Himachal Pradesh High Court
Nishant Negi vs State Of H.P. And Another on 18 August, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MMO No. 189 of 2017.
Date of decision: 18th August, 2017.
Nishant Negi ....Petitioner
Versus
State of H.P. and another ..... Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1No For the Petitioner : Mr. N.S. Chandel and Mr. Dinesh Thakur, Advocates.
For the Respondents : Mr. J. S. Guleria, Assistant Advocate General, for respondent No.1.
Mr. Satyen Vaidya, Senior Advocate, with Mr. Vivek Sharma, Advocate, for respondent No.2.
Tarlok Singh Chauhan, Judge (Oral).
This petition under Article 227 of the Constitution of India is directed against the order dated 11.1.2017 passed by learned Sessions Judge (Forest), Shimla in case No.45-S/4 of 2017 titled State of H.P. vs. Aman Chaudhary, whereby the application filed by respondent No.2 (hereinafter referred to as the alleged juvenile) for his re-examination in PGI, Chandigarh for ascertaining his age on the date of the commission of the offence i.e. 20.10.2011 in accordance with Rule 12 (3) (b) of the Juvenile Justice (Care and Protection of Children), Rules 2007, has been allowed.
2. On earlier occasion, this Court vide its order dated 2.6.2017 had directed the learned Sessions Judge (Forests), Shimla to determine Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 2 the juvenility of the alleged juvenile in accordance with Rule 12 (3) (b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for .
short 'Rules') which were in vogue and operative at the relevant time.
3. In compliance to the said order, the learned Court below vide order dated 18.10.2016 directed the Medical Superintendent, IGMC, Shimla to constitute a Medical Board to ascertain the age of the juvenile as on the date of commission of the alleged offence i.e. 20.10.2011.
4. It is not in dispute that in compliance to the orders so passed on 18.10.2016 by the learned Court below, the Medical Superintendent constituted a Medical Board, which submitted its report dated 21.12.2016, the relevant portion thereof reads thus:
"......After dental (dentition), radiological (osteometric test) and physical medical examination of Aman Chaudhary, the medical board is of the opinion that the age of the accused on the date of examination i.e. 16.12.2016 is above 25 years; and on the date of commission of the alleged offences i.e. 20.10.2012, the age of Aman Chaudhary was about 20 +/-1 years."
5. It appears that thereafter the alleged juvenile moved an application in person before the learned Court below on 11.1.2017, which reads thus:
"To Dt: 11.1.2017.
The Forest Session Judge,
Shimla, H.P.
Sub:- Request for re-medical for my age proof in PGI, Chandigarh.
Respected Sir, I U/T Aman Chaudry S/o Sh. Santosh Chaudry would hereby request honourable Judge to consider my request i.e. ::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 3 for a Re-Medical checkup for my age proof in P.G.I., Chandigarh.
.
Respected Sir, it would be your kindness if you order for the same to P.G.I. hospital, Chandigarh. In undertake that it will not be disputed.
Thanking you, Yours sincerely, Sd/-
Aman Chaudhary."
6. On the basis of the application so submitted by the alleged juvenile, the learned Court below on 11.1.2017 passed the following order:
"11.01.2017: Present : Sh. Atma Ram, Public Prosecutor, for the State.
Accused Aman Chaudhary produced in custody of HHC Sanjay No. 605 from M.C. Jail, Kanda (Shimla).
Sh. Ajay Kochhar, Advocate, for the accused.
The case is listed for consideration today, but an application has been moved by the applicant/accused requesting that he be got re-examined in PGI, Chandigarh for ascertaining his age on the date of commission of offences i.e. 20.10.2011 in accordance with Section 7A of the Act read with Rule 12 (3) (b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The application is allowed being not opposed by the prosecution/State. Be tagged with the main file after completion/registration.
In these circumstances, Director, PGI, Chandigarh is directed to constitute a Medical Board, which will declare/ascertain the age of the juvenile or child viz. accused Aman Chaudhary on the date of commission of the alleged offences.
After constituting the Board, date and time of examination will be intimated to this Court by the Director of the PGI, so that the Jail Authorities can be directed to produce the accused before the Medical Board on the appointed date and time for examination.::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 4
A letter in this regard be written to the Director, PGI, Chandigarh. Copy of this order and copy of Rule 12 be .
appended to the forwarding letter. Put up on 24.01.2017 for awaiting the response of the Director.
Sd/-
Sessions Judge (F), Shimla."
7. When this petition came up for consideration on 2.6.2017, this Court noticed that not only the application which was preferred by the alleged juvenile did not mention any provision of law, but was not even accompanied by an affidavit. That apart, the application was completely devoid of any explanation and justification, yet the learned Court had allowed the same, that too, primarily on the ground that the said application had not been opposed by the Public Prosecutor-State.
8. This constrained the Court to make the following observations:
"8. The mode and manner in which the order has been passed by the learned court below cannot prima-facie be countenanced. What further cannot be appreciated is the conduct of the Public Prosecutor, who has not opposed such application.
9. How, the learned Court below i.e. Sessions Judge (Forests), Shimla had jurisdiction to entertain an application which did not even mention any provision of law under which it had been moved and further how the application which was devoid of any explanation and justification was allowed in a manner as has been done by the learned Court below is anybody's guess. After all, the powers of the Sessions Judge are not unbridled and unfettered. Moreover, there is no inherent power available to be exercised or vested with the learned Sessions Judge under Section 482 Cr.P.C., which power is exclusively available only to this Court.::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 5
10. Why then the Public Prosecutor did not oppose the application and consented to the .
same, under whose instructions such concession came to be given, that too, on the first date itself when the application came up for consideration and allowed by the learned Sessions Judge, are matters which need to be answered even by the Public Prosecutor.
11. The issue assumes importance because the prayer made in the application was not of such a nature that could have been granted or r allowed as a matter of course or in a routine fashion. The application further could not have been allowed on the mere concession of the Public Prosecutor whose duty was to defend the State and not side with the juvenile, who as per the report of the Medical Board, was otherwise opined to be aged about 20 +/-1 years on the date of commission of alleged offence i.e. 20.10.2012 and thus not a juvenile."
9. On the basis of the aforesaid observations, this Court directed as follows:
"12. Therefore, in such circumstances, both learned Sessions Judge (Forests), Shimla and Public Prosecutor owe an explanation. Learned Sessions Judge (Forests), Shimla owes a duty to explain as to under what authority of law he passed the order dated 11.1.2017 and at the same time the Public Prosecutor owes a duty to explain as to why he had not opposed such an application and under whose instructions was such concession given.
13. The learned Sessions Judge (Forests), Shimla is directed to submit his response within four weeks.::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 6
14. Let a copy of this order be sent to the Principal Secretary (Home) to the Government of .
Himachal Pradesh to hold an inquiry as to under what circumstances and under whose instructions was the aforesaid application not opposed by the prosecution/State."
10. When the petition came up for consideration on 28.7.2017, a copy of the inquiry report conducted by Sh. Nand Lal Sen, Joint Director (Prosecution) was made available by learned Additional Advocate General and the same was made part of the record. Apart from that, the learned Sessions Judge (Forest), Shimla had also offered his explanation which after perusal was not found satisfactory as it did not deal with the issue as raised in paragraph 9 of the order dated 2.6.2017 (supra) and, therefore, the learned Judge was called upon to submit supplementary explanation and accordingly the case was ordered to be listed on 3.8.2017.
11. When the case was taken up on 3.8.2017, the supplementary explanation offered by the learned Sessions Judge was again found to be not satisfactory as he had not cared to explain as to what was his source of powers and where from he derived such powers to allow the application, after all, he was not vested with the powers under Section 482 Cr.P.C. to allow application in the interest of justice, fair play and equity. The learned Judge was granted one final and last opportunity to explain and the matter was ordered to be taken up on 10.8.2017. On 10.8.2017, the supplementary explanation in terms of order dated 3.8.2017 had not been received and, therefore, learned Judge was granted further opportunity to do the needful and the case was ordered to be listed on 17.8.2017.
12. On 17.8.2017, the case was adjourned to 18.8.2017. The supplementary explanation offered by learned Judge with regard to his ::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 7 source of power find mention in para-2 thereof, the relevant portion whereof reads thus:
.
"......Power to allow application of the accused was derived from Section 7A of JJ Act, Rule 12 of the Rules framed thereunder as well as the observations made in Jyoti Prakash Rai vs. State of Bihar, AIR 2008 Supreme Court, 1696, Judgments dated 07.08.2013 and 03.06.2016 passed by the Hon'ble High Court. Of course, powers under Section 482 Cr.P.C. can be exercised only by the Hion'ble High Court."
I have heard learned counsel for the parties and have gone through the records of the case as also the explanation(s) offered by learned Judge.
13. Evidently, the order passed by the learned Court below on 11.1.2017 is not only bereft of any reasons, but it would also be noticed that the same does not even refer to the report already submitted by the IGMC, Shimla with regard to the juvenility of the alleged juvenile. If at all, the alleged juvenile was aggrieved by the said report, it was open to him to take recourse to such remedies as were available to him under the law, but in no event could have he filed the impugned application under Section 7A till he so long the report submitted by the IGMC, Shimla had not been taken to its logical end i.e. 'accepted' or 'rejected'. This is so provided under sub rule 5 of Rule 12, which reads thus:
"12. Procedure to be followed in determination of Age.-
(1 to 4). Xxx xxx xxx (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."
::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 814. That apart, the interpretation now sought to be given by learned Judge virtually amounts to sitting over the order earlier passed by .
this Court on 3.6.2016 in Criminal Revision No. 320 of 2015 whereby the petition filed by the alleged juvenile was allowed and the learned Court was directed to determine the juvenility of the alleged juvenile in accordance with Rule 12 (3) (b) of the Rules and thereafter pass consequential orders in accordance with law.
15. This Court while passing the aforesaid order have taken into consideration the relevant provisions of law, as would be evident from paragraphs 4 to 8 of the order, which reads thus:
" 4. The mode and manner in which the juvenility has to be determined was a subject-matter of decision by the Hon'ble Supreme Court in Ashwani Kumar Saxena versus State of M.P., AIR 2013 SC 553 and it was held as under:-
25. We may in the light of the judgments referred to herein before and the principles laid down therein while examining the scope of Section 7 A of the Act, Rule 12 of the 2007 Rules and Section 49 of the Act examine the scope and ambit of inquiry expected of a court, the J.J. Board and the Committee while dealing with a claim of juvenility.
26. We may, however, point out that none of the above mentioned judgments referred to earlier had examined the scope, meaning and content of Section 7A, Rule 12 of the 2007 Rules and the nature of the inquiry contemplated in those provisions. For easy reference, let us extract Section 7A of the Act and Rule 12 of the 2007 Rules:
"Section 7A - Procedure to be followed when claim of juvenility is raised before any court.
(1)Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of ::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 9 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 order, and the sentence if any, passed by a court shall be deemed to have no effect."
Rule 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;
::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 10(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 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.
::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 11(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.
(emphasis added)
27. Section 7A, obliges the court only to make an inquiry, not an investigation or a trial, an inquiry not under the Code of Criminal Procedure, but under the J.J. Act. Criminal Courts, JJ Board, Committees etc., we have noticed, proceed as if they are conducting a trial, inquiry, enquiry or investigation as per the Code. Statute requires the Court or the Board only to make an 'inquiry' and in what manner that inquiry has to be conducted is provided in JJ Rules. Few of the expressions used in Section 7A and Rule 12 are of considerable importance and a reference to them is necessary to understand the true scope and content of those provisions. Section 7A has used the expression "court shall make an inquiry", "take such evidence as may be necessary"
and "but not an affidavit". The Court or the Board can accept as evidence something more than an affidavit i.e. the Court or the Board can accept documents, certificates etc. as evidence need not be oral evidence.
28. Rule 12 which has to be read along with Section 7A has also used certain expressions which are also be borne in mind. Rule 12(2) uses the expression "prima facie" and "on the basis of physical appearance" or "documents, if available". Rule 12(3) uses the expression "by seeking evidence by obtaining". These expressions in our view re- emphasize the fact that what is contemplated in Section 7A and Rule 12 is only an inquiry. Further, the age determination inquiry has to be completed and age be determined within thirty days from the date of making the application; which is also an indication of the manner in which the inquiry has to be conducted and completed. The word 'inquiry' has not been defined under the J.J. Act, but ::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 12 Section 2(y) of the J.J. Act says that all words and expressions used and not defined in the J.J. Act but defined .
in the Code of Criminal Procedure, 1973 (2 of 1974), shall have the meanings respectively assigned to them in that Code.
29. Let us now examine the meaning of the words inquiry, enquiry, investigation and trial as we see in the Code of Criminal Procedure and their several meanings attributed to those expressions.
"Inquiry" as defined in Section 2(g), Cr.P.C. reads as follows:
"Inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.
The word "enquiry" is not defined under the Code of Criminal Procedure which is an act of asking for information and also consideration of some evidence, may be documentary.
"Investigation" as defined in section 2(h), Cr.P.C.
reads as follows:
"Investigation includes all the proceedings under this code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
The expressions "trial" has not been defined in the Code of Criminal Procedure but must be understood in the light of the expressions "inquiry" or "investigation" as contained in sections 2(g) and 2(h) of the Code of Criminal Procedure."
30. The expression "trial" has been generally understood as the examination by court of issues of fact and law in a case for the purpose of rendering the judgment relating some offences committed. We find in very many cases that the Court /the J.J. Board while determining the claim of juvenility forget that what they are expected to do is not to conduct an ::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 13 inquiry under Section 2(g) of the Code of Criminal Procedure, but an inquiry under the J.J. Act, following the .
procedure laid under Rule 12 and not following the procedure laid down under the Code.
31. The Code lays down the procedure to be followed in every investigation, inquiry or trial for every offence, whether under the Indian Penal Code or under other Penal laws. The Code makes provisions for not only investigation, inquiry into or trial for offences but also inquiries into certain specific matters. The procedure laid down for inquiring into the specific matters under the Code naturally cannot be applied in inquiring into other matters like the claim of juvenility under Section 7A read with Rule 12 of the 2007 Rules. In other words, the law regarding the procedure to be followed in such inquiry must be found in the enactment conferring jurisdiction to hold inquiry.
32. Consequently, the procedure to be followed under the J.J. Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules. We cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the court exercising powers under section 7A of the Act. Many of the cases, we have come across, it is seen that the Criminal Courts are still having the hangover of the procedure of trial or inquiry under the Code as if they are trying an offence under the Penal laws forgetting the fact that the specific procedure has been laid down in section 7A read with Rule 12.
33. We also remind all Courts/J.J. Board and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate etc. mentioned in Rule 12 (3) (a) (i) to (iii). The courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection.
::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 1434. "Age determination inquiry" contemplated under section 7A of the Act r/w 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 need 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 need 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 above mentioned 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.
35. Once the court, following the above mentioned 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 subsection (5) or 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 the Rule 12. Further, Section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination.
36. Age determination inquiry contemplated under the J.J. Act and 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, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those ::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 15 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 J.J. Board or the Committee need to go for medical report for age determination."
5. It would be evident from the aforesaid exposition of law that age determination inquiry contemplated under Section 7 of the Act readwith Rule 12 of 2007 Rules, enables the Court to seek evidence and in that process, the Court can obtain matriculation certificate or equivalent certificate, if available.
Only in the absence of matriculation or equivalent certificate, the Court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation certificate or equivalent certificate or date of birth certificate from the school first attended, the Court need 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 above mentioned 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/her age on the lower side within the margin of one year.
6. Similar issue thereafter came up for consideration before the Hon'ble Supreme Court in Jodhbir Singh versus State of Punjab AIR 2013 SC 1 wherein it was made clear ::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 16 that Rule 12 of the Rules should be the basis for determination of the age of the child victim as well as child in .
conflict in law. It was further held that in the scheme contemplated under Rule 12(b), it is not permissible to determine the age in any other manner.
7. Identical issue came up recently for consideration before the Hon'ble Supreme Court in Nagendra versus State of Uttar Pradesh 2015 (3) RCR (Criminal) 543: 2015(4) Cri CC 571, wherein the juvenility had been determined on the basis of the school leaving certificate which did not fall in any of the provisions contemplated under Rule 12 of the 2007 Rules and after placing reliance on the judgment of Ashwani Kumar Saxena's case (supra), it was held as under:-
"3. Having given our thoughtful consideration to the submission advanced at the hands of the Learned Counsel for the appellant, we are satisfied, that a school leaving certificate is not a relevant consideration to determine the juvenility of an accused/convict Under Rule 12(3) thereof. The afore-mentioned statutory provision was not considered by this Court while deciding Ranjeet Goswami's case. The same cannot therefore be any precedential value in terms of the statutory provisions, referred to here in above. For the reasons recorded here in above, we find no merit in this appeal. The same is accordingly hereby dismissed."
8. Similar reiteration of law can be found in a very recent judgment of the Hon'ble Supreme Court in Parag Bhati (Juvenile and others) versus State of Uttar Pradesh and another AIR 2016 SC 2418."
::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 1716. Notably, the principles expounded hereinabove have been reiterated in a recent judgment of the Hon'ble Supreme .
Court in Ganesh vs. State of Tamil Nadu AIR 2017 SC 537.
17. Once this Court had set the path for the learned Court below, it was not permissible for the learned Judge to have deviated from such path by invoked his own notion regarding the interpretation of the Act and the Rules and this would virtually amounts to superseding the orders passed by this Court and the Court would thus be guilty of judicial impropriety.
18. Once the procedure as mentioned in Section 7A read with Rule 12 had been followed, it was incumbent upon the learned Judge to have passed an order which was then to be treated as the conclusive proof of the age as regards the alleged juvenile and no further inquiry whatsoever was permissible under the law as is clear from sub section 5 of Rule 12.
19. Therefore, in such circumstances, the order passed by learned Sessions Judge (Forest), Shimla on 11.1.2017 is not sustainable and is accordingly set-aside.
20. Now, adverting to the more serious issue regarding the mode and manner in which the application has been considered and allowed by the Court. The same as already observed above, makes no mention of powers under Section 7A having already been exercised by learned Judge below. Further it does not even make a whisper of the report already submitted by the IGMC, Shimla in compliance to the orders passed by learned Sessions Judge. What is more surprising or rather more shocking is the fact that in the explanation that has now been offered by the learned ::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 18 Sessions Judge, he has given detailed reasons, which persuaded him to allow the application and the same are contained in paras 7 to 10 of the .
explanation, which read thus:
"7. On 11.1.2017, a number of short comings were pointed out in the report dated 21.12.2016 of the IGMC by the learned defence counsel. He mentioned that the reoprt is palably wrong as it does not show that any doctor/expert from Department of Orthopaedics was a member of the Medical Board (which is/was a must), the report is not supported by the radiological findings r which were recorded and the age determined by the doctors should have been given flexibility of two years on either side (instead of one year) as per the judgments rendered by the Hon'ble apex Court. It was also pointed out that earlier vide order dated 11.3.2013 passed by this Court, the accused was held to be a juvenile in conflict with law and the report of the IGMC might have been procured by the complainant party by exercising some undue influence since the deceased was the father-in-law of a senior Police Officer of the State. Further, it was brought to the notice of the Corut that the complainant Sh. Nishant Negi, who happens to be the grand son of the deceased, is serving as a doctor in the IGMC and took advice part during the medical examination of the accused as well as preparation of the report of the medical board. In a judgment passed under the JJ Act titled as Jyoti Prakash Rai vs. State of Bihar, AIR 2008 Supreme Court 1696, it was observed by the Hon'ble Apex Court that a medical report determining the age of of a person has never been considered by the courts of law as also by the medical scientists to be conclusive in nature. After certain age it is difficult to determine the age of the accused. Reports of both the Medical Boards were taken into account to determine the juvenility of the accused.::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 19
8. On the same day i.e. 11.1.2017, an application for re-
medical in PGI, Chandigarh for age proof was moved by .
the applicant/accused (who is in custody since 29.10.2011). Being an under trial prisoner, the accused was not in a position to swear an affidavit without the permission of the Court to be appended to the application. It is/was not expected from a person like the accused, who does not know the law, to quote the provisions of law in the application. Justification and explanation for allowing the application of the accused was orally submitted by his learned counsel as rindicated above. Since the inquiry regarding juvenility of the accused is/was still pending, a reasonable doubt was created in the mind of the Court regarding the validity /geunineness of the report given by the IGMC, no orders regarding accpeting or disbelieving the report dated 21.12.2016 of the IGMC were passed by the Court after examining the same, the law does not debar medical examination of the accused for the second time, the cas had a chequered history, Rules of 2007 are subservient to the provisions of JJ Act, the application was allowed being not opposed by the other side in the interest of justice, fair play and equity so as to comply with the order dated 3.6.2016 passed by the Hon'ble High Court in its letter and spirit. Order dated 11.1.2017 was not passed to favour anyone.
9. Facts detailed above were not mentioned by me in the order dated 11.1.2017 to avoid the wastage of precious judicial time of the court since question of juvenility is/was to be finally decided after examining the report and hearing the parties. The application was allowed being not opposed on the same day to dispose of the same at the earliest. No objection was made by the learned PP after hearing the submissions of learned defence counsel so as to avoid delay of the proceedings and in good faith so that the truth comes on record and ::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 20 none of the parties is prejudiced. The accused is facing incarceration for the last more than five and a half .
years. Even an application was moved by his learned counsel in the Court on 28.12.2016 that the accused intends to commit suicide. Copy of such application was forwarded to the Superintendent Jail for necessary action at his end.
10. Report of the Medical Board, PGI, Chandigarh was received, whereafter, the case was listed for consideration on 23.05.2017. Report of the PGI, which is a higher institute than the IGMC, supports the r apprehension of the defence that a wrong report has been procuredfrom the IGMC by the complainant party being influential. Perhaps, the complainant party is now trying to put blame on others to cover up its misdeeds."
21. Obviously, the learned Judge is trying to supplement the reasons which already stand recorded in the order with new reasons, which is not permitted in law and is clearly an after thought. It is more than settled that the validity of an order passed by the Court must be judged by the reasons so mentioned therein and cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise.
22. Equally it is settled that every decision of an administrative or executive or judicial nature must be a composite and self sustaining one and in that it should contain all the reasons which prevailed upon the authority taking the decision to arrive at his/her conclusion. It is beyond cavil that an authority cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned action. These orders cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do.
::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 2123. Reference in this regard can conveniently be made to a recent decision of the Hon'ble Supreme Court in State of Punjab vs. Bandeep .
Singh and others (2016) 1 SCC 724, wherein it was observed as under:
"4. There can be no gainsaying that every decision of an administrative or executive nature must be a composite and self sustaining one, in that it should contain all the reasons which prevailed on the official taking the decision to arrive at his conclusion. It is beyond cavil that any authority cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned action. If precedent is required for this proposition it can be found in the celebrated decision titled Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi, 1978, 2 SCR 272, of which the following paragraph deserves extraction:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji [1952] 1 SCR 135:
'9. Public orders publicaly made, in exercise of a statutory authority cannot be construed in the light of Explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.' ::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 22 Orders are not like old wine becoming better as they grow older".
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24. In view of settled legal position, the explanation now offered by the learned Judge is nothing but an after thought and what is more disturbing is the fact that the explanation offered by the learned Judge as also the Public Prosecutor are virtually cut, copy and paste version of each other.
25. Notably, the only explanation offered by the learned Judge for not setting out or incorporation all the above facts in the imugned order are contained in para-9 of the explanation, the relevant portion whereof reads as under:
"9. Facts detailed above were not mentioned by me in the order dated 11.1.2017 to avoid the wastage of precious judicial time of the court since question of juvenility is/was to be finally decided after examining the report and hearing the parties. The application was allowed being not opposed on the same day to dispose of the same at the earliest. No objection was made by the learned PP after hearing the submissions of learned defence counsel so as to avoid delay of the proceedings and in good faith so that the truth comes on record and none of the parties is prejudiced. The accused is facing incarceration for the last more than five and a half years. Even an application was moved by his learned counsel in the Court on 28.12.2016 that the accused intends to commit suicide. Copy of such application was forwarded to the Superintendent Jail for necessary action at his end."
26. It is rather shocking that the learned Judge has avoided to give reasons in his order only on the pretext of "wastage of precious judicial time" and this explanation obviously cannot be accepted.
::: Downloaded on - 23/08/2017 23:56:26 :::HCHP 2327. As regards the show cause notice issued to the learned Sessions Judge as also the inquiry conducted against the learned Public .
Prosecutor, even though, I am not satisfied with either of the reply filed by the learned Judge or even the inquiry conducted against the learned Public Prosecutor, which is nothing but a cut, copy, paste version of each other, however, I deem it proper to give it a quietus at this stage with the hope that such grave and serious mistakes are not repeated by the concerned officer(s) in future.
28 It is absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. I am convinced by the explanation and supplementary explanation offered by the learned Judge that justice in this case would not be done to the parties in case the same is retained in the docket of the Court of learned Sessions Judge (Forest), Shimla.
29. Therefore, while setting aside the order dated 11.1.2017 passed by learned Sessions Judge (Forest), Shimla, the case is transferred to the Court of learned Sessions Judge, Shimla, who shall decide the same in accordance with law. The parties through their counsel(s) are directed to appear before the Court of learned Sessions Judge, Shimla on 4th September, 2017.
30. The petition is disposed of in the aforesaid terms, so also the pending application. Interim order dated 2.6.2017 is vacated.
August 18, 2017. (Tarlok Singh Chauhan), (GR) Judge.
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