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2015 DIGILAW 937 (PNJ)

Prem Sharma v. State of Punjab

2015-05-18

DARSHAN SINGH

body2015
Darshan Singh, J.:- 1. The present revision petition has been filed by petitioner-Prem Sharma against the order dated 18.3.2014 passed by the learned Additional Sessions Judge, Amritsar vide which the application of the petitioner for declaring him as juvenile in conflict with law has been dismissed. 2. A case bearing FIR No. 403 dated 2.9.2012 was registered under Sections 363, 366 & 376 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") at Police Station Civil Lines, Amritsar against the petitioner on the statement of Som Pal on the allegations that his daughter has been enticed away by the petitioner on the pretext of marriage. During the course of investigation on 21.3.2013, the prosecutrix was recovered from the custody of the petitioner and on completion of the investigation, the report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") was presented under Sections 363, 366-A and 376 IPC. 3. During the course of trial, the petitioner moved an application for declaring him as a juvenile in conflict with law in terms of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "the Act"). The said application was dismissed by the learned trial Court vide impugned order dated 18.3.2014. It is pleaded that the date of birth of the petitioner is 2.1.1997 and he was juvenile on the date of offence. Hence, this revision petition. 4. Learned counsel for the petitioner has assailed the impugned order primarily on two grounds. Firstly that the enquiry conducted by the learned trial Court is not in accordance with Rule 12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the Rules"). He contended that the petitioner has produced the copy of his first attended school issued by the Principal of that school. Even the direction was given to verify the genuineness of that certificate but without getting the verification report, that certificate was illegally discarded. He further contended that the medical examination can only be ordered if the matriculation or equivalent certificate or the date of birth certificate issued from the school first attended is not available. Even the medical opinion is to be sought from the duly constituted medical board. He contended that in this case, no medical board was constituted. He further contended that the medical examination can only be ordered if the matriculation or equivalent certificate or the date of birth certificate issued from the school first attended is not available. Even the medical opinion is to be sought from the duly constituted medical board. He contended that in this case, no medical board was constituted. Only the opinion of a Radiologist was sought, which is also not in accordance with the Rule 12(3)(b) of the Rules. Thus, he contended that the impugned order is illegal and is not sustainable in the eyes of law. 5. On the other hand, learned State counsel pleaded that the certificate produced by the petitioner was not issued by the school first attended by the petitioner. Rather it was only a migration certificate, which was issued by the District Education Superintendent. So, the said certificate has been rightly discarded by the learned trial court. She further contended that the learned trial court has directed the ossification test of the petitioner to determine his age, which was carried out as per the rules and the bone age of the petitioner was found to be of 21 years on the date of examination. He was more than 18 years of age on the date of occurrence. So, he was not a juvenile. Thus, she contended that there is no infirmity in the impugned order. 6. I have given by thoughtful consideration to the aforesaid contentions. 7. The procedure to be followed for determination of the age has been prescribed in Rule 12(3) of the Rules, which reads as under:- "12. So, he was not a juvenile. Thus, she contended that there is no infirmity in the impugned order. 6. I have given by thoughtful consideration to the aforesaid contentions. 7. The procedure to be followed for determination of the age has been prescribed in Rule 12(3) of the Rules, which reads as under:- "12. Procedure to be followed in determination of Age (1) XXX XXX XXX XXX XXX XX (2) XXX XXX XXX XXX XXX XX (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." 8. As per the aforementioned statutory provisions, the evidence which is required to be obtained to determine the age is the matriculation or equivalent certificate, if available and in the absence whereof, the date of birth certificate from the school, other than a play school, first attended and in the absence whereof, the birth certificate given by a corporation or a municipal authority or a panchayat. In the absence of all the aforesaid certificates, only, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. 9. In the instant case, the impugned order shows that the petitioner has produced the copy of the migration certificate issued by the Principal of the school. The petitioner had examined his uncle Babu Rai and his mother in support of his case. 10. The interim order dated 9.1.2014, passed by the learned trial Court shows that the Additional Public Prosecutor has sought time for verification of the birth and school leaving certificate of the petitioner. The interim order dated 20.2.2014 shows that despite availing sufficient opportunities, no evidence was adduced by Assistant Sub Inspector Jaspal Singh in order to refute the genuineness of the certificate Ex. AW. 1/A. Thereafter, the learned trial court directed the ossification test of the petitioner to determine his age. 11. The learned trial Court has discarded the certificate Ex. AW. 1/A produced by the petitioner on the ground that the certificate has been issued by the District Education Superintendent and the same is not the original certificate. The same is not either a matriculation certificate or a date of birth certificate issued by the school. The same is merely a migration certificate issued by the said authority. It is also to be added that the copy of the said certificate has not been proved in accordance with the law. The petitioner has no examined any official from the office of the District Education Superintendent or the officer issuing the said certificate. Moreover, it was only a migration certificate and not the date of birth certificate. So, no fault can be found with the action of the learned trial Court discarding the aforesaid certificate. 12. However, the learned trial Court has based its conclusion on the basis of the report and the statement of Dr. Dolly B. Singh, Radiologist. In my opinion, the said medical evidence is not in accordance with Rule 12(3)(b) of the Rules as it provides that in the absence of certificates, detailed in Rule 12(3)(a)(i), (ii) & (iii) of the Rules, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or the child. But admittedly, in this case, no such Medical Board was constituted. But admittedly, in this case, no such Medical Board was constituted. Even the learned trial Court has only directed for the ossification test of the petitioner to ascertain his bone age and not the opinion of the duly constituted Medical Board. The police has moved an application dated 22.2.2014 to the Medical Officer, Civil Hospital, Amritsar, wherein also, it was mentioned that the bone test of the petitioner is to be conducted. Thereafter, he was subjected to x-ray examination and the opinion regarding his bone age was given, which is not the proper compliance of Rule 12(3)(b) of the Rules. The learned trial Court should have sought the medical opinion of the duly constituted Medical Board and not only the ossification test to determine the bone age of the petitioner. Thus, the impugned order is violative of Rule 12(3)(b) of the Rules and cannot be sustained in the eyes of law. 13. Thus, keeping in view my aforesaid discussion, the present revision petition is hereby allowed. The impugned order dated 18.3.2014 is hereby set aside. The case is remitted to the learned trial Court with a direction to pass a fresh order after obtaining the medical opinion of the duly constituted Medical Board as provided under Rule 12(3)(b) of the Rules.