Chattisgarh High Court
A vs State Of Chhattisgarh on 21 February, 2024
Neutral Citation
2024:CGHC:6137
-1-
AFR
HIGH COURT of CHHATTISGARH, BILASPUR
Order Reserved on 31.01.2024
Order Delivered on 21.02.2024
CRR No. 1110 of 2023
A S/o B, R/o Xyz, Through His Father B
---- Applicant
Versus
State Of Chhattisgarh Through P.S. Tarbahar, District Bilaspur
(C.G.)
---- Respondent
For Applicant : Mr. R.K. Jain, Advocate For Non-Applicant : Ms. Smriti Shrivastava, Panel Lawyer S.B.: Hon'ble Shri Parth Prateem Sahu, Judge CAV Order
1. Applicant claiming to be a juvenile has preferred this revision under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "Act of 2015") challenging the legality and validity of the order dated 07.09.2023 passed by learned Special Judge (Atrocities) Additional Charge of Additional Sessions Judge (FTC) and Children Court, Bilaspur in Criminal Appeal No.121/23 whereby learned Special Court dismissed the appeal filed by the applicant under Section 101 of the Act of 2015 affirming the report/order of the Juvenile Justice Board (hereinafter referred to "the Board") determining the age of Neutral Citation 2024:CGHC:6137 -2- applicant.
2. Facts relevant for disposal of this revision are that the applicant was apprehended in connection with the Crime No.33/2022 for alleged commission of offence under Sections 363, 366-A, 386 302, 201, 120-B and 34 of IPC. After framing of charge against the applicant under Sections 363, 364-A, 387, 302/34 and 201/34 of IPC, applicant submitted an application under Section 7 read with Section 2 (k) of the Act [application is filed under the provision of Juvenile Justice (Care and Protection of Children) Act, 2000 ] before the trial Court for determining his age along with relevant documents. Application submitted by the applicant for determining his age was allowed vide order dated 27.09.2022 and learned trial Court forwarded the application along with supporting documents and a memo to Juvenile Justice Board, Bilaspur along with copy of order. The Board after conducting inquiry, recording evidence of the witnesses in support of the claim with regard to age of the applicant had submitted its report dated 05.07.2022 determining age of applicant to be above 18 years on the date of incident i.e. 06.02.2022. Report of determining age of applicant was put to challenge in an appeal under Section 101 of the Act of 2015 and learned appellate Court dismissed the appeal for reasons recorded therein.
3. Learned counsel for the applicant submits that the Board as well as learned appellate Court have not appreciated the fact and evidence available in record in appropriate manner in the light of provision under the Act of 2015. It is contention of learned counsel Neutral Citation 2024:CGHC:6137 -3- for the applicant that the applicant in support of his plea of age to be less than 18 years on the date of incident has submitted school register, mark-sheet of Class-1 as also examined the President of the School Committee and father of applicant to prove that date of birth of applicant. If for any reason in the documents placed before the Board, in the inquiry determining the age of the applicant, two different dates of birth is mentioned then the Board ought to have taken recourse to determining the age of the applicant by conducting ossification test (bone test). Applicant, on the ground of two different dates of birth appearing in the documents, has submitted an application for conducting bone test/ossification test which was declined by erroneous order. Rejection of the application/claim for conducting ossification test/bone test is in contravention of the provision under Section 94 of the Act of 2015. Learned appellate Court has not considered and dealt with the document exhibited i.e. Ex.C-1 and not given its finding as to how the said document is not believable or acceptable. Without dealing with the issue and ground raised by the appellant therein, appellate Court has dismissed the appeal only considering some of the documents and therefore finding recorded by learned appellate Court affirming report determining age by the Board is not acceptable and, therefore, the order passed by the learned Sessions Court in appeal as also report/order of determining the age of the applicant by the Board be set aside. The matter may be referred to Medical Board for conducting ossification test of the applicant.
Neutral Citation 2024:CGHC:6137 -4-
4. Learned counsel for the State opposed the submission of learned counsel for the applicant and would submit that the Board as well as the learned appellate Court has correctly appreciated the evidence brought on record in the light of provision under Section 94 of the Act of 2015 for determination age of the applicant. The appellate Court had discussed the contention of applicant therein with regard to overwriting in the date of birth in one of the document i.e. Ex.C-1 and has assigned reasons for the same. Order passed by learned appellate Court is just and proper and hence it does not call for any interference.
5. I have heard learned counsel for the parties and also perused the documents placed in record in criminal revision as also record of the trial Court.
6. Undisputedly the applicant is apprehended in criminal case involving offence under Section 302 of IPC. During pendency of appeal before the Sessions Court, applicant submitted an application for determination of his age. Child under Act of 2015 is defined under Section 2 (12) of the Act of 2015 as "child" means a person who has not completed eighteen years of age and Section 2 (13) deals with "child in conflict with law" means a child who is alleged or found to have committed offence and who has not completed eighteen years of age on the date of commission of offence. Section 2 (35) defines a "juvenile" to be child below the age of eighteen years. Section 2(33) defines "heinous offence" which includes offence for which the Neutral Citation 2024:CGHC:6137 -5- minimum punishment under Indian Panel Code or any other law for the time being in force is imprisonment for seven years or more.
7. Applicant is apprehended in connection with the commission of offence under Sections 363, 366-A, 386 302, 201, 120-B and 34 of IPC. From the above, it is apparent that applicant was involved in committing heinous offence and therefore it is the duty of the Board and the Court to minutely appreciate the evidence and material brought before it for determining the age of applicant.
8. Along with the application for determination of age of applicant, applicant had produced copy of school register of Shri Ramkrishna Vivekanand Higher Secondary School, Ramayan Nagar, Koni, District Bilaspur, issued by the Secretary Ramkrishna Vivekanand School, Ramayan Nagar, Koni. During inquiry by the Board constituted under the Act of 2015, applicant got exhibited the school register as Ex.B1-C. In this register, name of applicant is mentioned at Sr. No.101/2011. In date of birth there is overwriting in "year". This register is showing that applicant took admission in the said school in Class-4 on 20.09.2011. Ex.B-2 is also a copy of school register and name of the applicant is mentioned at Sr. No.2321 and date of birth is mentioned as 12.09.2003. Date of admission is shown as 08.07.2013 and this document is issued by the Principal of the Higher Secondary School, Koni, Bilaspur and proved by witness No.D-2. Ex.B 3-C is a copy of transfer Neutral Citation 2024:CGHC:6137 -6- certificate issued by the Principal of Govt. Higher Secondary School, Koni, Bilaspur which is dated 04.07.2013 mentioning admission No. as 101/2011 i.e. the number as mentioned in Ex.B-1C. Period for which the applicant studied in school is from 20.09.2011 to 30.06.2013 and date of birth is mentioned in figure as well as in words as "12.09.2003" and "Twelfth September Two Thousand Three".
9. From the aforementioned documents which are exhibited before the Board particularly the school leaving certificate produced by the Principal, Govt. Higher Secondary School in whose school the school leaving certificate was submitted clearly mentions the date of birth as 12.09.2003 and this school leaving certificate is of Shri Ramkrishna Vivekanand Higher Secondary School, Ramayan Nagar, Koni, Bilaspur. School Leaving Certificate issued mentioning most of the details of the student as mentioned in the school register. School Leaving Certificate is issued on 04.07.2013 and from the particular mentioned in the School Leaving Certificate it is appearing that date of birth of applicant on the date of preparation of School Leaving Certificate was mentioned as 12.09.2003 in school register also. On the date of leaving the school i.e. Shri Ramkrishna Vivekanand Higher Secondary School, applicant has passed Class-4th. In the school register (Ex.C-1) it is appearing that some overwriting is done in the "year" column of date of birth of the applicant. From the conjoint perusal of the document it is apparent that in the year 2013 when School Neutral Citation 2024:CGHC:6137 -7- Leaving Certificate was issued, the date of birth of the applicant in school register was mentioned as 12.09.2003, and based on the details of the applicant mentioned in school register, Transfer Certificate was prepared.
10. Burden to prove the age by a person to be below 18 years of age on the date of incident is on the person claiming that he was below 18 years on the date of incident. If the date of birth is mentioned in the document /school records, then the burden of proof for disbelieving the same is upon the claimant/applicant. In the case at hand all the documents is related to school of applicant. Even the Transfer Certificate which is brought in record is also of the applicant, copy of which is issued by the Principal, Govt. Higher Secondary School. School register of the private school which is brought in record with overwriting and the argument raised by learned counsel for the applicant that, the only mode to prove the age of the applicant, is by ossification test/bone test, in the opinion of this Court is not sustainable in the given facts of the case. Determining the age under the Act of 2015 is provided under Section 94 of the Act of 2015. Sub-Section (2) of Section 94 of the Act of 2015 is relevant and is extracted below for ready reference:-
"94. Presumption and determination of age. -
(1) x x x (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child Neutral Citation 2024:CGHC:6137 -8- 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."
11. From perusal of the aforementioned provision it is appearing that the Board upon raising reasonable ground for doubt whether a person brought before it is child or not shall undertake the process of age determination by seeking evidence and obtaining the documents. Priority of the document as provided therein is - date of birth certificate from the school or matriculation or equivalent certificate from the concerned Board if available and in absence of aforementioned document birth certificate given by the corporation or Municipal Authority or a Panchayat. Under the Act, it also provides for determining the age by the ossification test or any other latest Neutral Citation 2024:CGHC:6137 -9- medical age determination test, but it can only be ordered in absence of any document as provided under 1 st and the 2nd priority. Before the Board witnesses were examined who proved the school admission register of Class-6 th and Transfer Certificate obtained from Shri Ramkrishna Higher Secondary School mentioning the date of birth as 12.09.2003. The Transfer Certificate (Ex.B-3C) was issued by Shri Ramkrishna Vivekanand Higher Secondary School, Ramayan Nagar, Koni, Bilaspur on 04.07.2013. Based on the Transfer Certificate, applicant took admission in Class 6th on 08.07.2013 in Govt. Higher Secondary School, Koni. The School Leaving Certificate is obtained from Principal, Govt. Higher Secondary School. School Leaving Certificate is obtained by the applicant or his father and based upon which he further took admission in Govt. School. School register of Shri Ramkrishna Higher Secondary School is also produced but, it bears overwriting in the "year" column of the date of birth. It does not bear any counter signature of a person who corrected date of birth if for any reasons it required. This register is not produced by the Principal of the school but by the President whereas the other two documents i.e. Ex.B-2 and Ex. B-3 C is produced by the Principal of Govt. Higher Secondary School, Koni. The documents mentioning date of birth of the applicant as 12.09.2003 is much prior to the date of incident.
12. Hon'ble Supreme Court in the case of Ram Vijay Singh Vs. State of Uttar Pradesh (2021) 15 SCC 241 observed thus:-
Neutral Citation 2024:CGHC:6137 -10- "18. Apart from the said fact, there is an application submitted by the appellant himself for obtaining an Arms Licence prior to the date of the incident. In such application, he has given his date of birth as 30.12.1961 which would make him of 21 years of age on the date of the incident i.e. 20.7.1982. The Court is not precluded from taking into consideration any other relevant and trustworthy material to determine the age as all the three eventualities mentioned in sub-section (2) of Section 94 of the Act are either not available or are not found to be reliable and trustworthy.
Since there is a document signed by the appellant much before the date of occurrence, therefore, we are of the opinion that the appellant cannot be treated to be juvenile on the date of incident as he was more than 21 years of age as per his application submitted to obtain the Arms Licence."
13. In the case of Abuzar Hossain Alias Gulam Hossain Vs. State of of West Bengal (2012) 10 SCC 489, Hon'ble Supreme Court observed thus:-
"39.3 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 Neutral Citation 2024:CGHC:6137 -11- delinquent necessitating further enquiry 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 Sheikh and Pawan these documents were not found prima facie credible while in Jitendra Singh 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 enquiry for determination of the age of the delinquent.
39.5 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 Neutral Citation 2024:CGHC:6137 -12- is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.
39.6. Claim of juvenility lacking in credibility of frivolous claim of juvenility or patently absurd or inherently improbably claim of juvenility must be rejected by the court at the threshold whenever raised."
14.Hon'ble Supreme Court in the case of Jitendra Ram Alias Jittu Vs. State of Jharkhand (2006) 9 SCC 428 observed thus:-
"20. We are, however, not oblivious of the decision of this Court in Bhola Bhagat v. State of Bihar [(1997) 8 SCC 720], wherein an obligation has been cast on the court that where such a plea is raised having regard to the beneficial nature of the socially-oriented legislation, the same should be examined with great care. We are, however, of the opinion that the same would not mean that a person who is not entitled to the benefit of the said Act would be dealt with leniently only because such a plea is raised. Each plea must be judged on its own merit. Each case has to be considered on the basis of the materials brought on records."
15.In the case of Babloo Pasi Vs. State of Jharkhand and Anr. (2008) 13 SCC 133, Hon'ble Supreme Court observed thus:-
"22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth Neutral Citation 2024:CGHC:6137 -13- is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. 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.
23. It is true that in Arnit Das Vs. State of Bihar, this Court has, on a review of judicial opinion, observed that while dealing with a question of determination of age of an accused, for the purpose of finding out whether he is a juvenile or not, a hyper- technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the same evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. We are also not oblivious of the fact that being a welfare legislation, the Courts should be zealous to see that a juvenile derives full benefits of the provisions of the Act but at the same time it is also imperative for the courts to ensure that the protection and privileges under the Act are not misused by unscrupulous persons to escape punishments for having committed serious offences."
16. In the case of Parag Bhati (Juvenile) through Legal Guardian- Mother-Rajni Bhati Vs. State of Uttar Pradesh and Anr. (2016) 12 SCC 744, Hon'ble Supreme Court considering its earlier decisions has observed thus :-
"34. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile Neutral Citation 2024:CGHC:6137 -14- 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 JJ 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.
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."
17. In the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh (2022) 8 SCC 602, Hon'ble Supreme Court after considering its earlier decision has observed as under:-
"33.2 An application claiming juvenility could be Neutral Citation 2024:CGHC:6137 -15- made either before the Court or the JJ Board.
33.2.3 When an application claiming juvenility is made under section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated under section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the criminal court concerned, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015).
33.3 That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.
Neutral Citation
2024:CGHC:6137
-16-
x x x
x x x
41. The JJ Board, Baghpat, by its order dated 14.09.2020 dismissed the application seeking medical examination of respondent no.2- Nishant herein and there is nothing produced to show that the same has been set aside. According to the JJ Board, the matriculation certificate issued by the concerned Board indicated the date of birth as 25.09.2004 and it is only in the absence of such a document that determination of age had to be by ossification test or any other latest medical age determination test. In the instant case, since the certificate of the matriculation Board was available, it was unnecessary for orders for medical test of Nishant."
18. If the facts of the case are considered in light of aforementioned decisions of Hon'ble Supreme Court, it is clear that documents relating to school is produced before the Board. One of the document Ex.B-1-C is school register of Shri Ramkrishna Vivekanand Higher Secondary School, Ramayan Nagar, Koni in which there is overwriting in the date of birth. Ex. B-3-C is Transfer Certificate issued by the same school which bears admission number and the year of admission in that school. Applicant studied from 20th September 2011 to 30th June 2013. Date of birth is mentioned as 12.09.2003. Transfer certificate i.e. School Leaving Certificate was issued on 04.07.2013. This document is of much prior to the date of alleged offence. The date of birth is mentioned based on the other details of student Neutral Citation 2024:CGHC:6137 -17- available in the record of the school like admission register. School Leaving Certificate was issued by the Principal of Shri Ramkrishna Vivekanand Higher Secondary School. Based on the School Leaving Certificate/Transfer Certificate applicant took admission in the Govt. Higher Secondary School Koni Bilaspur wherein also date of birth of the applicant is mentioned as 12.09.2003. To prove the Transfer Certificate and School Register i.e. Ex.B-3C, Ex. B-2C, Smt. Archana Sharma Principal is examined before the Board stating that based on the School Leaving Certificate applicant was admitted on 08.07.2013. School Leaving Certificate is obtained by the applicant and his guardian/parent from its earlier school mentioning details therein and at the time of admission it is produced before the Govt. Higher Secondary School, Koni. It is not the case where in two documents produced by the applicant different dates of birth are mentioned. In fact in one of the document it appears that some overwriting has been done and the year of date of birth is corrected. Who corrected and on which date, it is not appearing from the document as there is no endorsing signature with the date mentioned therein. As observed by Hon'ble Supreme Court that an applicant claiming juvenility is made under Section 94 of the Act of 2015 and at the stage when trial is before the criminal Court concerned, decree of proof required in such proceeding is higher than, when an inquiry is made by the Court before which the case regarding commission of offence is pending.
Neutral Citation 2024:CGHC:6137 -18-
19. Document which is pressed upon i.e. Ex.B-1-C contains overwriting, is not reliable as it is dubious in nature. The appellant cannot be treated to be a juvenile, only because the Act is beneficial legislation. Provision of the statutes are to be interpreted liberally, but the benefit cannot be granted to appellant who has approached the Court with untruthful statement.
20. True it is that if there is a clear and unambiguous case in favour of juvenile that he was minor below the age of 18 years on the date of incident and documentary evidence prima facie proves the same, he would be entitled to special protection. 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.
21. Hon'ble Supreme Court observed that the ossification test is not a sole criteria of age determination and a blind mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion of radiological examination. Though radiological examination is useful guiding factor for determining the age of a person, the evidence is not of conclusive and incontrovertible in nature and it is subject to margin of error.
Neutral Citation 2024:CGHC:6137 -19-
22. For the foregoing discussions and the decisions of Hon'ble Supreme Court in the facts of the case, I do not find any error in the finding recorded by the Court dismissing the appeal and affirming the age determined by the Juvenile Justice Board.
23. The revision is accordingly dismissed.
24. Records be sent back forthwith.
Sd/-/----/--/---/-/-
(Parth Prateem Sahu) Judge Praveen