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2018 DIGILAW 1326 (RAJ)

Kanaram Saini v. State of Rajasthan

2018-05-18

DEEPAK MAHESHWARI

body2018
JUDGMENT AND ORDER : Deepak Maheshwari, J. 1. Heard learned counsel for both the sides as also learned Public Prosecutor. 2. This revision petition has been preferred on behalf of Kanaram with the prayer to quash and set aside the order dated 04.01.2018 passed by learned Additional Sessions Judge, Chomu whereby petitioner Kanaram has been adjudicated not to be a juvenile after conducting enquiry under the provisions of Section 9 of the Juvenile (Care and Protection) Act, 2015. 3. Learned counsel for the petitioner submits that learned lower Court has placed reliance on scholar's register form No. 1051 of Government Girl Higher Secondary School, Dhawali (Shahpura) and found the date of birth of Kanaram as 16.02.1997, while considering this document to have been produced by Kanaram. Counsel submits that in fact this was not the document produced on behalf of Kanaram, but it was called by the prosecution from accused under the provisions of Section 91 Cr.P.C. Counsel submits that learned Court below has completely ignored the documents produced by Kanaram wherein his date of birth has been consistently mentioned as 08.09.1999. These documents and marksheets pertaining to class 7th, 8th & 9th and Secondary School examination. 4. Counsel further submits that the statement of father of Kanaram namely Prahlad Singh (AW-1) was recorded during inquiry but that statement has not been taken into consideration by the Court below, who has clearly stated that the date of birth of Kanaram is 08.09.1999. Learned counsel has also contended that as per the provisions contained in Section 94 of the Act of 2015 and Rule 12 of the Juvenile Justice (Care and Protection of Rules) 2007 credence is to be given to the matriculation or equivalent certificates as compared to other document in regard to the date of birth. In this regard reliance has been placed by the counsel on the Judicial pronouncement rendered in Anand and Others vs. State of Rajasthan and Others, S.B. Criminal Revision Petition Nos. 159/2016 and 234/2016, Shahnavaj vs. State of U.P. (2011) AIR (SC) 3107, State of M.P. vs. Anoop Singh, (2015) AIR (SCW) 3985 and Surendra Kumar vs. State of Rajasthan (2008) 4 RLW 2984. 5. 159/2016 and 234/2016, Shahnavaj vs. State of U.P. (2011) AIR (SC) 3107, State of M.P. vs. Anoop Singh, (2015) AIR (SCW) 3985 and Surendra Kumar vs. State of Rajasthan (2008) 4 RLW 2984. 5. Per contra learned counsel appearing for the complainant-respondent No. 2 has contended that the documents referred by learned counsel for the petitioner are not relevant as no document with regard to the admission taken by the petitioner in the school first attended by him has been produced on behalf of petitioner. He has contended that the admission form filled up by Manju Saini for admission of the petitioner in class 2nd contains his date of birth as 16.02.1997 which must be taken to be correct. Scholar register form of Government Girl Higher Secondary School, Dhawli has also been referred by learned Public Prosecutor wherein the date of birth of Kanaram has been mentioned as 16.02.1997. On basis of these documents learned Public Prosecutor as also learned counsel for the respondent-complainant contend that the order passed by learned Additional Sessions Judge, Chomu is proper and cannot be quashed and set aside. 6. Having considered the rival arguments and the documents referred by both the sides, I am of the considered opinion that the provision contained in Section 94 of the Act of 2015 is required to be taken into consideration, which reads as under: 94. Presumption and determination of age. 1.... 2. In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining: (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof. (ii) the birth certificate given by a corporation or a municipal authority or a panchayat. (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. 3. 3. The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 7. It is thus evident that birth certificate from the school and matriculation certificate or its equivalent certificate is also required to be taken into consideration while determining the age. But on perusal of the order impugned, no reference to matriculation certificate is found. Counsel has stated that matriculation certificate produced before the court below has not been taken into consideration. Further, statement of father of petitioner Prahlad Singh also does not find place in the order impugned. The evidence adduced during enquiry regarding the age, including the statement of witnesses ought to have been discussed. 8. It has also been brought to notice of the court that the Juvenile Justice (Care and Protection of Children), Rules 2007 has now been repealed by the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 (for short as ‘Model rules of 2016’). Rule 94 of the Model rules of 2016 is relevant in this regard. 9. In Surendra Kumar vs. State of Rajasthan, (2009) Cri. L.J. 568, the coordinate bench of this court has held as under: 16. The question which calls for determination by this Court is whether the Rules of 2007 having been published in the gazette on 26.10.2007 now at this stage can be applied to the present case when already determination in the enquiry held under Section 7A has been made by learned Additional Sessions Judge vide impugned order dated 17.8.2007. The question which calls for determination by this Court is whether the Rules of 2007 having been published in the gazette on 26.10.2007 now at this stage can be applied to the present case when already determination in the enquiry held under Section 7A has been made by learned Additional Sessions Judge vide impugned order dated 17.8.2007. Section 7A of the Act provides for the procedure when claim of juvenility is raised before the Court, which for the facility of reference is reproduced hereunder: A. Procedure to be followed when claim of juvenility is raised before any Court:- Wherever 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 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 orders and the sentence, if any, passed by a court shall be deemed to have no effect. 23. The Supreme Court in Gurbachan Singh vs. Satpal Singh and Others, (1990) Cri. L.J. 562 was dealing with a question whether under Section 113A of the Evidence Act having been en-drafted into the Evidence Act w.e.f. 26.12.1983, the presumption on the strength of such newly inserted provision in regard to the cases of dowry death could be raised where the incident of death had taken place prior to the date of insertion of the aforesaid provision by way of amendment. The Supreme Court in para 36 to 40 held as under: 36. The Supreme Court in para 36 to 40 held as under: 36. The provisions of the said Section do not create any new offence and as such it does not create any substantial right but it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case. It is profitable to refer in this connection to Halsbury's Laws of England, (Fourth Edition), Volume 44 page 570 wherein it has been stated that: That general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective and, retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature.... 37. It has also been stated in the said volume of Halsbury's Law of England at page 574 that: The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament. 24. The Rules of 2007, even though have been enforced by their publication in the Gazette of India on 26.10.2007, they would apply to all cases wherever the claim of juvenility is made which may have been pending on the date of its insertion. Such claim of juvenility has to be dealt with and decided by the Court concerned as per the procedure contained in Rule 12. The Rules of 2007 shall continue to occupy the field till they are suitably replaced by appropriately framed another set of rules by the State Government. 10. The Supreme Court in Shiv Shakti Cooperative Housing Society, Nagpur vs. Swaraj Developers and Others, (2003) 3 SCR 762 while dealing with the question whether the amended provisions of Section 115 especially the proviso effective after amendment by Act of 1946 of 1999 w.e.f. 1st July, 2002 would also apply to the pending proceedings held in para 32 of the report as follows: xxx xxx xxx The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation. 11. In view of above, it is obvious that the Model Rules of 2016 which have come into force from 21.9.2016 shall be applicable while determining the age of juvenile irrespective of the date of occurrence of offences. Learned court below ought to have taken into consideration the provisions of Sec. 94 of the Act of 2015 along with Model Rules of 2016. 12. In para 27, the Hon'ble Apex Court in Rambraksh @ Jalim vs. State of Chhattisgarh, (2016) Criminal Law Reporter 503, has held as under: "27. The benefit of the principle of benevolent legislation attached to the JJ ACT would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well-planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue." While determining the age of juvenile, the court below is also directed to take into consideration the above stated principle. 13. In view of above discussion, order passed by learned Addl. Sessions Judge, Chomu on 4.1.2018 appears to have been passed in contravention of the provisions contained in Sec.94 of the Act of 2015. It is further directed that Model Rules of 2016 are also to be taken into consideration while determining the age of the petitioner. 14. In the result, this revision petition is allowed and the order dated 4.1.2018 is quashed and set aside with the direction to the concerned court to determine the age of the petitioner afresh in the light of observations made above. 15. The revision petition stands disposed of accordingly.