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2019 DIGILAW 302 (CAL)

SACHIN CHHETRI v. STATE OF WEST BENGAL

2019-03-04

SUBHASIS DASGUPTA

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JUDGMENT : SUBHASIS DASGUPTA, J. 1. The impugned order dated 17/09/2018 passed by learned Additional District and Sessions Judge-cum- Special Judge, Kurseong, in connection with Kurseong P.S Case No. 132 dated 20/07/2018 numbered as Special Case No. 10 of 2018 rejecting the prayer of the revisionist/accused soliciting a direction upon I.O to enquire and submit a report with regard to the age of the victim in context with the Aadhar Card of the victim, is the subject of challenge in this revisional application. 2. Learned advocate for the revisionist submitted that evidential value of an Aadhar Card mentioning the date of birth of a person could not be disregarded in application of the provisions of Section 35 of the Evidence Act on the simple ground that the Aadhar Card was prepared by public official in discharge of the public/official duties, and the same should have been treated by the court below superior to the School Certificate collected by the I.O in course of the investigation revealing the date of birth of the victim. 3. Per contra, learned advocate for the State submitted that there was no such illegality committed by the learned Special Judge in rejecting the prayer of the revisionist/accused, which was basically furnished banking upon an Aadhar Card. It was not taken care of under the provisions of the law being not an age proving document, according to legislative intent expressed so far in several legislations operating in this field, meant for determination of age of child. Thus, according to State, Aadhar Card may be a document of proof of identity of holder, but the same can not be regarded as proof of age. 4. The criminal law was set in motion receiving a complaint from de facto complainant on 20/07/2018, wherein it was alleged that the daughter of the de facto complainant was employed in the house of revisionist as a domestic aid. During the performance of the duties, the daughter of the de facto complainant was sexually assaulted by the revisionist and in consequence thereof the present case under the POCSO act came to be filed against the revisionist/accused. The Investigating Officer seized birth certificate issued by the Head Mistress of Sukna High School, wherein the date of birth of the victim girl being the daughter of the de facto complainant was noted as 18/09/2002. The Investigating Officer seized birth certificate issued by the Head Mistress of Sukna High School, wherein the date of birth of the victim girl being the daughter of the de facto complainant was noted as 18/09/2002. Relying upon such school certificate containing the date of birth of the victim, the age of the victim was considered to be less than 18 (eighteen) being a minor at the time of the commission of crime. 5. In course of argument advanced by the learned advocate for the revisionist emphasis was substantially laid on the Aadhar Card of the victim mentioning the date of birth of the victim, as 05/10/1999, in order to establish specific stand that at the time of commission of the offence, the victim was above 18 (eighteen) years old, not covered under the provisions of POCSO Act, 2012. 6. From the order impugned, it appears that learned court below was pleased to observe that Section 34 of the POCSO Act, 2012 could not be made applicable in this case on the simple reason that Section 34 of the Act deals with the procedure for determination of the age committed by the Juvenile accused. Thus, according to learned Special Judge, Section 34 of the Act would be inapplicable in the given context of the case for determination of the age of the victim. Learned Special Judge under POCSO Act was further of the view that the provisions incorporated in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 would be applicable in this case subscribing his view already offered by the learned Public Prosecutor appointed in this case and decided that Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 already recognised the date of birth certificate from the school for being considered in connection with a dispute travelling around the age of the victim. 7. What is gathered in the present context of this case is that there are two versions available with regard to the age of the victim. One according to the school certificate issued by the Head Mistress of the school in which the victim attended revealing the date of birth of victim noted therein as 18/09/2002, and another in terms of the Aadhar Card mentioning the date of birth of the victim as 05/10/1999. One according to the school certificate issued by the Head Mistress of the school in which the victim attended revealing the date of birth of victim noted therein as 18/09/2002, and another in terms of the Aadhar Card mentioning the date of birth of the victim as 05/10/1999. The school certificate recording the date of birth was obviously prepared on the basis of the self-serving information supplied by the parents of the victim at the time of putting the victim to school, which may be ratified by document or not. Aadhar Card furnishing the date of birth of the victim was also prepared on the basis of the self-serving materials either at the instance of the parents of the victim, or by the victim herself, by public official during the discharge of public duties. Now the point to be addressed by the Court requiring decision is whether the age of the victim was perfectly determined in context with the provisions of the law, when there is an apparent conflict with regard to the date of birth of the victim, shown in two different documents, that is one supplied by the school recording the date of birth of the victim, and another prepared in a document, as Aadhar Card, showing the date of birth of the victim. 8. When revisionist/accused disputes with the age of victim banking upon Aadhar Card, it is for the prosecution to explain how these two versions with regard to date of birth of victim could be made possible? And why the school document mentioning the date of birth of victim would be preferred, in a case where there is apparent conflict of date of birth of victim, found on two documents available at the moment before the Court. 9. Section 2 (1) (d) of POCSO Act, 2012 defines 'child' which runs as follows:- "Child means any person below the age of 18 years". 10. The Apex Court has observed in the case of Jarnail Singh versus State of Haryana reported in, (2013) 7 SCC 263 which may be mentioned as hereunder:- "On the issue of the determination of the age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007." 11. At the very outset, it may be mentioned here that the POCSO Act is a gender-neutral legislation. At the very outset, it may be mentioned here that the POCSO Act is a gender-neutral legislation. It would be profitable here to know the object and the purpose of bringing a legislation of POCSO Act by referring Paragraph 18 of a decision rendered by the Apex Court in the case of Ms. Eera through Dr. Manjula Krippendorf versus State (NCT of Delhi) reported in, (2018) CriLJ 186, the relevant extract of Paragraph 18 may be mentioned as hereinunder:- 18 "........... the purpose of referring to the Statement of Objects and Reasons and the Preamble of the POCSO Act is to 19 appreciate that the very purpose of bringing a legislation of the present nature is to protect the children from the sexual assault, harassment and exploitation, and to secure the best interest of the child. On an avid and diligent discernment of the preamble, it is manifest that it recognizes the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child. Best interest and well being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The statement of objects and reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. There is also a mention which is quite significant that interest of the child, both as a victim as well as a witness, needs to be protected. The stress is on providing child-friendly procedure. Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal place in the text of the POCSO Act." 12. The stress is on providing child-friendly procedure. Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal place in the text of the POCSO Act." 12. Since POCSO Act is a gender-neutral legislation, and since dignity of the child has been strongly emphasised in the scheme of legislation, it is necessary to issue certain direction so that legislative intent and the purpose are actually fructified at the ground level, when the issue surfacing a conflict of age of the victim was raised for the first time before the learned Judge, Special Court under the POCSO Act. The statutory interpretation of a provision of law cannot be taken to be a static one, it is always considered as dynamic one. Literal rule of interpretation is considered to be of highest importance to interpret a provision of law, but upon consideration of the scheme of legislation together with the object behind, the doctrine of purposive interpretation in the given context of the case for its peculiarity involved in the facts and circumstances, may be stretched particularly in the instant case, where authenticity of document in proof age of the victim, issued by the Head Mistress of school, and collected by the Investigating Officer has been grossly challenged under the behest of an Aadhar Card showing a different recording the date of birth, contrary to that already collected by the Investigating Agency. A literal interpretation of the provisions of the law as enunciated under the Act in the instant case, if given effect to, the very purpose of instant legislation may lead to absurdity. 13. The Juvenile Justice (Care and Protection of Children) Act, 2015 came into effect on 15/01/2016. At the time of commission of offence, this Act already found its existence. Upon perusal of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, there is no apparent conflict with regard to the process to be adopted for determination of the age of a child, may be a victim or a Juvenile committing crime under POCSO Act. Such procedure, as contained in Juvenile Justice (Care and Protection of Children) Act, has to be followed for determination of age of the victim in order to give effect to the purpose of legislation. 14. Such procedure, as contained in Juvenile Justice (Care and Protection of Children) Act, has to be followed for determination of age of the victim in order to give effect to the purpose of legislation. 14. There is nothing mentioned in the order impugned that the learned Special Judge to set the issue at rest surfacing a conflict with regard to the age of the victim, found apparent on two documents, one collected by the Investigating Agency and another furnished by the defence, resorted to a procedure, as enunciated under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 together with rules, if any, framed thereunder, what has to be observed for answering a question pertaining to the determination of the age of the victim. Alternatively it may be put in this way, whenever a dispute is thrown before a Court claiming the victim to be above 18 (eighteen) years, it is a primary obligation, to be discharged by the Court adhering to the procedure, as specifically laid down mentioned hereinabove. Aadhar Card is a document issued by the Government of India for a holder of a person, prepared by public official in discharge of public duties, and the probative value of such Aadhar Card mentioning the date of birth of the holder cannot be disregarded, which needs determination in the perspective of the law operating in this field after holding an enquiry. 15. For the reasons made hereinabove, the impugned order dated 17/09/2018 in effect rejecting the Aadhar Card furnished by the defence mentioning the date of birth of the victim girl surfacing a dispute with regard to the age of the victim cannot go unaltered. Accordingly, the same is set aside. The revisional application succeeds. 16. 15. For the reasons made hereinabove, the impugned order dated 17/09/2018 in effect rejecting the Aadhar Card furnished by the defence mentioning the date of birth of the victim girl surfacing a dispute with regard to the age of the victim cannot go unaltered. Accordingly, the same is set aside. The revisional application succeeds. 16. Learned Special Judge, POCSO Court, Kurseong in connection with Special Case No. 10 of 2018 shall conduct an enquiry for determination of the age of the victim in terms of the procedure laid down under Juvenile Justice (Care and Protection of Children) Act, 2015 and the rules, if any, framed thereunder in context with the two documents available before the Court, that is the certificate issued by the Head Mistress of Sukna High School revealing the date of birth of the victim and the Aadhar Card mentioning the date of birth of the victim in order to set the issue surfaced at rest, as expeditiously as possible preferably within a period of four weeks from the date of communication of this order, giving sufficient and adequate opportunities to prosecution, so that the purpose behind enacting the legislation is given effect to in the interest of justice. 17. Accordingly, the revisional application stands disposed of.