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Madhya Pradesh High Court · body

2016 DIGILAW 1113 (MP)

Devendra Singh v. State of M. P.

2016-12-06

J.P.GUPTA

body2016
ORDER 1. This criminal revision at the instance of the complainant under section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (For short, referred to as 'the Act of 2015') against the confirming order dated 30.9.2015 passed in Criminal Appeal No.239/2015 by First Additional Sessions Judge to the Court of I Additional Sessions Judge, Bhind whereby the order of the Juvenile Justice Board dated 17.7.2015 in connection with crime No.82/2013 for the offences under sections 302, 147,148 and 149 IPC and sections 25/27 of the Arms Act, the respondent No.2, Neeru alias Vivek (For short, referred to as 'the respondent No.2') has been declared the juvenile in conflict with law. 2. The petitioner/complainant has assailed the aforesaid orders on the ground that on the date of occurrence of the incident, i.e., on 28.2.2013 the respondent No.2 was more than 18 years. It is submitted that during the investigation of the case, the ossification test was conducted and the age of the respondent No.2 was found to be 19 to 20 years. It is further submitted that in the High School marks sheet, the date of birth of the respondent No.2 has been mentioned as 6.1.1996 whereas in the certificate issued by the Lakshmi Bai Convent at the time of registration in the school, his date of birth has been shown as 8.2.1998. Hence, in the educational record of respondent No.2, different date of births had been recorded and accordingly, such entries cannot be relied upon. In such a situation, the ossification test be considered and as per the medical evidence, at the time of the incident, the age of the respondent No.2 was more than 18 years. Therefore, the findings of the Juvenile Justice Board and the appellate Court are illegal and contrary to law, therefore, the same deserves to be set aside and the respondent No.2 be not considered as a juvenile in conflict with law. 3. Learned State's counsel has supported the impugned order and prayed for dismissal of the petition. 4. Learned counsel for the respondent No.2 has submitted that the findings of the learned Courts below are perfectly in accordance with law as the age of respondent No.2 has been determined in accordance with the procedure prescribed under rule 12 of the Juvenile Justice (Care and Protection of Children) rules, 2007 (For short, referred to as 'the Rules of 2007'). Learned counsel for the respondent No.2 has submitted that the findings of the learned Courts below are perfectly in accordance with law as the age of respondent No.2 has been determined in accordance with the procedure prescribed under rule 12 of the Juvenile Justice (Care and Protection of Children) rules, 2007 (For short, referred to as 'the Rules of 2007'). It is submitted that according to the aforesaid provision, the learned Magistrate has rightly decided that the respondent No.2 was juvenile on the date of the incident, i.e., on 28.2.2013 and the said finding has been upheld by the appellate Court. Hence, the revision petition deserves to be dismissed. 5. Having considered the rival contentions of the learned counsel for the parties and perusal of the record, it is emerged that the incident at issue has occurred on 28.2.2013 and the date of birth of the respondent No.2 as per High School marks sheet is 6.1.1996. 6. It would be relevant and appropriate to reproduce the relevant provision of rule 12(3) of the Rules, 2007 which reads as under : “Rule 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. (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. 7. The Hon'ble apex Court in the case of Ashwani Kumar Saxena v. State of M.P. [ 2013(1) JLJ 69 = AIR 2013 SC 553 ], has examined the scope and procedure of the inquiry required to achieve the object of the Act of 2015. In this regard, it would be appropriate to reproduce paragraphs 32, 36 and 37 as under : “32. Consequently, the procedure to be followed under the J.J. 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 7A of the Act. Many of the cases, we have come across, it is seen that the Criminal Courts are still having the hang over 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 7A read with rule 12. 36. 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. 37. 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. 37. We have come across several cases in which trial Courts have examined a large number of witnesses on either side including the conduct of ossification test and calling for odontology report, even in cases, where matriculation or equivalent certificate, the date of birth certificate from the school last or first attended, the birth certificate given by a corporation or a municipal authority or a panchayat are made available. We have also come across cases where even the Courts in the large number of cases express doubts over certificates produced and carry on detailed probe which is totally unwarranted.” Further, in paragraphs 34 and 35 has interpreted the rule 12 of the Rules of 2007 which reads as under : “34. “Age determination inquiry” contemplated under section 7A of the Act r/w rule 12 of the 2007 Rules enables the Court to seek evidence and in that process, the Court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the Court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the Court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the Court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year. 35. Once the Court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. 35. Once the Court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in sub-section (5) or rule 12 that no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the rule 12. Further, section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination.” 8. As regards the plea of juvenility, the apex Court in the case of Abuzar Hossain @ Gulam Hossain v. State of West Bengal [ AIR 2013 SC 1020 ], has observed as under : “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 hypertechnical 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. 9. In view of the provisions of rule 12(3) and enunciation of law by the Hon'ble Supreme Court quoted above, once the matriculation or the equivalent certificate is available, then the same shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law and other documents need not to be considered. 10. In the present case, it is not dispute that the High School certificate of the juvenile in conflict with law is available on record wherein his date of birth has been mentioned as 6.1.1996 and the same is conclusive proof of age. Hence, no other document including the ossification test cannot be considered as to whether the date of birth of the juvenile in conflict with law is correct or wrong. 11. In view of the aforesaid discussion, this criminal revision filed by the petitioner/complainant being devoid of substance is hereby dismissed.