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Rajasthan High Court · body

2023 DIGILAW 1510 (RAJ)

Chandiram Kumhar v. State of Rajasthan

2023-08-08

DINESH MEHTA

body2023
ORDER : 1. By way of the present application, invoking the High Court's power under section 482 of the Code of Criminal Procedure, 1973, the applicant has prayed that the order dated 16.03.2022 be recalled. 2. The basic bone of contention is, the age of the accused, for which the present applicant has approached this Court on two occasions and has traveled even up to the Supreme Court. 3. The backdrop facts are that a First Information Report (FIR No. 185/2021 dated 24.08.2021) came to be registered at Police Station Jai Narain Vyas Colony, Bikaner for offences punishable under sections 376(D), 363, 354, 506, 376(2) (n) and 450 of the Indian Penal Code and under sections 5(G), 6, 7, 8, 16 and 27 of the Protection of Children from Sexual Offences Act, 2012 and under sections 66E, 67A of the Information Technology Act, 2008, accusing the respondent No. 2 (M) to have committed the sexual assault upon minor daughter of the applicant. 4. At the time of registration of the FIR and during the investigation, the Investigating Officer did not treat the accused to be a juvenile. When the matter went before the competent Court (namely POCSO Court), an application came to be moved before the trial Court with a stand that since the accused is a minor, he be tried under the provisions of Juvenile Justice Act, 2015 (hereinafter referred to as 'the Act of 2015'). 5. Along with the application, the accused produced a certificate issued by the Municipal Corporation, Bikaner in which his date of birth was shown as 31.10.2003. On the basis of the certificate so produced by the respondent-accused, the POCSO Court accepted the claim of the respondent and vide order dated 17.02.2022 held that the trial is required to be proceeded under the provisions of the Act of 2015. 6. The said order was challenged by the present petitioner by way of a petition (S.B. Criminal Misc. Petition No. 1202/2022) filed under section 482 of the of the Code of Criminal Procedure. While challenging the said order, it was prayed by the petitioner that a medical examination/ossification test of the respondent be conducted so as to determine his correct age. The said order was challenged by the present petitioner by way of a petition (S.B. Criminal Misc. Petition No. 1202/2022) filed under section 482 of the of the Code of Criminal Procedure. While challenging the said order, it was prayed by the petitioner that a medical examination/ossification test of the respondent be conducted so as to determine his correct age. Such request was turned down by this Court by way of order dated 16.03.2022, inter-alia observing that since the certificate issued by the Municipal Corporation was available, conducting medical examination/ossification test was not permissible in view of the express provision contained in Section 94(2)(iii) of the Act of 2015. 7. The trial was transferred to the Juvenile Justice Board, Bikaner (hereinafter referred to as “the JJ Board or the Board”). During the course of the trial, the petitioner obtained various documents relating to the accused under the Right to Information Act, 2005 such as school admission form; the copy of affidavit furnished by the father of the accused; transfer certificate; scholar register and mark-sheet of the matriculation, which depicted the date of birth of the accused to be 31.01.2001. 8. The petitioner moved an application dated 13.04.2022 before the JJ Board under Section 94(2) of the Act of 2015, which was rejected by the Board on 21.05.2022, interalia observing that the order whereby the POCSO Court had held the accused to be juvenile has attained finality. And since such order has been affirmed by the High Court vide order dated 16.03.2022, the Board was bound and that there was no power to review. 9. The petitioner assailed the order dated 21.05.2022 by way of another petition (S.B. Criminal Misc. Petition No. 4024/2022) under section 482 of the Code of Criminal Procedure, which too was dismissed by this Court per-viam order dated 09.09.2022. 10. While rejecting the petition, the Court observed that there was no error on part of the Board, as the powers which were sought to be exercised by the petitioner under Section 104 of the Act of 2015 did not permit the Board to review the order as prayed by the petitioner. 11. Faced with the above order dated 09.09.2022, the petitioner approached Hon'ble the Apex Court by way of filing a Special Leave Petition. 11. Faced with the above order dated 09.09.2022, the petitioner approached Hon'ble the Apex Court by way of filing a Special Leave Petition. An order dated 06.12.2022 came to be passed by Hon'ble the Supreme Court in which a liberty was granted to the petitioner for moving application for recalling/reviewing the order dated 16.03.2022. This is how, the application under consideration has come up before this Court. 12. Mr. Sevada, learned counsel for the applicant submitted that the present application has been filed pursuant to the observation made by the Hon'ble Apex Court and prayed that the same be considered in light of the peculiar facts obtaining in the present case. He added that appropriate order be passed with view to do substantial justice instead of getting into the technicalities of the application being maintainable or not. 13. Learned counsel invited Court's attention towards the documents which have been filed with the application and highlighted that all these documents in unison show that the date of birth of the respondent-accused is 31.01.2001. He submitted that the certificate issued on 05.03.2014 by the Municipal Corporation, Bikaner is forged or has been obtained fraudulently, hence, the same cannot be looked into or relied upon. 14. He argued that the State and its machinery has failed to undertake requisite exercise of collecting the school record and scholar certificate etc. and had the Investigating Officer took the trouble of collecting the same from the concerned Institutions, perhaps, things would have been different. 15. Mr. Bhati, learned Public Prosecutor, on the other hand, submitted that so far as the Investigating Officer is concerned, he cannot be held to be wanting in any manner, inasmuch as he had filed the charge-sheet treating the accused to be a major and it was only before the POCSO Court that an application came to be moved by the accused on the basis of the certificate of Municipal Corporation claiming juvenility. 16. In light of the documents which the applicant (father of the victim) has produced, on 04.07.2023 this Court had directed the Investigating Officer to examine these documents and furnish a report. 17. 16. In light of the documents which the applicant (father of the victim) has produced, on 04.07.2023 this Court had directed the Investigating Officer to examine these documents and furnish a report. 17. Learned Public Prosecutor in turn submitted that the Investigating Officer has obtained certified copies of the documents which the applicant has produced and has found that the date of birth of the respondent-accused as claimed by the applicant is correct his actual date appears to be 31.01.2001. 18. Mr. Choudhary, learned counsel appearing for the respondent-accused too was heard. Learned counsel produced a few more original mark-sheets issued by the very same school and highlighted that different dates are mentioned on such certificates. 19. Upon perusal of the mark-sheets produced by Mr. Choudhary, this Court is of the prima-facie view that the same have been tampered with to change the originally inscribed date of birth. 20. Having heard learned counsel for the parties and upon perusal of the record, this Court is of the view that no technicality should come in way of securing the ends of justice. Section 482 of the Code of Criminal Procedure confers upon this Court, inherent powers to do substantial justice, as has been craved by the petitioner. 21. The applicant (father of the victim), who did not have an occasion to obtain and produce these documents cannot be deprived of his right to bring them to light. As earlier order dated 17.02.2022 was passed by the POCSO Court on the basis of certificate issued by the Municipal Corporation produced by the accused and the school record and other documents mentioned in clause (i) of Section 94(2) of the Act of 2015 were not available, the certificate issued by the Municipal Corporation was relied upon by the POCSO Court and in the backdrop of such fact, this Court rejected prayer of the present petitioner to conduct medical age determination test or ossification test of the accused. It is, therefore, clear that the order dated 17.02.2022 was affirmed by this Court on entirely different ground. 22. On going through the documents and report given by the Investigating Officer, a reasonable doubt regarding the age of the accused has arisen. It is, therefore, clear that the order dated 17.02.2022 was affirmed by this Court on entirely different ground. 22. On going through the documents and report given by the Investigating Officer, a reasonable doubt regarding the age of the accused has arisen. Hence, without recording any finding in relation to the date of birth of the respondent-accused, this Court is of the view that the applicant has made out a prima-facie case for conducting an inquiry as contemplated under Section 94(2) of the Act of 2015. 23. The Juvenile Justice Board, Bikaner is, therefore, directed to determine the age of respondent-accused on the basis of the documents furnished before this Court. The applicant (father of the victim) shall produce copies of the relevant documents, whereupon the Board shall determine the age of the respondent-accused. 24. It will be open for the respondent-accused also to produce relevant material and evidence in order to establish his claim of juvenility. 25. The JJ Board, Bikaner will first determine the age of the respondent-accused before proceeding further in the case pending before it. Requisite inquiry under Section 94(2) of the Act of 2015 be conducted by 30.09.2023. 26. While undertaking the exercise under Section 94(2) of the Act of 2015, the JJ Bord shall independently decide the age of the respondent-accused without feeling bound or influenced by any of the finding or observation made by this Court in the order instant or the orders dated 16.03.2022 and 09.09.2022. In case the accused is found to be major on the date of incident, the case shall be sent to the competent Court. Such Court shall commence the trial from the stage it was sent to JJ Board. 27. Needless to observe that the aggrieved party's rights to take legal remedies against such age determination shall stand reserved. 28. The present application stands disposed of.