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2018 DIGILAW 316 (RAJ)

DHOLI DEVI v. STATE OF RAJASTHAN

2018-01-23

SABINA

body2018
ORDER : SABINA, J. 1. Petitioner has filed this revision petition under Section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') challenging the orders dated 29.9.2015 and 8.7.2016. 2. Learned counsel for the petitioner has submitted that this court vide order dated 31.08.2015, had upheld the order passed by the Family Court whereby, respondent No. 2 was held to be a major. Initially, date of birth of respondent No. 2 had been given in the school record as 17.04.1995. However, at a later stage, when the respondent No. 2 appeared for eighth class examination, his date of birth was changed in the record to 17.04.1997. No reliance could be placed on the entry with regard to the date of birth of the respondent No. 2 in class eighth and class tenth examination certificates. In support of his arguments, learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court in in case of Kulai Ibrahim @ Ibrahim v. State Rep. 2014(4) RLW 3024 (SC) By the Inspector of Police B-1, Bazaar Police Station, Coimbatore, wherein, it was held as under:- "Though in this paragraph, this Court observed that the question of obtaining medical opinion from a duly constituted Medical Board arises only if the above-mentioned documents are unavailable, this Court went on to further observe that only in those cases, where documents mentioned in Section 12(a) (i) to (iii) of the J.J. Act, 2000 are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the Committee need to go for medical report for age determination. Thus in cases where documents mentioned in Section 12(a)(i) to (iii) of the J.J. Act, 2000 are unavailable or where they are found to be fabricated or manipulated, it is necessary to obtain medical report for age determination of the accused. In this case the documents are available but they are, according to the police, fabricated or manipulated and therefore as per the above observations of this Court if the fabrication is confirmed, it is necessary to go for medical report for age determination of the appellant. Delay cannot act as an impediment in seeking medical report as Section 7-A of the J.J. Act, 2000 gives right to an accused to raise the question of juvenility at any point of time even after disposal of the case. This has been confirmed in Ashwani Kumar. Delay cannot act as an impediment in seeking medical report as Section 7-A of the J.J. Act, 2000 gives right to an accused to raise the question of juvenility at any point of time even after disposal of the case. This has been confirmed in Ashwani Kumar. Moreover, J.J. Act, 2000 is a beneficent legislation. If two views are possible scales must tilt in favour of the view that supports the claim of juvenility. While we acknowledge this position in law there is a disquieting feature of this case which cannot be ignored. We have already alluded to the counter affidavit of Shri R. Srinivasalu, Inspector of Police. If what is stated in that affidavit is true then the appellant and his father are guilty of fraud of great magnitude. A case is registered against the appellant's father at the Ukkadam Police Station under Sections 467, 471and 420 of the IPC. Law will take its own course and the guilty will be adequately punished if the case is proved against them. Since the case is being investigated, we do not want to express any opinion on this aspect. Till the allegations are finally adjudicated upon and proved, we cannot take registration of the offence against the appellant." 3. Learned counsel for respondent No. 2 has submitted that as per Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007 (hereinafter referred to as 'Rules'), age of the juvenile is to be determined on the basis of his matriculation or equivalent certificate. 4. In the present case, admittedly as per the matriculation examination certificate the date of birth of the respondent No. 2 is 17.04.1997. There is no material on record that the said certificate is a fraudulent document. Petitioner has lodged FIR against respondent No. 2 and others under Section 498-A, 406 Indian Penal Code, 1860. 5. Rule 12 of the rules reads as under:- "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 (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 I he juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law." 6. Thus, as per the above rule, the age of the juvenile is to be firstly determined on the basis of matriculation or equivalent certificate. In the present case, the tenth class certificate is available on record and admittedly as per the said certificate, date of birth of respondent No. 2 is 17.04.1997. FIR in the present case was lodged with regard to the incidents which had occurred in June 2014. Thus, at that time respondent No. 2 was less than eighteen years of age. At this stage, there is no material on record to hold that the tenth class certificate of respondent No. 2 is a fabricated document. 7. In the facts and circumstances of the present case, the judgment relied upon by the learned counsel for the petitioner has fails to advance the case of the petitioner. 8. No ground for interference by this court while exercising revisional jurisdiction is made out. 9. Dismissed. 10. Record of the trial court be sent back forthwith.