Allahabad High Court
Ravindra Singh And Anr. vs State Of U.P. on 16 March, 2020
Author: Dinesh Pathak
Bench: Sunita Agarwal, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- CRIMINAL APPEAL No. - 1872 of 2011 Appellant :- Ravindra Singh And Anr. Respondent :- State of U.P. Counsel for Appellant :- Rajul Bhargava,Deepak Kumar Pandey,Noor Mohammad Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Dinesh Pathak,J.
(Order on application No.20 of 2019 dated 24.09.2019) Heard Sri Noor Mohammad learned counsel for the appellant No.2 Mahesh and Sri Jai Narayan learned A.G.A.-1 for the State.
We have heard learned counsel for the appellant on the application dated 24.09.2019 filed on behalf of the appellant No.2 Mahesh to take on record the order dated 25.08.2018 passed by the Juvenile Justice Board as an additional evidence and direct an inquiry with regard to the plea of juvenility raised by the applicant/appellant.
To ascertain the claim of the appellant seeking declaration of his juvenility, it would be pertinent to note certain relevant facts of the case.
An application dated 24.09.2019 supported by affidavit of brother of the appellant/applicant Rinku aged about 38 years has been filed herein stating that during pendency of the present appeal, the appellant moved an application through his counsel directly before the Juvenile Justice Board, Hathras for declaring him juvenile taking the plea that the appellant was born on 11.08.1991 and he studied upto Class III in Harcharan Lal Poorva Madhyamik Vidyalaya, Nai Ka Nagla, Hathras. The date of birth of the appellant was sought to be proved from the School Leaving Certificate dated 05.07.2018 appended as Annexure No.'1' to the affidavit accompanying the aforesaid application. It is contended that the Juvenile Justice Board after hearing both the parties and perusal of the documents appended by the appellant in support of his application, declared him juvenile by an order dated 25.08.2018. The copy of the said order has been brought on record by means of a supplementary affidavit dated 06.01.2019. It appears that when the matter came up for hearing before this Court on 19.09.2019 on the prayer made by the counsel for the appellant he was permitted to move a fresh application claiming juvenility in the present appeal. As a result of the direction issued by this Court vide order dated 19.09.2019, the appellant has moved the present application for the reliefs as noted above.
It is contended that the date of incident is 11.08.2008 and on the said date, the appellant was about 17 years old. It is then contended that an inquiry is to be conducted as per the procedure under the Juvenile Justice Act under the directions issued by this Court.
To the above application, a counter affidavit dated 14/26.11.2019 has been filed on behalf of the State to bring on record the order dated 25.08.2018 passed by the Juvenile Justice Board as also the copy of the mark sheet of Class III and the School Leaving Certificate dated 05.07.2018, the documents relied by the Juvenile Justice Board. It is pertinent to note that alongwith the supplementary affidavit dated 06.01.2019, sworn by the brother of the appellant, the copy of application dated 21.07.2018 moved by the appellant before the Juvenile Justice Board and the order dated 25.08.2018 passed by it have also been brought on record.
Considering the above documents, the questions for adjudication before this Court are:- (i) as to whether the appellant was justified in approaching the Juvenile Justice Board directly for making inquiry for declaring him juvenile on the date of the incident i.e. 11.08.2008, without moving any application, at the first instance in the instant appeal more so when the said fact was not disclosed to the Juvenile Justice Board. (ii) Second issue is about the legality and propriety of the order dated 25.08.2018 passed by the Juvenile Justice Board.
The issues before us have serious ramification, therefore, it would be apt to go through the entire Scheme of the Juvenile Justice Act alongwith the amendments in the statutory provision relating to Juvenile Justice (Care and Protection of Children) Act brought from time to time to understand the legal position prevailing on the date of the claim made by the appellant for declaring him juvenile. And further to examine the manner in which, inquiry has to be conducted by the Juvenile Justice Board. We would also be required to refer to the judicial pronouncements holding the field.
The Juvenile Justice Act' 1986 (Act No.53 of 1986) was incorporated by the Parliament as a result of ratification of the convention on the right of the Child, adopted on 20th November 1989 by the General Assembly of the United Nations. To achieve the objectives of the Convention, the Juvenile Justice (Card and Protection of Children) bill was introduced in the Parliament. On a review of the working of the Juvenile Justice Act' 1986, it was found that the justice system as available for adults was not suitable for being applied to a juvenile or the Child or anyone on their behalf including the police, voluntary organisations, social workers, or parents and guardians, throughout the country. An urgent need was felt for creating adequate infrastructure necessary for the implementation of the proposed legislation with a larger involvement of informal systems specially the family, the voluntary organisations and the community. An Act to consolidate and amend the law relating to juvenile in conflict with law and Children in need of care and protection, by providing proper care, protection and treatment, by catering to their development needs, and by adopting a Child-friendly approach in the adjudication and disposition of matters in the best interest of child and for their ultimate rehabilitation and for matters connected therewith or incidental thereto, was enacted w.e.f 30.12.2000, which is known as the Juvenile Justice (Care and Protection of Children) Act'2000 (56 of 2000) (in short 'The Act' 2000) Exhaustive amendment was brought in the Act' 2000 by the Amendment Act 33 of 2006 introduced w.e.f. 22.08.2006. Some relevant provisions of the Juvenile Justice Act' 2000 have also been amended in the year 2011. The relevant amendment dated 22.08.2006 for ready reference are to be quoted as under:-
"Section 2 (k) "juvenile" or "child" means a person who has not completed eighteenth year of age"
Section 2(l) "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence;';
Section 2(s) "probation officer" means an officer appointed by the State Government as a probation officer under the Probation of Offenders Act, 1958 (20 of 1958);"
Section 3 of 2000 Act reads as under:-
"Section 3 Continuation of inquiry in respect of juvenile who has ceased to be a juvenile.--Where an inquiry has been initiated against a juvenile in conflict with law or a child in need of care and protection and during the course of such inquiry the juvenile or the child ceases to be such, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile or a child."
Section 7-A providing procedure to be followed when claim of juvenility is raised before any Court is as under:-
"Section 7-A 7-A (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 inquiry, 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 recognised 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 sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.
The scope of Section 7-A of the Juvenile Justice Act' 2000 came up for consideration before the Apex Court in Ashwani Kumar Saxena vs State Of M.P1 and Anil Agarwala & another VS. State of West Bengal2.
In a previous decision in Dharmbir vs State(Nct Of Delhi) & another3, the effect of insertion of Section 7-A in the Act' 2000 w.e.f. 22.08.2006 was considered to hold as under:-
"12. At this juncture, it will be profitable to take note of Section 7A, inserted in the Act of 2000 with effect from 22nd August, 2006. It reads as follows: ---------------------------------------------------------------------------------------------------------------------------------------
Proviso to sub-section (1) of Section 7A contemplates that a claim of juvenility can be raised before any court and has to be recognised at any stage even after disposal of the case and such claim is required to be determined in terms of the provisions contained in the Act of 2000 and the rules framed thereunder, even if the juvenile has ceased to be so on or before the date of the commencement of the Act of 2000. The effect of the proviso is that a juvenile who had not completed eighteen years of age on the date of commission of the offence would also be entitled to the benefit of the Act of 2000 as if the provisions of Section 2(k) of the said Act, which defines "juvenile" or "child" to mean a person who has not completed eighteenth year of age, had always been in existence even during the operation of the 1986 Act. It is, thus, manifest from a conjoint reading of Sections 2(k), 2(l),7A, 20 and 49 of the Act of 2000, read with Rules 12 and 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 that all persons who were below the age of eighteen years on the date of commission of the offence even prior to 1st April, 2001 would be treated as juveniles even if the claim of juvenility is raised after they have attained the age of eighteen years on or before the date of the commencement of the Act of 2000 and were undergoing sentences upon being convicted."
In Anil Agarwal2, the order passed by the High Court in rejection of application of the appellant therein on the ground of being filed at the belated stage came up for consideration. It was held therein:-
"6. Having regard to the above provisions, we set aside the order passed by the High Court which is incompatible with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 and direct the trial court to first of all look into the question of juvenility, as claimed by the appellants herein and after disposal of the claim made by the appellants that they were minors on the date of the alleged incident, it shall proceed with the trial. In the event the trial court comes to a finding that the appellants were minors at the time of commission of the offence, it shall immediately send them to the Juvenile Justice Board concerned for considering their cases in accordance with the provisions of the 2000 Act. It is expected that these applications which have been filed on behalf of the appellants will be disposed of within three months from the date of receipt a copy of this order."
In Ashwani Kumar Saxena1 while examining the scope of Section 7-A of the Act, it was held that the said statutory provisions obliges the Court to make an inquiry under the Juvenile Justice Act regarding age of the accused/appellant on the date of incident.
As far as the scope and the manner of inquiry into the scheme of juvenility of an applicant is concerned, in exercise of powers conferred by Section 68 of the Juvenile Justice Act' 2000, the Central Government framed Rules namely Juvenile Justice (Care and Protection of Children) Rules, 2007 (In short referred as "the Rules' 2007), and it was provided therein that in case, the State has not framed any rule, the rules framed by the Central Government shall apply in every State till the time the State Government frames rules in consonance with the rules framed by the Central Government. It is pertinent to note that though the State of U.P. framed rules in the year 2004 after the Juvenile Justice Act' 2000 came into force but no fresh rules had been framed in consonance with the Model Rules' 2007 framed by the Central Government.
Rule 12 of the Model Rules' 2007 provided the procedure to be followed in determination of age as under:-
"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 (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 Ihe 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 not 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."
A question came up for consideration before the Apex Court in Abuzar Hossain @ Gulam Hossain vs State Of West Bengal4 as to when should a claim of juvenility be recognized and sent for determination when it is raised for the first time on the appeal or before the Apex Court. It was also examined as to what would be the effect when a claim of juvenility was raised in trial and appeal but not pressed and then pressed for the first time before the Apex Court or even raised for the first time after final disposal of the case. The three judges Bench of the Apex Court while dealing with the said issue in light of the provisions under the Juvenile Justice Act' 2000 and the Rules' 2007 has laid down in the report that the expression, ''any court' in Section 7A is too wide and comprehensive; it include the Apex Court. Even the Supreme Court Rules do not limit the operation of Section 7-A to the Courts other than the Supreme Court where the plea of juvenility is raised for the first time after disposal of the case. The position of law summarized therein is as under:-
"36 (i) A claim of juvenility may be raised at any stage even after final disposal of the case. It may be raised for the first time before this Court as well after final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in appeal court.
(ii) For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility.
(iii) As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rule 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further inquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters' list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard and fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh2 and Pawan8 these documents were not found prima facie credible while in Jitendra Singh10 the documents viz., school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7A and order an inquiry for determination of the age of the delinquent.
(iv) An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an inquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an inquiry into determination of age of the delinquent.
(v) The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in 2000 Act are not defeated by hyper-technical approach and the persons who are entitled to get benefits of 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.
(vi) Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at threshold whenever raised."
In his concurring judgment, Hon'ble Mr. Justice T.S. Thakur (as he then was) speaking for the Bench elaborated paragraph No.36 (iv) noted above to state that the said point sounds a note of caution that an affidavit of a parent or a sibling or other relative would not ordinarily suffice to trigger an inquiry into the question of juvenility of the accused, unless the circumstances of the case are so glaring that the court is left with no option except to record a prima facie satisfaction that a case for directing an inquiry is made out. It was observed that what would constitute a glaring case cannot be put in a strait jacket formula as the said question cannot be easily answered by enumerating exhaustively the situations where an inquiry may be justified even in the absence of documentary support for the claim of juvenility. As far as the words "physical appearance" of the accused used in Rule 12(2) of the Rules 2007 are concerned, the same has lost its efficacy with the passage of time in a case where claim of juvenility is made before the Apex Court, as longer the interval between the incident and the court's decision on the question of juvenility, the lesser the chances of the court making a correct assessment of the age of the accused. It was observed that where the claim is made before the Apex Court for the first time, the advantage of "physical appearance" of the accused is further reduced as there is considerable time lapse between the incident and hearing of the matter by the Court.
It was further observed that another situation in the matter of claim of juvenility where the accused does not have any evidence, showing his date of birth, by reference to any public document such as register of birth, certificate from school etc. may not be available as the accused was never admitted to any school was to be considered. It was observed that there may be cases in which accused may not be in a position to provide a birth certificate from the Corporation, the Municipalities or the Panchayat as the register of birth and death may not be maintained and if maintained may not be regular and accurate and at times truthful. The expression "absence" in Rule 12(3) of the Rules 2007 was considered in light of literal (dictionary) meaning of the said expression to hold that mere non-production of a document of registration of birth or certificate of school may not, therefore, disentitle the accused of the benefit of the Act nor can it tantamount to deliberate non-production giving rise to an adverse inference unless the Court in the peculiar facts and circumstances of a case is of the opinion that the non-production is deliberate or intended to mislead the Court or suppress the truth. It was held that approach at the stage of directing the inquiry has of necessity to be more liberal, lest, there is avoidable miscarriage of justice. It was held that while affidavits may not be generally accepted as a good enough basis for directing an inquiry, their non acceptance, however, is not rule of law but a rule of prudence. The Court would, therefore, in each case weigh the relevant factors, insist upon filing of better affidavits if the need so arises, and even direct, any additional information considered relevant including information regarding the age of the parents, the age of siblings and the like, to be furnished before it decides on a case-to-case, basis whether or not an inquiry under Section 7-A ought to be conducted. It will eventually depend on how the court evaluates such material for a prima-facie conclusion that the Court may or may not direct an inquiry.
In Om Prakash Vs. State of Rajasthan5, the question which arose for consideration before the Apex Court are:-
"(i) whether the respondent/accused herein who is alleged to have committed an offence of rape under Section 376 IPC and other allied sections along with a co-accused who already stands convicted for the offence under Section 376 IPC, can be allowed to avail the benefit of protection to a juvenile in order to refer him for trial to a juvenile court under the Juvenile Justice (Care and Protection of Children) Act, 2000 (shortly referred to as the ''Juvenile Justice Act') although the trial court and the High Court could not record a conclusive finding of fact that the respondent-accused was below the age of 18 years on the date of the incident?
(ii) whether the principle and benefit of ''benevolent legislation' relating to Juvenile Justice Act could be applied in cases where two views regarding determination of the age of child/accused was possible and the so-called child could not be held to be a juvenile on the basis of evidence adduced?
(iii) whether medical evidence and other attending circumstances would be of any value and assistance while determining the age of a juvenile, if the academic record certificates do not conclusively prove the age of the accused ? "
While dealing with the said questions, the Apex Court had observed that the Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a Special Court for holding trial of children/juvenile by the juvenile court as it was felt that children become delinquent by force of circumstance and not by choice and hence they need to be treated with care and sensitivity while dealing and trying cases involving criminal offence. It was held that procedure for determination of age of a person claiming juvenility has been provided under the Act read with the Rules. However, when the claim of juvenility was made the benefit of the principle of benevolent legislation can be made applicable in favour of only those delinquents who undoubtedly have been held to be a juvenile which leaves no scope for speculation about the age of the alleged accused. It was found by the Apex Court in that case that the trial court as well as the High Court could not arrive at any finding at all as to whether the accused was a major or minor on the date of the incident and yet gave the benefit of the principle of benevolent legislation to an accused whose plea of minority that he was below the age of 18 years itself was in doubt.
It was held that in such a situation, the scales of justice is required to be put on an even keel by insisting for a reliable and cogent proof in support of the plea of juvenility. It was held in paragraph No.'22' & '23' as under:-
"22. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled for this special protection under the Juvenile Justice Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice.
23. Hence, while the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority. Under such circumstance, the medical evidence based on scientific investigation will have to be given due weight and precedence over the evidence based on school administration records which give rise to hypothesis and speculation about the age of the accused. The matter however would stand on a different footing if the academic certificates ad school records are alleged to have been with held deliberately with ulterior motive and authenticity of the medical evidence is under challenge by the prosecution."
In Parag Bhati Vs. State of U.P.6, the point for consideration before the Apex Court was as to whether in the fact and circumstance of the said case as to when the date of birth mentioned in the matriculation certificate was doubtful, an ossification test can be the last resort to prove the juvenility of the accused?
The Court having gone through the scheme of Juvenile Justice Act (Section 2 and 7-A) as also the Rules 12 of the Rules 2007 held that under the statutory scheme, the Board is enjoined to take evidence by obtaining the matriculation certificate if available, and in its absence, the date of birth certificate from the school first attended and if the same is also not available then the birth certificate given by the local body. In case any of the above certificates are not available, then medical opinion can be resorted to.
Considering the decision of the Apex Court in Ashwani Kumar1, Abuzar Hossain4 Om Prakash5, it was held therein that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence atleast prima facie proves the same, he would be entitled to the special protection under the Juvenile Justice Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being minor, a casual or cavalier approach while recording as to whether the accused is a juvenile or not cannot be permitted. As the Court are enjoined upon to perform their duties with the object to protect the confidence of common man in the institution entrusted with the administration of justice.
It is, thus, held in paragraph Nos.'35' & '36' of the reports as under:-
"35. The benefit of the principle of benevolent legislation attached to the JJ Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well-planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue."
"36. It is settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness of date of birth, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain, an enquiry for determination of the age of the accused is permissible which has been done in the present case."
The position of law as laid down therein is that if the matriculation certificate is available and there is no other material to disprove the correctness of date of birth, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. However, in case of any doubt or contradictory stand being taken by the accused which raises a doubt on the correctness of date of birth recorded in the matriculation certificate, an inquiry for determination of age of the accused is permissible.
All the above decisions pertain to the procedure "for determination of the age" as provided in the Rules' 2007 which was framed by the Central Government in exercise of power under Section 68 of the Juvenile Justice Act' 2000, when claim of juvenility is raised before the Court.
The Juvenile Justice Act, however, has underwent a drastic amendment with the repeal of the Juvenile Justice Act' 2000 and enactment of the Juvenile Justice (Care and Protection of Children) Act' 2015 which has been brought into force on 15.01.2016.
This enactment was brought as it was felt that increasing cases of crime committed by the children in the age group of 16 to 18 years in the recent past made it evident that the provisions and system of Juvenile Justice Act' 2000 were ill equipped to tackle child offender in this age group. Numerous changes have been brought by re-enacting a comprehensive legislation to provide for general principles of care and protection of children, procedures in case of children in need of care and protection and children in conflict with law, rehabilitation and social re-integration measures for such children, adoption of orphan, abandoned and surrendered children, and offences committed against children.
In Juvenile Justice (Care and Protection of Children) Act' 2015, the definition of 'juvenile' under Section 2 sub section (35) reads as under:-
"juvenile" means the child below the age of 18 years.
The "child" and "child in conflict with law" has been defined in sub Section (12) & (13) of Section 2 as under:-
"child means a person who has not completed eighteen years of age"
"child in conflict with law means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence."
Sub section (14) of Section 12 defines "child in need of care and protection" whereas Sub-Section (9) defines "best interest of child".
The insistence in the existing legislation, i.e. Act' 2015 is to adopt a wholesome approach for ensuring proper care, protection, development, treatment and social integration of children in difficult circumstances by adopting a child friendly approach keeping in view the best interest of the child in mind.
The Juvenile Justice Board has been constituted under Section 7 of the Act' 2015. The Board's function and responsibilities provided under Section 8 of the Act shows that the Board constituted for any district shall have the power to deal exclusively with all the proceedings under the Act' 2015, relating to children in conflict with law in the area of jurisdiction of the Board. The functions and responsibility of the Board includes inquiry for declaring "a fit person regarding care of children in conflict with law and registration of FIR for offences committed against any child in need of care and protection".
Section 5 provides for continuation of inquiry in respect of any 'child' under the Act' 2015, even if during the course of such inquiry, the child completes the age of 18 years. This provision, thus, clarifies that the inquiry may be continued by the Board and orders may be passed in respect of a person as if that person had continued to be a child.
Section 6 provides that the date of commission of offence would be an equivalent date for treating a person as a child during the process of inquiry. It provides that, if any, person who has completed 18 years of age, and he is apprehended for committing an offence when he was below the age of eighteen years, then, such person shall, subject to the provision of this section, be treated as a child during the process of inquiry.
Section 25 provides that notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or Court on the date of commencement of this Act, shall be continued in that Board or Court as if this Act had not been enacted.
Section 94 provides the criteria of presumption and determination of age by the Committee or the Board on the appearance of a person before it and is relevant for our purposes. For ready reference, the same is reproduced as under:-
"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."
Section 101 provides for appeal by any person aggrieved by an order passed by the committee or the Board under the Act within 30 days of such order. Section 102 confers power on the High Court to call for the record of any proceeding in which any Committee or Board or Children's Court, or Court has passed an order, for the purpose of satisfying itself as to the legality or propriety of any such order and the High Court may pass such order in relation thereto as he thinks fits. Only rider is that no such order may be passed which may be prejudicial to any person without giving him a reasonable opportunity of being heard.
The procedure in inquiries, appeal and revision proceeding under the Act' 2015 has been provided in Section 103 as under:-
"103. Procedure in inquries, appeals and revision proceedings. (1) Save as otherwise expressly provided by this Act, a Committee or a Board while holding any inquiry under any of the provisions of this Act, shall follow such procedure as may be prescribed and subject thereto, shall follow, as far as may be, the procedure laid down in the Code of Criminal Procedure, 1973 for trial of summons cases.
(2) Save as otherwise expressly provided by or under this Act, the procedure to be followed in hearing appeals or revision proceedings under this Act shall be, as far as practicable, in accordance with the provisions of the Code of Criminal Procedure, 1973."
In exercise of power conferred by sub section (1) of Section 110 of the Act' 2015, the Central Government framed model rules known as the Juvenile Justice (Care and Protection of Children) Model Rules' 2016. The said rule provides for functions of the Board, procedure to be followed by the Board in relation to children in conflict with law and completion of any inquiry under sub section (1) of Section 103 of the Act.
Similarly, in exercise of the powers conferred by the proviso to sub section (1) of Section 110 of the Act 2015, the Governor of U.P. has framed rules in conformity with the Model Rules framed by the Government of India, known as as the Juvenile Justice (Care and Protection of Children) Rules' 2019. A careful comparison of both the Rules' 2016 framed by the Central Government and Rules' 2019 framed by the State of Uttar Pradesh, it is evident that there is no conflict or inconsistency in the same. As noted above, the rules provides for function of the Board, procedure in relation to children in conflict with law and children in need and care and protection as also the procedure for completion of any inquiry conducted by the Board in sub section (1) of Section 103 of the Act. Rule 90 of the Rules' 2019 framed by the State of U.P. provides as under:-
"90. (1) No child shall be denied the benefits of the Act and the rules made thereunder.
(2) The benefits referred to in sub-rule (1) shall be made available to all persons who were children at the time of the commission of the offence, even if they ceased to be children during the pendency of the inquiry or trial.
(3) While computing the period of detention or stay or sentence of a child in conflict with law, all such period which the child had already spent in custody, detention, stay or sentence of imprisonment shall be counted as a part of the period of stay or detention or sentence of imprisonment contained in the final order of the court or the Board."
Having exhaustively dealt with the Juvenile Justice Act and the rules framed thereunder from time to time, it is evident that the statutory provision in the matter of determination of age of the person brought before the Board is a complete code in itself. The Rule 12 of Rules' 2007 and Section 94 of the Act' 2015 deal with the said issue. The manner of inquiry into the matter of determination of age of the person provided in the above statutes, if compared, it is found that;-
(i) On the appearance of the person before the Board, the Board or the committee or the Court, as the case may be, has to decide the juvenility prima facie on the basis of "physical appearance" and has to record its observation stating the age of child as nearly as possible before proceeding to make an inquiry under Section 14 or Section 36 of the Act' 2015.
(ii) In case, the Committee or the Board has reasonable grounds to doubt the age of the person brought before it, in order to ascertain that whether he is child or not, the Committee or the Board has to undertake the process of age determination for which evidence has to be collected/placed/sought from the authority concerned.
(iii) The evidence to be collected by the Board or the Committee in the matter of determination of age of a person brought before it, are clearly enumerated in clauses (i) to (iii) of sub section (2) of Section 94 of the Act' 2015.
(iv) Sub section (3) of Section 94 attaches finality to the decision of the Board or the Committee in the matter of determination of age, subject to any challenge to its decision under Section 101 and 102 of the Act' 2015.
A careful reading of sub section (2) of Section 94 of the Act 2015 and Rule 12(3) of Rules 2007 shows that a little departure in the matter of taking evidence was made in the Act' 2015 as Rules' 2007 [Rule 12 (3)] gives primacy to the matriculation or equivalent certificate in sub clause (a)(i), whereas Section 94 treat both the date of birth certificate from the school or the matriculation or the equivalent certificate from the concerned examination Board at the same level/pedestal.
In the matter of consideration of evidence for determination of age of a child considering the language of Section 94 of the Act' 2015 (prevailing as on the date), the inquiry is to complete by seeking evidence from the concerned school or examination board, or the local body who issued the relevant certificate/document and only in the absence of such certificates, 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. That means, the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board has been given primacy over the birth certificate issued by the Corporation or a Municipal authority or a Panchayat. The medical opinion has been included as a last resort in such an inquiry, where no documentary evidences as noted above are available.
We may further note that there remained no dispute as to the stage of initiation of the said inquiry, in as much as, it is settled position in law that the claim of juvenility can be raised at any stage of the proceeding by a person even in the appeal court. But considering the position of law summarized in Abuzar Hossain4, it is evident that for making a claim of juvenility after conviction, the claimant has to produce some material before the appellate court so as to prima facie prove that an inquiry into the claim of juvenility is necessary. Initial burden in such a claim has to be discharged by the person who claims juvenility that too before the court where the lis is going on.
It is equally well settled that as to what would prima facie satisfy the Court cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility. However, the documents referred in sub section (2) of Section 94 of the Act' 2015 have to be treated as sufficient for prima faice satisfaction of the Court about the age of the delinquent to initiate an inquiry under the Act' 2015.
The Court before whom the matter is pending has to prima facie ascertain genuineness of the document brought before it to assess the convict being juvenile person at the time of commission of crime. The credibility and/ or acceptability of the documents noted above brought before the Court or obtained by the Board after conviction would depend on the fact and circumstances of each case and no strait-jacket formula can be prescribed as to how and when the Court can record its prima facie satisfaction or reject the claim of juvenility to initiate an inquiry. In any case, it is for the Court wherever the claim has been raised for the first time either in appeal or revision during the pendency of the matter to examine the documents brought before it to ascertain the genuineness of the plea and decide as to whether the same satisfies the judicial conscious of the Court to order an inquiry for determination of age of the accused. (Reference paragraph '39.3', '39.4' of Abuzar Hossain4) emphasis added. It has been held in Abuzar Hossain4 that while examining the plea of juvenility raised by an accused for the first time in appeal, the Court has to be alive to the objectives of the Juvenile Justice Act being benevolent legislation and to ensure that its purpose and object is not defeated by the hyper technical approach. However, at the same time, the claim of juvenility which lacks in credibility or frivolous claim of juvenility or patently absurd or inherently impossible claims of juvenility have to be rejected by the Court at the threshold whenever raised. (emphasis added).
This means if on a prima facie inquiry, the Court before whom the claim of juvenility is raised, finds that the claim is frivolous, bogus or absurd or improbable, it can reject the same at the threshold without referring to the inquiry before the Juvenile Justice Board as it would be a futile exercise and also abuse of the process of the Court. The reason being that a person who raised a claim has to approach a Court with clean hands and the process of law cannot be allowed to be abused at the hands of an unscrupulous person.
We may note that lot of time of the Appellate Court is wasted in sending the matter to the Juvenile Justice Board for inquiry, if such an inquiry is ordered in a casual manner. In many appeal hearing is prolonged on account of such frivolous claims. We may clarify that we may not be misunderstood so as to infer that every claim made before the Appellate Court can be rejected out-rightly or has to be viewed with great circumspection. Our emphasis is that before relegating the matter to the Juvenile Justice Board for making an inquiry in accordance with the statutory scheme, the Appellate Court may examine the record to make a prima facie satisfaction as to whether the claim is genuine or not. If upon such an inquiry, the Court finds that the document, brought before it to raise a claim for juvenility are not genuine or manufactured documents or insufficient to direct for inquiry by the Board, it can reject the application out- rightly seeking relegation to the Juvenile Justice Board for determination of age of the appellant. This conclusion of ours is based upon the decision of the Apex Court in Abuzar Hossain4.
Our view is further fortified from the decision of the Apex Court in Om Prakash5, Parag Bhati6 wherein the Apex Court has observed that the claim of juvenility cannot be allowed to be raised merely to create a mist or a smokescreen to seek shelter by using it as a protective umbrella or Statutory shield. The provisions of a benevolent legislation (Juvenile Justice Act) cannot be used to subvert or dupe the cause of justice.
As observed by the Apex Court in Ramdeo Chauhan Vs. State of Assam7, the Courts are enjoined upon to perform their duties with the object of strengthening the confidence of the common man in the institution entrusted with the administration of justice. Any effort which weakens the system or shakes the faith of the common man in the justice dispensation system has to be discouraged. The plea of juvenility when made a shield to dodge or dupe the arms of law, cannot be allowed to come to the rescue of a claimant.
We also find that the claim of juvenility whenever raised has to be finally determined by the Juvenile Justice Board within the parameters prescribed in the Act' 2015 read with the Rules framed thereunder.
As far as the inquiry by the Board, it has been mandated to make an inquiry based on the evidence and there is no scope of speculation. The document such as school leaving certificate, the mark sheet and the birth certificate etc. are to be treated as relevant documents for directing an inquiry and verification of the age of the person concerned.
The inquiry has to be strictly made in accordance with the statutory provision (Section 94 of the Act' 2015) and no deviation or departure in this regard is permissible. The Juvenile Justice Board while making an inquiry has to necessarily satisfy itself about the genuineness of the claim by summoning necessary documents from the School or the Board concerned. The genuineness of the documents appended with the application to claim juvenility has also to be ascertained by the Board. No doubt, roving or fishing inquiry cannot be done by the Board but inquiry regarding due execution of the document(s) relied upon by the applicant has to be made by summoning necessary original records from the School or the Board concerned, as the case may be. The authenticity or genuineness of the School leaving certificate with reference to the date of admission and the date of leaving school, the Class of study and other surrounding circumstances has to be ascertained with reference to the material particulars obtained from the concerned school. Similarly genuineness of the mark sheet or the birth certificate placed before the Board to assert the claim of juvenility has to be verified from the examination board or the School which had issued the document/certificate. Such an inquiry is necessary so that no unscrupulous person can get benefit of such a benevolent legislation. In any case, cavalier or casual approach by the Board in the matter of inquiry to grant benefit of benevolent legislation under the Juvenile Justice Board cannot be accepted.
To substantiate the above, we would be benefited by the following observation of the Apex Court in Om Prakash5 and Parag Bhati6 as under:-
"(Om Prakash)5 para 37.....................Juvenile Justice Act which undoubtedly is a benevolent legislation but cannot be allowed to be availed of by an accused who has taken the plea of juvenility merely as an effort to hide his real age so as to create a doubt in the mind of the courts below who thought it appropriate to grant him the benefit of a juvenile merely by adopting the principle of benevolent legislation but missing its vital implication that although the Juvenile Justice Act by itself is a piece of benevolent legislation, the protection under the same cannot be made available to an accused who in fact is not a juvenile but seeks shelter merely by using it as a protective umbrella or statutory shield. We are under constraint to observe that this will have to be discouraged if the evidence and other materials on record fail to prove that the accused was a juvenile at the time of commission of the offence."
"(Parag Bhati)6 para 35. The benefit of the principle of benevolent legislation attached to the JJ Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidene regarding his minority as the benefit of the possibilities of two vies in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well-planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dube the arms of law, cannot be allowed to come to his rescue."
It was held that in a case of commission of heinous crime, the plea of juvenility cannot be allowed to be raised merely on a doubtful School admission record. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled for the special protection under the Juvenile Justice Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice. (Reference para '22' in Om Prakash) (emphasis added).
In this context only, the Apex Court in Om Prakash5 drawn a parallel between the plea of minor or plea of alibi to observe as under:-
"32. Drawing parallel between the plea of minority and the plea of alibi, it may be worthwhile to state that it is not uncommon to come across criminal cases wherein an accused makes an effort to take shelter under the plea of alibi which has to be raised at the first instance but has to be subjected to strict proof of evidence by the court trying the offence and cannot be allowed lightly in spite of lack of evidence merely with the aid of salutary principle that an innocent man may not have to suffer injustice by recording an order of conviction in spite of his plea of alibi.
33. Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him."
While considering the nature of inquiry, it was observed in paragraph No.'34' in Om Prakash5 that the benefit of benevolent legislation under the Juvenile Justice Act obviously will offer protection to a genuine child accused/juvenile whose claim is not based on shaky evidence like the school admission register or oral evidence based on the conjectures leading to further ambiguity and by putting the Court into any dilemma on adducing evidence in support of the plea of minority. Such an evidence cannot be relied upon to grant benefit of the Juvenile Justice Act.
In the same context, while considering the relevance and value of medical evidence in the inquiry by the Board in Ramdeo Chauhan7 the Apex Court has observed that:-
"21. ......................The doctor has opined the age of the accused to be admittedly more than 20 years and less than 25 years. The statement of the doctor is no more than an opinion. the court has to base its conclusions upon all the facts and circumstances disclosed on examining of the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. An X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate a test as to indicate the exact date of birth of the person concerned. Too much of reliance cannot be placed upon text books, on medical jurisprudence and texicology while determining the age of an accused. In this vast country with varied latitude, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform." (emphasis supplied) "22. ....................there is not an iota of doubt in my mind to hold that the petitioner was not a child or near or about the age of being a child within the meaning of the Juvenile Justice Act or the Children Act. He is proved to be a major at the time of the commission of the offence. No doubt, much less a reasonable doubt is created in the mind of the Court, for the accused entitling him the benefit of a lesser punishment. It is true that the accused tried to create a smoke screen with respect to his age but such efforts appear to have been made only to hide his real age and not to create any doubt in our mind. The judicial system cannot be allowed to be taken to ransom by having resort to imaginative and concocted grounds by taking advantage of loose sentences appearing in the evidence of some of the witnesses, particularly at the stage of special leave petition. The law insists for finality of judgments and is more concerned with the strengthening of the judicial system. The courts are enjoined upon to perform their duties with the object of strengthening the confidence of the common man in the institution entrusted with the administration of justice. Any effort which weakens the system and shakens the faith of the common man in the justice dispensation system has to be discouraged."
"23. After committing the crime of murder of four innocent persons, the petitioner cannot be permitted to resort to adopt means and tactics or to take measures which, if accepted or condoned, may result in the murder of the judicial system itself. The efforts made by the accused by way of this petition, are not likely to advance the interests of justice but on the contrary frustrate it."
From the analysis of the statutory provision and the judicial pronouncements holding to the field noted above. We find that once the Statute provides complete procedure and manner of inquiry and enumerates the material evidence which could be considered in inquiry, no deviation is permissible in the course of inquiry. The Juvenile Justice Board or the Committee, as the case may be, has to strictly follow the procedure and the manner in which inquiry has to be conducted.
It is evident that as far as medical evidence is concerned, the same has been considered as a last resort in the matter of determination of age. The reason being that the doctor's estimation of age is merely an opinion though based on scientific medical test like ossification and radio-logical examination. In absence of all other acceptable materials, if such opinion points to a reasonable possibility regarding the range of age of the person it has to be considered having corroborative value while determining the age of the alleged juvenile accused. The medical evidence neither can be given primacy nor such a course can be resorted to lean in favour of an accused claiming juvenility who relied upon documentary evidences such as academic record to determine his age or declare him juvenile. If the documents pertaining to academic record of the accused are filed to state that the accused had gone to the school and his date of birth was duly recorded in the school admission register or the academic record, then genuineness/authenticity of such a claim has to be ascertained instead of resorting to ascertain his age by getting medical opinion. The legislative intent to give primacy to the school record regarding the date of birth and the mark sheet containing the said information is clear and categorical. The medical opinion, if obtained, can only be of corroborative value in case of any doubt in the minds of the courts on the documentary evidences. The question whether the medical evidences should be relied upon or not will obviously depend on the value of the evidence laid by the contesting party. Thus, in an inquiry into the claim of juvenility, the Juvenile Justice Board has to examine each case within the parameters of the legislation by making a careful scrutiny regarding the genuineness of the claim.
In light of the above, while examining the facts of the present case we find that during pendency of the instant appeal, an application dated 21.07.2018 was moved by the appellant directly before the Juvenile Justice Board without disclosing the fact of pendency of the present appeal. The said application, found on record, states in a casual manner that the applicant was convicted by the Sessions Court vide judgement and order dated 11.03.2011 under Section 302/34 IPC and sentenced for imprisonment for life alongwith fine and that the applicant was languishing in jail and was juvenile on the date of the incident which is 11.08.2008. It was then stated therein that the appellant had studied upto Class III in Harcharan Lal Poorva Madhyamik Vidyalaya, Nai Ka Nagla, Hathras. This application was supported by the affidavit of brother of the appellant. A perusal of the record of the Juvenile Justice Board indicates that on presentation of such an application, without making any inquiry regarding pendency of the instant appeal or without any direction of this Court, the Juvenile Justice Board had proceeded to make an inquiry into the claim of juvenility of a convicted accused. We note our displeasure on such a casual approach being adopted by the Juvenile Justice Board. Had the decision of the Apex Court in Abuzar Hossain4 been kept in mind, the Juvenile Justice Board would have relegated the appellant to approach this Court by moving a proper application to raise his claim of juvenility in the instant appeal.
It appears that for this reason, this Court while passing the order dated 19.09.2019 allowed the appellant to move a fresh application for claiming juvenility in the present appeal. The application dated 24.09.2019 has thus, been moved by the appellant appending the school leaving certificate issued on 05.07.2018 noticing the date of birth of the appellant as 11.08.1991.
We may also note that the plea of juvenility put forth by the appellant herein is based on the same document into which an inquiry had already been conducted by the Juvenile Justice Board though without any order or direction of this Court or any reference to the instant pending appeal. We are, therefore, are not inclined to entertain the plea of the learned counsel for the appellant to relegate the matter for ascertaining the claim of juvenility of the appellant afresh.
We have heard the learned counsel for the appellant and the learned AGA on the merits of the order of the Juvenile Justice Board.
As to the power to examine the validity of the order of the Juvenile Justice Board in appeal, we may draw such power in Section 102 of the Act' 2015 which confers supervisory revisional jurisdiction on the High Court to call for the records of any proceeding conducted by the Board on its own motion so as to satisfy itself with regard to the legality or propriety of an order passed in such proceeding.
Drawing source from the above provision, we have summoned the original record of the Juvenile Justice Board and having examined the same we find that the Board has adopted a completely casual approach in making the inquiry. Two witnesses namely a teacher Sahab Singh and mother of the appellant had appeared in the witness box as EPW-1 and EPW-2. Sahab Singh made a statement that the appellant was admitted in the School in July 1999 when his date of birth was recorded as 11.08.1991. The admission form was filled by his father and he was duly granted admission. In S.R. register (scholar register) at serial No.3488, name of the appellant is recorded and he had passed Class III on 20.05.2000. The duplicate copy of the transfer certificate was issued to the father of the appellant on 05.07.2018 which was on record. This witness was cross-examined by the public prosecutor and he has reiterated that the transfer certificate dated 05.07.2018 was issued by him which records date of birth of the appellant as 11.08.1991 and all entries in the said document are based on the records available in the School office. It appears that the applicant had filed original copy of the School Leaving Certificate and the self attested photo stat copy of the admission register.
Considering the above evidences, the Juvenile Justice Board believing the date of birth of the applicant as 11.08.1991 recorded that as it appears that on the date of incident i.e. 11.08.2008, the appellant was aged about 17 years and being less than 18 years, he was declared juvenile.
From the above, it is evident that the Juvenile Justice Board has not conducted proper inquiry in the matter of age determination of the application, as genuineness or authenticity of the duplicate copy of the School Leaving Certificate by obtaining original academic record from the School has not been ascertained. The teacher/principal of the institution had only verified issuance or execution of the duplicate copy of the transfer certificate, which was issued during pendency of the present appeal on 05.07.2018. It is not known nor proved as to when the original copy of the transfer certificate was issued to the appellant or his parent and why the occasion had arisen for issuance of the duplicate copy of the transfer certificate on 05.07.2018. The Juvenile Justice Board has not ascertained from the School records that the appellant was admitted in the School concerned in July 1989 and had passed Class III on 20.05.2000. The said fact has been held proved only on the basis of statement of the Principal/Teacher namely Sahab Singh examined as EPW-2.
Even accepting his statement, the said witness examined as EPW-2 has simply proved execution of the School Leaving Certificate dated 05.07.2018 in his own handwriting and signature but did not prove the relevant entries in the same by bringing the material documents before the Juvenile Justice Board such as the Original Scholar Register, the admission register and the register for issuance of the transfer certificate (both original and duplicate). The self attested photo stat copy of the admission register produced by the applicant/appellant on his own was inadmissible in evidence as it was not verified from the original brought by the competent person, who is custodian of the said document. The statement of the Principal/teacher of the institution cannot be taken as a gospel truth and, moreover, has only corroborative value of due execution of the documents brought on record.
The statement of EPW-1 cannot be treated as sufficient evidence to attach genuineness to the duplicate copy of the transfer certificate dated 05.07.2018 filed in evidence as a proof of date of birth of the accused/appellant.
Moreover, the Statue requires that the Board shall conduct an inquiry (in the matter of determination of age) by summoning evidences from the School authorities as the words used in sub section (2) of Section 94 are "by seeking evidence by obtaining" the birth certificate from the school, or the matriculation certificate from the concerned Board of examination. The documents brought on record were to be verified by the Juvenile Justice Board from the School and from the Board concerned by summoning the original register such as admission register, scholar register and other relevant academic records before returning its finding to determine the age of the applicant. The casual and cavalier approach of the Juvenile Justice Board in granting the benefit of benevolent legislation of the Juvenile Justice Act to the applicant/accused appellant cannot be approved of. The statement of mother of the applicant cannot have any corroborative value in light of the requirements of the legislation for conducting an inquiry for determination of age.
As we find that sufficient evidences were not before the Juvenile Justice Board and it has proceeded to declare the appellant/applicant juvenile on inadmissible evidence such as original (duplicate) school leaving certificate and self attested copy of the admission register produced by the applicant, the order dated 25.08.2018 passed by it allowing the claim of juvenility of the applicant on the date of the incident is liable to be set aside.
We, therefore, find that the order dated 25.08.2018 cannot be sustained and is, accordingly, being set aside.
Now on the question as to whether the matter is to be relegated to the Board for fresh decision, we find that while raising the plea of juvenility in the application dated 21.07.2018, supported by the affidavit of the brother of the applicant, it is not indicated as to when and why the appellant had left the school after he took admission in July 1999 in Class III in the school-in-question. It is not disclosed as to whether the appellant had attended any school prior to Class III. It is also not disclosed as to whether the appellant had studied further or had appeared in the matriculation examination which could have been undertaken by him either in the Academic Session 2006-07 or 2007-08, which fall prior to the date of the incident, which is 11.08.2008 in the instant case. It is also not disclosed as to whether the appellant was studying and if so, in which class at the time of the incident or when he had left his studies. The application to raise claim of juvenility is silent on all these aspect. Further, we may note here that the appellant has not come up with clean hands in the matter of raising claim of juvenility as he did not move any application in the instant appeal at the first instance. The action of the appellant in approaching the Juvenile Justice Board directly without disclosing the pendency of the present appeal proves that his claim is not genuine. Further the ignorance shown by the Juvnile Justice Board in the proceeding for inquiry about the fact of pendency of the appeal is liable to be condemned.
We may record, at the cost of repetition, that an unscrupulous person who is trying to cover his misdeed under the shield of juvenility by raising a false and frivolous claim cannot be allowed to use the process of law as a tool. A person who is claiming the benefit of benevolent legislation under the Juvenile Justice Act has to approach the competent court with clean hands. In the instant case, it was required for the appellant to move an application raising the claim of juvenility by bringing necessary material before the appellate court who after recording prima facie satisfaction on the material before it could have relegated the matter for detail inquiry by the Juvenile Justice Board, strictly in accordance with the provisions of Juvenile Justice Act.
All this has not been done in the instant case. Further on careful scrutiny of the material before us, we are unable to record any prima facie satisfaction regarding the claim of the appellant being juvenile on the date of the incident i.e. 11.08.2008. The material brought before us do not inspire our confidence. We do not find it just, fit and proper in the facts and circumstances of the instant case to relegate the matter to the Juvenile Justice Board for making fresh inquiry into the claim made by the applicant as such an exercise would be an exercise in futility. Further we are convinced that the appellant has not approached this Court with clean hands and the plea of juvenility has been raised as a shield to cover his misdeeds that too by placing reliance on insufficient material.
In the totality of facts and circumstances of the instant case, we do not find any merit in the application dated 24.09.2019 filed with the prayer to take the order of the Juvenile Justice Board dated 25.08.2018 on record or to treat the same as an additional evidence to direct a full-fledged inquiry regarding the claim of juvenility raised by the applicant/appellant.
The application No.20 of 2019 dated 24.09.2019 is found misconceived and is rejected as such.
Order date:-16.03.2020 Himanshu Court No. - 42 Case :- CRIMINAL APPEAL No. - 1872 of 2011 Appellant :- Ravindra Singh And Anr.
Respondent :- State of U.P. Counsel for Appellant :- Rajul Bhargava,Deepak Kumar Pandey,Noor Mohammad Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Dinesh Pathak,J.
The hearing of the appeal has been delayed since 2018 on account of the application moved by the appellant. The appeal is of the year 2011. We propose to proceed for hearing of the appeal for final disposal.
Lower court record has been received.
Office is directed to prepare the paper book within three weeks from today. The copy of the same be obtained by the learned Advocate for the appellant on payment of usual charges, immediately thereafter.
List this matter for final hearing/disposal on 13.04.2020.
Order date:-16.03.2020 Himanshu