Punjab-Haryana High Court
Surender vs State Of Haryana And Another on 16 February, 2012
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Writ Petition No.32 of 2012 (O&M)
Date of decision: 16th February, 2012
Surender
... Petitioner
Versus
State of Haryana and another
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. H.P.S. Aulakh, Advocate for the petitioner.
Mr. Amandeep Singh, Assistant Advocate General, Haryana
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Present criminal writ petition has been filed under Article 226 of the Constitution of India praying for issuance of a writ in the nature of habeas corpus for premature release of the petitioner under Section 2(c) of the Premature Release Policy dated 4th February, 1993 (Annexure P-2) read with Sections 7A, 64 and 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended with effect from 22nd August, 2006 read with rule 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007.
It is pleaded in the petition that the petitioner was arrested in a case arising out of FIR No.151 dated 02.08.2001 registered at Police Station Khol Rewari under Section 302 IPC. He was convicted for the above said offence and was sentenced to undergo imprisonment for life by the Court of Additional Sessions Judge, Rewari on 29th July, 2006. It is stated that the appeal filed by the petitioner has been dismissed by this Court.
Criminal Writ Petition No.32 of 2012 (O&M) 2
Counsel for the petitioner has relied upon certificate of birth (Annexure P-1) issued by the Principal, Senior Secondary School, Mandothi (Jhajjar), wherein the date of birth of the petitioner is recorded as 15th December, 1983. Thus, it is stated that on the day of occurrence, the petitioner was less than 18 years of age, and therefore, he is to be treated as a delinquent juvenile in conflict with law, in view of the retrospective operation of amendment carried in the Juvenile Justice Act. Hence, the petitioner cannot be detained further by the jail authorities.
State has filed reply by way of an affidavit of Superintendent, District Jail, Karnal, wherein it is stated that the birth certificate was sought from the District Registrar, Birth & Death-cum-Civil Surgeon, Jhajjar. As per Annexure R-2/T, District Registrar, Birth & Death-cum- Civil Surgeon, Jhajjar has stated that no record is available regarding the date of birth of the petitioner for the years 1978 to 1985. It was further stated that the certificate (Annexure P-1) which gives the date of birth of the petitioner as 15th December, 1993, was got verified from the school. The jail authorities, vide Annexure R-3/T, have stated that in the school record the correct date of birth of the petitioner is 15th December, 1980 and incorrectly in certificate (Annexure P-1) it has been mentioned as 15th December, 1983. Thus, the petitioner was not a juvenile on the date of occurrence, as he was above the age of 18 years.
Rule 12(3) of the Juvenile Justice Rules reads as under:
"12.(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-Criminal Writ Petition No.32 of 2012 (O&M) 3
(a) (i) the matriculation or equivalent
certificates, if available, and in the
absence whereof;
(ii) the date of birth certificate from the school
(other than a play school) first attended;
and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat.
... ... ..."
Admittedly, the matriculation certificate is not available with the petitioner. Therefore, he has relied upon the second option, i.e. certificate (Annexure P-1), in which he has projected that his date of birth as 15th December, 1983. On verification, this certificate was found to be false and as per Annexure R-3/T, the correct date of birth of the petitioner is 15th December, 1980.
The proviso to Section 64 of the Juvenile Justice Act has been added by the amending Act of 2006. The same specifically states that the State Government or as the case may be the Board, may, for any adequate and special reasons to be recorded in writing, review the case of a juvenile in conflict with law undergoing the sentence of imprisonment. Thus, on receipt of information, the State authorities had reviewed case of the petitioner and have come to a definite conclusion that the petitioner was not a juvenile on the date of occurrence.
Mr.H.P.S. Aulakh, Advocate for the petitioner, has vehemently contended that the certificate (Annexure R-3/T) is not a true document, in fact certificate (Annexure P-1) is the correct one. Mr.Aulakh has canvassed before me that this Court should reject the certificate (Annexure R-3/T) propounded by the State and accept certificate (Annexure P-1) projected by the petitioner.
Criminal Writ Petition No.32 of 2012 (O&M) 4
This Court, while exercising jurisdiction under Article 226 of the Constitution of India, cannot adjudicate disputed questions of fact. Mr.Aulakh has further drawn my attention to Section 54 of the Juvenile Justice Act to state that in all inquiries, appeals and revisions, the procedure prescribed in the Code of Criminal Procedure, 1973 is to be followed. Mr.Aulakh has further stated that anybody, who relies upon a certificate, has to prove the same by invoking Section 35 of the Indian Evidence Act.
That being so, this Court is of the opinion that the petitioner, if so advised, may approach the Juvenile Justice Board of competent jurisdiction and pray that an enquiry be held. The Board, needless to say, will be the forum to adjudicate as to which certificate, i.e. Annexure P-1 or Annexure R-3/T, is correct.
The prayer made by counsel for the petitioner that a direction be issued to the State that the case should be sent through Superintendent, District Jail, Jhajjar, is not tenable as the State authorities after considering the evidence available have formulated their opinion. The petitioner, if aggrieved, may take recourse to the lawful remedy available to him under the provisions of law.
With the observations made above, present petition is disposed of.
[KANWALJIT SINGH AHLUWALIA] JUDGE February 16, 2012 rps