementioned judgments referred to earlier had examined the scope, meaning and content of Section 7-A of the Act, Rule 12 of the 2007 Rules and the nature of the inquiry contemplated in those provisions. For easy reference, let us extract Section 7-A of the Act and Rule 12 of the 2007 Rules :- “7-A. Procedure to be followed when claim of juvenility is raised before any Court-(1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be :- Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the Rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a Court shall be deemed to have no effect. “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 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. The Hon’ble Supreme Court in Paragraphs 30, 31, 41 & 42 has further held:- 30. The Hon’ble Supreme Court in Paragraphs 30, 31, 41 & 42 has further held:- 30. Consequently, the procedure to be followed under the JJ Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules, We cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the Court exercising powers under Section 7-A of the Act. In many of the cases, we have come across, it is seen that the Criminal Courts are still having the hangover of the procedure of trial or inquiry under the Code as if they are trying an offence under the penal laws forgetting the fact that the specific procedure has been laid down in Section 7-A read with Rule 12. 31. We also remind all Courts/Juvenile Justice Boards and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate, etc. mentioned in Rules 12(3)(a)(i) to (iii) The Courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection. 41. This Court in Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266 held, in a case where the accused had failed to produce evidence/certificate in support of his claim, medical evidence can be called for. The Court held that:- 22. the medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence. This Court set aside the order of the High Court and remitted the matter to the Chief Judicial Magistrate heading the Board to redetermine the age of the accused. 42. In Shah Nawaz v. State of U.P. (2011) 13 SCC 751 the Court while examining the scope of Rule, 12, has reiterated that 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 a corporation or a municipal authority or a Panchayat or municipality is not available. The Court had held that entry related to date of birth entered in the mark-sheet is a valid evidence for determining the age of the accused person so also the school leaving certificate for determining the age of the appellant. 7. Apparently, in the case at hand, the petitioner in clear terms had stated that he had never studied in any school and so he has no school certificate or any certificate issued by any authority and stating that fact a petition for declaring him juvenile was filed on 19.12.2014 with a prayer to refer the matter of determination of his age to a duly constituted Medical Board. In a case where in terms of Clause (a) of sub Rule 3 of Rule 12, no documents or evidence is available, medical opinion will be sought in terms of Clause (b) of the above sub Rule and Rule from a duly constituted Medical Board which will declare the age of the juvenile or child. No doubt at first instance the Court will assess the age of the delinquent on the basis of his physical appearance but on application filed by the said delinquent ‘inquiry’ shall be made/conducted in terms of sub Rule 3 of Rule 12 of Rules 2007. But in the case at hand, the Court violating the clear mandate given by the Hon'ble Supreme Court in Ashwani Kumar Saxena v. State of M.P (supra) in the light of the above Rule determined the age of the petitioner on the basis of his physical appearance only relying upon the age assessed by the Judicial Magistrate at the time of remanding. Even the court below refused to constitute the Medical Board for assessing the age of the petitioner. 8. Hence, I am constrained to hold that the order impugned being not in consonance with the provisions of the Act and Rules, is fit to be set aside. 9. The revision application is, accordingly, allowed and the order impugned dated 09.03.2015 passed by learned Additional Sessions Judge-V, Dhanbad in Sessions Trial No.180 of 2012 is hereby set aside and the matter is remanded back to the court with a direction to pass order on the petition filed by the petitioner in accordance with law in the light of observation made above.