Jharkhand High Court
Bimal Gorai vs The State Of Jharkhand on 6 May, 2015
Author: R.N. Verma
Bench: Ravi Nath Verma
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 244 of 2015
Bimal Gorai, son of Ghotlu Gorai @ Dhulu Gorai
resident of at Baghmara Tola, Kali Mandir, Post Office & Police
Station Balipapur District Dhanbad (Jharkhand) .
... ... ... Petitioner
Versus
The State of Jharkhand ... ... ... Opp. Party
CORAM: HON'BLE MR. JUSTICE RAVI NATH VERMA
For the Petitioner : Mr. Pratiyush Lala, Advocate
For the State : Mr. K.K. Mishra, A.P.P.
C.A.V. ON: 29.04.2015 PRONOUNCED ON: 06.05.2015
By way of this revision application, the petitioner Bimal
Gorai takes exception to the order dated 19.02.2015 passed by
learned Additional Sessions JudgeV, Dhanbad in Sessions Trial
No.463 of 2012 whereby and whereunder the petition filed by the
petitioner under Section 7(A) of the Juvenile Justice (Care and
Protection of Children) Act, 2000 (hereinafter referred to as the Act)
read with Rule 12 of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 (hereinafter referred to as the Rules) for
declaring him Juvenile, has been rejected.
2. It appears from the record that on the basis of a written
report of the informant (14 years old girl), the First Information
Report was lodged on 14.06.2012 at 10.00 p.m. on the allegation
that while the informant was playing outside her house alongwith his
younger brother, the accused, who is the present petitioner, asked
her to bring water in 'Lota" and when the informant brought water,
the accused forcibly took her inside his room and closed the door and
committed rape upon her and when her brother reached, alarmed for
help and called her mother, the accused did not open the door and
after some time he threw the victim out of the room and again closed
the room and when the father of the informant came back, the
matter was reported to the police station.
2 Cr. Revision No.244 of 2015
3. It further appears that during pendency of the trial, a
petition was filed at the instance of the petitioner under Section 7(A) of
the Act read with Rule 12 of the Rules claiming himself to be a Juvenile
on the date of occurrence i.e. 14.06.2012. It was also stated in the said
petition that the petitioner never attended any school and as such he
has no school certificate whatsoever and his case may be referred to
Medical Board for assessment of his age. But it appears that no order
was passed on the said petition dated 07.10.2014 filed by the petitioner
rather the court proceeded with the trial. It further appears that during
his jail custody the petitioner appeared in Matriculation examination in
April, 2014 from jail through National Institute of Open School running
under the Government of India and the petitioner was declared
successful in the said examination and in the certificate issued by the
said school, his date of birth was mentioned as 09.06.1995. After
receiving the said Matriculation certificate, the petitioner again filed a
petition on 07.01.2015 for determination of his age claiming his
juvenility relying upon the date of birth given in the said certificate and
this time the court below rejected his both the applications dated
07.10.2014and 07.01.2015 by the impugned order holding as follows: "From it's perusal it transpires that both the petitions filed by the accused for declaring him 'juvenile' is self contradictory in nature and there is no consistency in the plea of the accused. The trial is at the fag end and the accused never objected regarding his age since long. Accused has not come before the court with clean hands. So, there is no need of any inquiry regarding the age of accused because the J.M. has had ascertained the age of accused as 21 years at the time of his first remand. Not only that in the memo of arrest the age of the accused has been mentioned as 21 years and the witnesses in the memo of arrest are the sister and brotherinlaw of the accused and they have also not objected at that time regarding the age of the accused. The case of the accused is not a marginal case regarding his age and he is 21 years old as assessment made by the Judicial Magistrate at the time of his remand. Hence, the petitions filed by the accused dated 07.10.2014 and 07.01.2015 being self contradictory stands rejected."
4. Learned counsel appearing for the petitioner seriously contended that the court below while passing the order ignored the 3 Cr. Revision No.244 of 2015 Provisions of Act and Rules as envisaged in Section 7(A) of the Act and Rule 12 of the Rules, 2007. It was also submitted that the sub Rule (3)
(b) of Rule 12 clearly stipulates that in absence of any certificate the court will direct the assessment of age by duly constituted Medical Board but the court below on mere conjecture and surmises and relying upon assessment of age of the petitioner at the time of remand, rejected his prayer. Learned counsel in support of his contention has relied on Shah Nawaz v. State of U.P. (2011) 13 SCC 751 and Vicky Sao Vs. State of Jharkhand: 2008(3)JLJR 203.
5. Contrary to the aforesaid submissions learned counsel representing the State submitted that the question of juvenility was raised by the petitioner at a belated stage and the court below rightly relied upon the age as assessed by the Judicial Magistrate at the time of his remand and there is no plausible ground to interfere in the order impugned.
6. In Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750 while explaining the scope of Section 7(A) of the Act of 2000 and Rule 12 of Rules 2007 in Para 24 of the judgment held as follows: "24. We may, however, point out that none of the abovementioned judgments referred to earlier had examined the scope, meaning and content of Section 7A of the Act, Rule 12 of the 2007 Rules and the nature of the inquiry contemplated in those provisions. For easy reference, let us extract Section 7A of the Act and Rule 12 of the 2007 Rules:
"7A. Procedure to be followed when claim of juvenility is raised before any Court(1) Whenever 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 enquiry, 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 subsection (1), it shall 4 Cr. Revision No.244 of 2015 forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a Court shall be deemed to have no effect.
"12. 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 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 the juvenile in conflict with law.
The Hon'ble Supreme Court in Para 30, 31, 41 & 42 has further held:
30. Consequently, the procedure to be followed under the JJ Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules, We cannot 5 Cr. Revision No.244 of 2015 import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the Court exercising powers under Section 7A of the Act. In many of the cases, we have come across, it is seen that the Criminal Courts are still having the hangover of the procedure of trial or inquiry under the Code as if they are trying an offence under the penal laws forgetting the fact that the specific procedure has been laid down in Section 7A read with Rule 12.
31. We also remind all Courts/Juvenile Justice Boards and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate, etc. mentioned in Rules 12(3)(a)(i) to (iii) The Courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection.
41. This Court in Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266 held, in a case where the accused had failed to produce evidence/certificate in support of his claim, medical evidence can be called for. The Court held that:
22. the medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence.
This Court set aside the order of the High Court and remitted the matter to the Chief Judicial Magistrate heading the Board to redetermine the age of the accused.
42. In Shah Nawaz v. State of U.P. (2011) 13 SCC 751 the Court while examining the scope of Rule, 12, has reiterated that medical opinion from the Medical Board should be sought only when matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended or any birth certificate issued by a corporation or a municipal authority or a panchayat or municipality is not available. The Court had held that entry related to date of birth entered in the marksheet is a valid evidence for determining the age of the accused person so also the school leaving certificate for determining the age of the appellant.
7. Apparently, in the case at hand, the petitioner in clear terms had stated that he had never studied in any school and so he has no school certificate or any certificate issued by any authority and stating that fact a petition for declaring him juvenile was filed on 07.10.2014. In Rule 12 of Rule 2007. There is clear mandate that the Court in every case concerning a child or a juvenile inconflict with law as referred in 6 Cr. Revision No.244 of 2015 Rule 19 shall determine the age of such juvenile or child or a juvenile inconflict with law within a period of 30 days from the date of making of the application for that purpose but no order was passed by the court concerned on a petition dated 07.10.2014 filed by the petitioner. After the said period, as it appears, the petitioner appeared in Matriculation examination conducted by National Institute of Open School running under Government of India and he was declared successfully in the said examination and in the said certificate, the date of birth of this petitioner was mentioned as 09.06.1995. Relying on the said date of birth, the petitioner again filed a petition in the court below on 07.01.2015. Obviously, the court below has been clearly mandated under the Act and Rule to pass order on the first petition within 30 days but no order was passed within that period. Whereafter the second petition was filed for determination of the age and by the impugned order both the petitions have been disposed of as indicated above without following the mandate of the Act and Rules that in absence of either (i), (ii) or (iii) of Clause A of sub Rule (3) of Rule 12 the medical opinion will be sought from duly constituted Medical Board which will declare the age of the juvenile.
8. Hence, I am constrained to hold that the order impugned being not in consonance with the provisions of the Act and Rules, is fit to be set aside.
9. The revision application is, accordingly, allowed and the order impugned dated 19.02.2015 passed by learned Additional Sessions JudgeV, Dhanbad in Sessions Trial No.463 of 2012 is, hereby, set aside and the matter is remanded back to the court with a direction to pass order on the petition filed by the petitioner in accordance with law in the light of observation made above.
(R.N. Verma, J.) Anit