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2016 DIGILAW 460 (RAJ)

Nisha v. State of Rajasthan

2016-03-30

M.N.BHANDARI

body2016
ORDER : M.N. Bhandari, J. By this criminal misc. petition, a challenge is made to the order dated 27th July, 2011 whereby an order was passed on the application under Section 7 of Juvenile Justice (Care and Protection of Children) Act, 2000 (for short “Act of 2000”). 2. Learned counsel for the petitioner submits that an application for determination of age under Section 7A of the Act of 2000 can be for the accused, who is claiming to be juvenile and cannot be for the victim. The application submitted by the respondent No.2 was allowed by the Court below in ignorance of the aforesaid and thereby, a direction was given to get the determination of age of the petitioner victim. Accordingly, the impugned order be quashed. 3. Learned counsel for the respondent/s has supported the order. 4. A reference of judgment of Apex Court in the case of Jarnail Singh v. State of Haryana reported in (2013) 7 SCC 263 has been given. Therein, the age of the victim of crime was ordered to be determined and was taken to be justified in reference to Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short “Rules of 2007”). The prayer is accordingly to maintain the order. 5. I have considered the submissions and perused the record. 6. The impugned order has been passed on an application under Section 7A of the Act of 2000. According to the learned counsel for the petitioner, the direction for determination of age under Section 7A of the Act of 2000 can be given only for juvenile accused and not for the victim. In view of the above, Section 7A of the Act of 2000 is quoted hereunder for ready reference : “7A. According to the learned counsel for the petitioner, the direction for determination of age under Section 7A of the Act of 2000 can be given only for juvenile accused and not for the victim. In view of the above, Section 7A of the Act of 2000 is quoted hereunder for ready reference : “7A. 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 inquiry, 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 recognised 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 orders and the sentence, if any, passed by a court shall be deemed to have no effect.” 7. The provision, referred above, permits that accused, claims to be juvenile, can make an application and on it, the order can be passed. How the determination has to be made is provided under Rule 12 of the Rules of 2007. The application in the present case has not been filed under Rule 12 of the Rules of 2007 but under Section 7A of the Act of 2000. As per the provision quoted above, the determination of age under the said provision can be of those, who are claiming themselves to be juvenile and thus, accused may claim his trial in reference to the Act of 2000. It does not provide for direction to determine the age of victim. Rule 12 of the Rules of 2007 however provides method of determination of age. It does not provide for direction to determine the age of victim. Rule 12 of the Rules of 2007 however provides method of determination of age. It provides for juvenile as well as child because it is not only that the determination of age is relevant for juvenile, who may be the accused but also for the child, who is in need of care and protection, thus both the words “juvenile” and “child” have reference under Rule 12 of the Rules of 2007 but it is to be governed by the substantive provision of the Act of 2000. In view of the above, Rule 12 of the Rules of 2007 cannot be applied in isolation. 8. In view of the above, the impugned order cannot be allowed to sustain and is accordingly set aside, however, for the ends of justice and looking to the overall facts of the case, this Court while exercising power under Section 482 Cr.P.C., issue direction for determination of age of the victim. The Investigating Officer/SHO of Police Station Nagar, District Bharatpur would get the documents/evidence to find out the age of the victim and report be submitted before this Court along with the conclusions. 9. The compliance of the direction aforesaid be made within a period of two months from the date of receipt of copy of this order. 10. With the aforesaid, this criminal misc. petition stands disposed of.