Allahabad High Court
Ranjeet vs State Of U.P. on 25 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:12939 Court No. - 82 Case :- CRIMINAL REVISION No. - 1766 of 2021 Revisionist :- Ranjeet Opposite Party :- State of U.P. Counsel for Revisionist :- Janmed Kumar Counsel for Opposite Party :- G.A. Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri Janmed Kumar, learned counsel for the revisionist and learned AGA for the State.
2. This criminal revision under section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 has been filed by the revisionist/accused, against the State (the respondent no.1) and the first informant (the respondent no. 2), with a prayer that the order dated 27.01.2016, by which the accused was declared above 18 years of age and therefore the case against him was transmitted to the Special Judge, SC/ST Act for trial, passed by the Juvenile Justice Board, Mainpuri in case crime no. 1962 of 2011 under section 302/34 IPC, Police Station Kotwali, District Mainpuri, be set aside and further the order dated 06.03.2021 passed in Criminal Appeal No. 2016 whereby the appeal was dismissed and the order passed by the Juvenile Justice Board was confirmed, be also set aside.
3. The relevant facts are as below:
The accused Ranjeet was found involved in case crime no. 1962 of 2011 under section 302/34 IPC and is facing trial before the Additional Session Judge/Special Judge SC/ST Act. During the course of proceedings, he moved an application with the submission that on the date of the incident, he was merely 17 years 4 months and 18 days of age, therefore his case may be sent to the Juvenile Justice Board. The court concerned passed an order on 26.08.2015 directing the Juvenile Justice Board to conduct a proceeding for determination of age. In the proceeding for determination of age, the accused produced copy of parivar register, wherein his date of birth was shown as 07.06.1994. On the request of the accused, Gram Panchayat Adhikari was summoned and examined as CW1. The witness testified that the name of the accused was mentioned at serial no. 27 of the parivar register and that his date of birth was mentioned as 07.06.1994. He further testified that his date of birth was entered in the parivar register on the basis of an affidavit. The accused moved another application dated 18.09.2015 before the Board with a prayer that his age may be determined by getting him medically examined by a Medical Board at District Hospital, Mainpuri. The Board constituted for the purpose gave an opinion that the accused was 30 years of age. The Juvenile Justice Board did not find the entries in the parivar register worth reliance and held him above 18 years on the date of the incident on the basis of medical opinion. This finding given by the Juvenile Justice Board was challenged before the appellate court. The appellate court considered the provisions of law as contained in sections 49 and 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and also the Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The appellate court also referred to a judgment of the Supreme Court in Ashwani Kumar Saxena vs. State of M.P.; (2012) 9 SCC 750, and ultimately dismissed the appeal holding that the J.J. Board adopted the correct procedure for determination of age and that no interference is required and dismissed the appeal.
4. The contentions of the revisionist are that the evidence of parivar register showing his date of birth as 07.06.1994 was wrongly discarded; where such paper is available, medical age cannot be considered. Secondly, his two younger brothers Rahul and Manjeet, who were also named, were declared juvenile. The younger brother was found aged 16 years and 3 months on the date of the incident, hence there appears no logic that the revisionist i.e. the elder brother could be aged 26 years. Further that when his mother gave the statement before the J.J. Board, she was 38 years and this is one more reason that he cannot be 26 years by any calculation. It is not possible that a 38 years old mother may have a 26 years old son.
5. The revision is opposed by the learned AGA submitting that the J.J. Board followed the procedure as prescribed by law and that the J.J. Board can only look into the evidence which is admissible under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, and not beyond that. It is further argued that the revisionist is trying to mislead the court on the basis of age gap with the mother but there is nothing to verify the fact that when she testified before the J.J. Board, she was actually merely 37/38 years.
6. I went through all the material on record.
7. The procedure for determination of age has been given in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, which is as below:-
"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, 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 appearances 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 the 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 7-A, 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 off 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."
8. The Supreme Court in Om Prakash vs. State of Rajasthan; AIR 2012 SC 1608, the Supreme Court observed in para nos. 17 and 18 are as below:-
"17............in a situation when the school record itself is not free from ambiguity and conclusively prove the minority of the accused, medical opinion cannot be allowed to be overlooked or treated to be of no consequence. In this context the statement of NAW-3 Dr. Jagdish Jugtawat, the medical jurist who conducted the ossification test of the accused and opined before the court that the accused was 19 years of age is of significance since it specifically states that the accused was not a juvenile on the date of commission of the offence. The statement of NAW-1 Dr. C.R. Agarwal, Asstt. Professor in Radiology also cannot be overlooked since he opined that on the basis of x-ray films, the age of the accused is above 18 years and below 20 years. Thus, in a circumstance where the trial court itself could not arrive at a conclusive finding regarding the age of the accused, the opinion of the medical experts based on x-ray and ossification test will have to be given precedence over the shaky evidence based on school records and a plea of circumstantial inference based on a story set up by the father of the accused which prima facie is a cock and bull story.
18. 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."
9. In Parag Bhati (Juvenile) through Legal Guardian vs. State of U.P. and Another; 2016 0 AIR(SC) 2418, the Court observed in para no. 16 as below:-
"16. From a reading of the aforementioned statutory provisions, it is clear that under Section 7A of the JJ Act, the court is enjoined to make an inquiry and take such evidence as may be necessary to determine the age of the person who claims to be a juvenile. However, under Rule 12, 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 it 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. However, if the Board comes to the conclusion that the date of birth mentioned in the matriculation certificate raises some doubt on the basis of material or evidence on record, it can seek medical opinion from a duly constituted medical board to determine the age of the accused person claiming juvenility."
Further in para no. 28, it was held as below:-
"28. 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, 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 vs. State of West Bengal; (2012) 10 SCC 489, an enquiry for determination of the age of the accused is permissible which has been done in the present case."
Thereafter a very important observation has been made in para no. 46 that there may be several valid reasons for absence of the documents mentioned in Rule 12(3)(a)(i) to (iii) of the JJ Rules, 2007 which may range from that the same do not exist or same cannot be produced by the person relying upon them. The non-production may be deliberate or not deliberate. Where non-production is deliberate or intended to either mislead the court or suppress the truth the court may have to exercise its powers and discretion with certain amount to insights realities of life.
10. In the instant case a few important things have been stressed by the State, first, parivar register is not a certificate which is envisaged anywhere in rule 12(3)(a)(i) to iii. Further that the revisionist/juvenile never said that he didn't attend any school or never had any formal education, hence non-production of any school record must be viewed with suspicion. Further more that admittedly, entry in parivar register has been made on the basis of an affidavit. Any explanation as regard the circumstances showing when and what prompted this move of filing affidavit for entry in parivar register is missing.
11. From the submissions of both the sides and perusal of material on record, it is clear that no paper like matriculation or equivalent certificate or date of birth certificate from a school first attended or birth certificate given by a corporation or municipal authority or a Panchayat could be produced by the revisionist before the J.J. Board or before the appellate court. Undoubtedly, the procedure prescribed under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007 gives precedence to the aforesaid papers in that very order as above. In absence of any such paper, the Board had no option but to depend upon medical opinion. The dependence on parivar register is out of place in the scheme of things as envisaged by Rule 12. Even if for the sake of argument, it is accepted that the parivar register is a document which could be and should have been relied upon by the J.J. Board, this fact cannot be ignored that the entry in parivar register was made on the basis of a simple affidavit. In such circumstances, the Board rightly did not place reliance on such entry. The J.J. Board or the Court concerned cannot rely on entries in any document unless they appear to be prima facie correct. Definitely, the J.J. Board or the court concerned is expected to apply its judicial mind and not to rely on paper in a mechanical manner, ignoring the facts and circumstances of the matter.
12. In my opinion, the J.J. Board committed no fault in relying upon the medical report in the facts and circumstances of the case. The Age of the accused was found about 26 years on the date of incident. The provisions of Rule 12(3)(b) permit the J.J. Board to determine the age in the lower side within the margin of one year only, hence, it could have been 25 years on the date of incident and not below that.
13. On the basis of the above discussion, I do not find any good ground to interfere in the impugned order in exercise of the revisional power of this Court, hence this criminal revision is hereby dismissed.
Order Date :- 25.1.2024 Sumit Kumar