Madhya Pradesh High Court
Dhirendra Pandey Alias Dhiraj Pandey ... vs The State Of Madhya Pradesh on 2 February, 2018
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
MCRC-1073-2018
(Dhirendra Pandey @ Dhiraj Pandey @ Dhiru Pandey S/o Shri
Rohini Prasad Pandey, .............................. Applicant
Versus
State of Madhya Pradesh............................. Respondent
For the applicant : Shri. Prakash Upadhyay, Advocate
For the respondent : Shri Mohit Nayak, Government Advocate
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Present: Hon'ble Mr. Justice Sushil Kumar Palo
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ORDER
(02/02/2018) This application under Section 482 of the Cr.P.C. has been filed to invoke the extra ordinary jurisdiction of this Court and to set aside the order dated 27.12.2017 passed by 1st Additional sessions Judge, Amar Patan, Distt. Satna in S.T. No. 3400138/2016, whereby the application filed by the accused/applicant for summoning certain documents and examine the witnesses under Section 311 of the Cr.P.C. has been disallowed.
2. Bereft of the unnecessary details the factual matrix of the case is that the applicant/accused is facing trial for offences under Sections 363, 366 and 376(2) of the I.P.C. r/w Section 6 of the Protection of Children from the Sexual Offences Act, 2012.
3. After recording of the evidence of the prosecution and examination of accused under Section 313 of the Cr.P.C., the prosecution moved an application for additional evidence. Head Master of the government Primary School, where the prosecutrix allegedly studied was examined. Further additional examination of the accused was conducted under Section 313 of Cr.P.C.
4. The applicant/accused then moved the present application under Section 311 of the Cr.P.C. and sought permission to examine. The father of the prosecutrix states that in the B.P.L. (Below Poverty Line) card, the age of the prosecutrix mentioned as 20 years. This B.P.L. (Below Poverty Line) card was issued by Janpad Karyalay, Amarpatan. Therefore, the document related to the B.P.L. (Below Poverty Line) card be also called. Learned trial Court after affording opportunity to both the parties has disallowed the request. This application by a detailed order is not maintainable for the reason that for determining the age of minor prosecutrix provision under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007 has been enacted, which do not prescribe such record for consideration while determining the age of the chiled.
5. The same order under challenge before this Court, on the ground that Rule 12 prescribes the determination of age of the Juvenile in-conflict of law. Though, the same is applicable for determining the age of victim in cases, where the victim or the prosecutrix or the complainant is alleged to be a minor. But the provision of Rule 12 express that the matriculation or equivalent certificate, and in absence of the same, the date of birth certificate from the school first attended and in the absence whereof the birth certificate issued by the corporation or a municipal authority or a panchayat can be taken into consideration. It is further provided that if all the 3 mode of documents are not available them the examination by Medical Board will be conducted for determining age of the juvenile or child. In the present case the scollar register of the school when the prosecutrix was admitted in class one was considered but this entry in the school can be challenged by the applicant/accuse on the basis of the BPL (Below Poverty Line) card and the survey list the entry in this school register. Therefore, the learned trial Court erred in not allowing the application. It is also contended that the proposed evidence is relevant and cogent, but the same has been dismissed on the ground that, the Rule prescribed does not allow such evidence. Therefore, when the applicant seeks permission to allow such evidence by recalling the witness and the documents of BPL (Below Poverty Line) card. The Court would consider whether the entry in the school register is true or not, the Court may after adducing evidence may reject the same. But at this stage, the Court ought to have allowed the petitioner to adduce the evidence and ordered to produce the document.
6. Learned G.A. for the State opposing the contentions submitted that the Rule prescribed for determining the age of the Juvenile delinquent, therefore, the order impugned do not call for any interference.
7. The Constitution Bench of the Supreme Court in the case of Pratap Singh Vs. State of Jharkhand and another 2005 Volume 3 SCC 551 has laid down the procedure for determining the Juvenility. Subsequently this procedure has been imported as Rule 12 of the Juvenile Justice Act (care and protection of Children) Rules 2007.
8. The Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007, prescribed for the procedure to be followed when the claim of juvenility is raised before any Court. In the case of Jarnail Singh Vs. State of Haryana (213) Volume 7 SCC 263 the Hon'ble Apex Court has propounded that Rule 12 should be basis for determining the age, both for a child in conflict of law and a child who is victim of crime. In the present case the determination of age is with regard to the victim of crime. The Juvenile Justice (Care and Protection of Children) Rules, 2007 provided as under:-
(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; 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.
9. In this Rule, the BPL (Below Poverty Line) card has not been made any basis for determining the age. When the age is determined by this scolar registered of the school, in which the prosecutrix was admitted into class one is available, no further evidence in this regard is felt necessary. The age entered in the B.P.L. (Below Poverty Line) card is a tentative age and it is used for supply of food grain to the member of the family, cannot be taken to be an authenticated document so far as the age is concerned.
10. Besides, when there is prescribed norms for determining the age of the prosecutrix. The evidence with regard to the age in the present case is not necessary for it is not investigation or trial but inquiry as to the age of the prosecutrix. Section 2-G of the Criminal Procedure Code define "inquiry" is- means every inquiry other than trial, conducted under this Court by magistrate or Court Therefore, "inquiry" is the Act of asking information and also consideration of some evidence may be documentary. Therefore, the arguments advanced by the learned counsel for the applicant that the applicant has a right to challenge the same and applicant wants to adduce evidence in rebutting the entry of the school record cannot be allowed, for it is an inquiry to determine the age and not a part of trial.
11. The expression "trial" has been generally understood as the examination by Court of issue of fact and laws in a case for the purpose of rendering the judgment relating to some offences committed. Therefore, when the Court is determining the "juvenility" the Court is expected to conduct an inquiry under the Juvenile Justice (Care and Protection of Children) Act 2000 following the procedure laid down under Rule 12 of 2007 Rules and not following the procedure laid down under the Code of Criminal Procedure. When the procedure is specifically laid down under Section 7-A Juvenile Justice (Care and Protection of Children) Act, 2000 and Rule 12 of the 2007 Rules the same will apply in the matters and not the inquiry or investigation as expressed in the Code of Criminal Procedure.
12. It would be appropriate to mention here that the procedure laid down in the statute itself i.e. Rule 12 of the 2007 Rules has to be followed, while conducting inquiry under Section 7-A of the Juvenile Justice (Care and Protection of Children of Children) Act, 2000. No Court can import other procedure 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 power under Section 7-A of the Juvenile Justice (care and protection of Children) Act 2000. As the procedure of trial for inquiry under the Code of Criminal Procedure is not applicable as if the Court is trying an offence under the penal laws for getting the facts that specific procedure has been laid down in Section 7-A of Act 2000 read with Rule 12 of 2007 Rules.
13. Once the Court following the above mentioned procedure passes an order that order shall be conclusive prove of the age as regarding that child. Sub Rule 5 of Rule 12 prescribe no further inquiry shall be conducted by the Court or Board after examining and obtaining the certificate or any other documentary prove suffered in sub Rule 3 of Rule 12. Section 49 of the Juvenile Justice (care and protection of Children) Act 2000 also draw presumption of the age of juvenility on its determination.
14. Only in cases where those documents or certificate are found to be fabricated or manipulated, the Court need to go for medical report, for the age determination. But for determining the Juvenility once the inquiry is made as per the norms prescribed by way of Rules, there cannot be scope for expressing doubt over the certificate produced and carry on detail prove which is totally unwarranted. In this regard reference can be made to the case of Ashwani Kumar Saxena Vs. The State of M.P, 2012 Volume 9 SCC 750 paragraph 35.
15. For the reasons mentioned above this petition is dismissed.
(SUSHIL KUMAR PALO) JUDGE L.R. Digitally signed by LALIT SINGH RANA Date: 2018.02.06 11:25:55 +05'30'