Jharkhand High Court
Anmol Verma @ Katti @ Sunny vs The State Of Jharkhand ... .... Opposite ... on 22 March, 2021
Equivalent citations: AIRONLINE 2021 JHA 486, 2021 (3) AJR 381
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 144 of 2021
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Anmol Verma @ Katti @ Sunny, aged about 17 years, son of Ved Prakash @ Lallu, resident of Moti Street, Dhobi Mahalla, Ratu Road Near Jaspal Petrol Pump, P.O., G.P.O. P.S. Sukhdeonagar, District-Ranchi, through his father namely, Ved Prakash @ Lallu aged 47 years, son of Late Vedi Ram, R/o Moti Niwas, Moti Street, near Jaiswal Petrol Pump, Dhobi Mohlla, Ratu Road, Ranchi, P.O., G.P.O. P.S. Shukdev Nagar, District-Ranchi ... .... .... Petitioner Versus The State of Jharkhand ... .... Opposite Party CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner : Mr. Avishek Prasad, Advocate For the State : Mr. Gorang Jajodia, Advocate 04/22.03.2021 Heard Mr. Avishek Prasad, learned counsel for the petitioner and Mr. Gorang Jajodia, learned counsel for the State.
2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard
3. The present petition has been filed for quashing of order dated 09.09.2020 passed by the learned Additional Judicial Commisioner-1, Ranchi in Criminal Appeal No. 40/20.
4. On the basis of fardbeyan of one Naushad Khan wherein the informant has stated that on 12.01.2019 he went to the graveyard and was searching labour for excavation of graveyard. In the meantime, he saw some blood near the PCC Road, thereafter he informed the same to the Committee member and during search they found a dead body in a bush which was kept to hide the same and in the light of that, F.I.R. bearing Sukhdeo Nagar P.S. Case No. 18 of 2019 was registered under sections 302/201/34 of the Indian Penal Code.
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5. From perusal of impugned order, it transpires that investigation was started. The petitioner was arrested and produced before the Court of learned Judicial Magistrate, Ranchi where on the prayer of the petitioner to declare him juvenile, he was declared juvenile in Sukhdeo Nagar P.S. Case No. 419/18 on the basis of his date of birth being 31.01.2002. Learned Judicial Magistrate declared the petitioner juvenile by perusing the original transfer certificate issued by D.A.V. School, Ranchi as well as certificate dated 15.09.2018 issued by Principal DAV Sikcha Deep School, J.P. Nagar, Ratu Road, Ranchi. The I.O. has filed petition before the Juvenile Justice Board on 15.03.2019 along with two school certificates of the petitioner and challenged the juvenility of the CICL namely, Anmol Verma @ Katti @ Sunny and pursuant thereto notice was issued upon the CICL. By order dated 01.04.2019 after considering the certificates and enquiry witnesses, the Juvenile Justice Board came to the conclusion that the petitioner is a major and juvenility of the petitioner was cancelled. Being aggrieved with this, the petitioner preferred appeal bearing Criminal Appeal No. 40 of 2020 and by order dated 09.09.2020 the said criminal appeal was dismissed and order dated 01.04.2019 passed by the Juvenile Justice Board was confirmed. Aggrieved with this, the petitioner preferred this petition under section 482 Cr.P.C.
6. Mr. Avishek Prasad, learned counsel appearing on behalf of the petitioner submits that there are disputed documents with regard to age for which J.J.B. was required to send the matter to the Medical Board for determination of age. To buttress his argument he relied upon the judgment in the case of "Ashwani Kumar Saxena v. State of Madhya Pradesh" reported in (2012 ) 9 SCC 750 wherein para 3 & 4 the Hon'ble Supreme Court has held as under:
"3. The appellant stated that his date of birth is 24-10-1990 and hence 3 on the date of the incident i.e. on 19-10-2008, he was aged only 17 years, 11 months and 25 days and was thus a juvenile. In support of this contention, he produced the attested marksheets of the High School of the Board of Secondary Education, M.P. Bhopal as well as Eighth Standard Board Examination, wherein the date of birth was mentioned as 24-10-1990.
4. Smt Kiran, widow of the victim raised objection to the application contending that no evidence had been adduced to show that the entry made in the school register was correct and normally parents would not give correct date of birth on the admission register. Further, it was also stated that on physical appearance, as well, he was over 21 years of age and therefore the application be dismissed."
7. Learned counsel for the petitioner submits that "Ashwani Kumar Saxena" (supra) case has been considered in the case of "Sri Ganesh V. State of Tamil Nadu & Another" reported in (2017) 3 SCC 280 wherein para 9, 10, 11 and 12 the Hon'ble Supreme Court has held as under:
"9. The law on the point is well settled and succinctly stated in Ashwani Kumar case6 where this Court after taking into consideration relevant statutory provisions observed in paras 32 to 34 as under: (SCC pp. 763-64) "32. "Age determination inquiry" contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
33. Once the court, following the abovementioned procedures, passes an order, that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in sub- rule (5) of Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of Rule 12. Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination.
34. Age determination inquiry contemplated under the JJ Act and the 2007 Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion, etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such 4 a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for medical report for age determination."
10. In the present case, the trial court took into account the documentary evidence as contemplated in the statutory provisions and returned a finding that the date of birth of the appellant was 19-10- 1991. During the course of its judgment, the High Court could not find such conclusion to be vitiated on any ground. In the face of the relevant documentary evidence, there could be no medical examination to ascertain the age of the appellant and as such the consequential directions passed by the High Court were completely unwarranted. Further, if the allegations of the prosecution are that the offence under Section 376 IPC was committed on more than one occasion, in order to see whether the appellant was juvenile or not, it is enough to see if he was juvenile on the date when the last of such incidents had occurred. The trial court was, therefore, justified in going by the assertions made by the victim in her cross-examination and then considering whether the appellant was juvenile on that date or not.
11. The learned counsel for the respondent, however, relies on the decision of this Court in Karthi. In that case, the accused had repeatedly engaged in consensual sexual intercourse with the prosecutrix on different dates on promises of marriage. After having found that the promises were false, the prosecutrix had lodged a complaint asserting her exploitation on certain previous dates. While considering the delay in reporting the matter to the police, this Court found that it was only after the accused had declined to marry the prosecutrix that a different dimension came to be attached to their relationship and thus, there was no delay in registration of FIR. The decision in Karthi stands on a completely different point and cannot be pressed into service to say that because the appellant had refused to marry the victim, the date of the offence under Section 376 would consequently change. The date of the incident remaining constant, the principle in Karthi will be of assistance only in getting over the aspect of delay in lodging the FIR.
12. We thus find that the approach of the High Court in the present case was incorrect and completely misdirected. Even if we were to remand the matter back to the High Court for fresh consideration, in our view it would be an empty formality in the face of finding of fact rendered by the trial court. We, therefore, allow this appeal and set aside the judgment and order1 under appeal. The view taken by the trial court is restored and the matter stands disposed of in terms of the directions issued by the trial court as stated above."
8. On these grounds, learned counsel for the petitioner submits that the court below has committed error and without considering these aspects of the matter passed impugned order. He submits that this Court may interfere under section 482 of the Cr.P.C.
9. Mr. Gorang Jajodia, learned counsel appearing for the State submits that by order dated 01.04.2019 it was decided that the petitioner is a major and his juvenility was cancelled. He submits that the petitioner has 5 not challenged the report of the I.O. which has been discussed in order dated 01.04.2019. He further submits that there are documents on record and considering the same, the age of the petitioner has been determined. He also relies on judgment in the case of "Ashwani Kumar Saxena"
(supra) and referring to para 32 of the said judgment, learned counsel for the State submits that in view of para 32 of the said judgment it is required only if the documents relating to age are not on record. He submits that in view of these grounds, this Court may not interfere under section 482 of the Cr.P.C. as the Court below after going through the entire records, passed the impugned order.
10. Paragraph 32 of the judgment in "Ashwani Kumar Saxena" (supra)case is quoted here-in-below:-
"32. "Age determination inquiry" contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year."
11. On perusal of order dated 01.04.2019 passed by the Juvenile Justice Board, it transpires that the certificate issued by the Principal, St. Aloysius High School was considered wherein the age of the petitioner was mentioned as 31.01.1999. In the said order it is indicated that the petitioner was transferred from Green Valley Public School, Indrapuri Road, Ranchi and the I.O. approached the Principal of that school who issued the school certificate mentioning that the date of birth of the accused/CICL is 31.01.1999 as per the school record. The said document was marked as 6 Exhibit-1 in which the date of birth of the petitioner has been mentioned as 31.01.1999.
12. In the light of those documents, the Juvenile Justice Board came to the conclusion that the date of birth of the petitioner is 31.01.1999 as per two certificates and on the date of occurrence i.e. 12.01.2019, the petitioner was aged 19 years, 11 months and 10 days. It has been clearly indicated that in order dated 01.04.2019 the petitioner has not objected the petition filed by the I.O. The Court below has also considered the entire aspects in the present case and the appellate court has also taken into account two documents with respect to the petitioner i.e. entry on serial no. 236 of Admission Register of the year, 2010-2011 of St. Aloysius High School bearing the name of the petitioner was marked as Exihibit-1, Admission Form was marked as Exhibit-2, School Leaving Certificate issued from Green Valley Public School was marked as Exhibit-3 and Transfer Certificate issued from St. Aloysius High School was marked as Exhibit-4. The court below after considering all these exhibits came to the conclusion that in all these documents, the date of birth of the petitioner is 31.01.1999. The appellate Court considering the certificate issued by DAV Sikcha Deep School issued in favour of the petitioner in which the date of birth of the petitioner is 31.01.2002 came to the conclusion that only to obtain the benefit, the said certificate was created and was produced. Thus, J.J.B. and the appellate court after considering the entire documents have come to that conclusion that the petitioner is a major and the petitioner was declared major. In the case of "Ashwani Kumar Saxena" (supra), Section 7-A of the Juvenile Justice (Care & Protection of Children) Act, 2011 (amended Act, 2015) discussed for the determination of age by way of taking evidences. Earlier the Hon'ble Supreme Court has held that the question of obtaining medical opinion from duly constituted Medical Board 7 arises only if the certificates of matriculation or equivalent are not on the record. In the case in hand there were two certificates on the record which have been marked as exhibits and the Principals of the school have been examined to prove that documents, thus the judgment of "Ashwani Kumar Saxena" (supra) case is not helping the petitioner. The petitioner has already created document from DAV Siksha Deep School in which date of birth has been mentioned as 31.01.2002. The question of referring for determining the age is required if there is no entry made in the certificate. In the case in hand, there are already documents which have not been challenged as indicated in order dated 01.04.2019 passed by the Juvenile Justice Board. The Court has not accepted to conduct enquiry to go beyond those certificates to examine the correctness of the documents. This aspect of the matter has been again considered by the Hon'ble Supreme Court in para 9 in the case of " Sri Ganesh" (supra).
13. There is concurrent findings of the two courts below. Thus, the Court is not inclined to exercise under section 482 Cr.P.C. and is not inclined to interfere with this matter. Accordingly, this criminal miscellaneous petition is dismissed.
(Sanjay Kumar Dwivedi, J.) Satyarthi/-