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2022 DIGILAW 911 (RAJ)

Chandiram Kumhar v. State Of Rajasthan

2022-03-16

DINESH MEHTA

body2022
JUDGMENT Dinesh Mehta, J. - By way of the present petition, the petitioner has challenged the order dated 17.02.2022, passed by the learned Special Judge, POCSO Act Cases & Commission for Protection of Child Rights Act, 2005, Rajasthan (hereinafter referred to as the trial Court), whereby the respondent No. 2 has been held to be a juvenile and his case has been transferred to Juvenile Justice Board for trial. 2. Challenging the order impugned, learned counsel for the petitioner argued that a certificate issued by the Municipal Board was produced by the respondent No. 2 showing his date of birth to be 31.10.2003 and solely on the basis of such certificate, the learned trial Court has considered age of the respondent No. 2 to be below 18 years on the date of incident and transferred the case to be tried by the Juvenile Justice Board. 3. Learned counsel argued that it was incumbent upon the trial Court to have called for the medical report of the competent board so as to determine the medical age of the respondent No. 2. 4. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "the Act of 2015") deals with the contingency of presumption and determination of age of a victim or an accused, which reads thus: "94. Presumption and determination of age.-(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (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) 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." 5. A simple reading of Section 94 of the Act of 2015 makes it abundantly clear that if the committee or the board has reasonable ground to doubt the age of accused, the same can be determined by seeking evidence, which shall firstly be on the basis of the date of birth certificate issued by the School or the matriculation certificate issued by the concerned examination board and in absence thereof, the birth certificate given by the Corporation or Municipal Authority or Panchayat. It is only in absence of the certificate(s) issued by the School/Board or the certificate issued by the Municipal authority; the age is required to be determined as per clause (iii) of Section 94 of the Act of 2015. 6. Sub-section 2 of Section 94 of the Act of 2015 which contains these sub-clauses. Clause (iii) starts from expression "and only in absence of (i) and (ii) above" leave no room for ambiguity that clause (iii) can be resorted to only in the absence of certificate mentioned in clause (i) and (ii). Therefore, contentions of learned counsel for the petitioner that it was required of the trial Court to have got the age of the respondent No. 2 determined as per clause (iii) is absolutely misconceived. 7. Therefore, contentions of learned counsel for the petitioner that it was required of the trial Court to have got the age of the respondent No. 2 determined as per clause (iii) is absolutely misconceived. 7. The misc. petition is, therefore, dismissed. 8. Stay petition also stands dismissed accordingly.