Himachal Pradesh High Court
Kumit Kumar vs State Of H.P on 8 July, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. MMO No.117 of 2024
Reserved on 14.06.2024
Date of Decision:- 08.07.2024
Kumit Kumar .........Petitioner
Versus
State of H.P. .......Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Manoj Rana, Advocate. For Respondent : Mr. Lokender Kutlehria, Additional Advocate General, for the respondent/State.
Rakesh Kainthla, Judge.
The petitioner has filed the present petition against the order dated 01.01.2024 passed by learned Additional Sessions Judge-II (POCSO) Solan, H.P., (learned Trial Court), vide which an application filed by the petitioner (accused before learned Trial Court) for treating him as a juvenile was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 08/07/2024 20:34:17 :::CIS 22. Briefly stated, the facts giving rise to the present petition are that the police filed a charge sheet against the .
accused for the commission of offences punishable under Section 376AB of IPC and Section 6 of the Protection of Children from Sexual Offences, Act (POCSO) before the learned Trial Court. The accused appeared before the learned Trial Court and filed an application seeking transfer of the Criminal case to the Juvenile Justice Board, Solan. He asserted that police had not verified his age. He was treated as a major and he is in judicial lockup in Kanda Jail instead of an Observation Home. The accused is a juvenile. Hence, it was prayed that the application be allowed and the case be transferred to the Juvenile Justice Board, Solan, H.P.
3. The Court called for the report of the police. The police submitted a report stating therein that the birth certificate produced by the accused was taken from his school and his date of birth was found to be 04.03.2004. The accused produced his Aadhaar Card in which his age was mentioned as 19 years. The accused was subjected to a medical examination and the Medical Officer certified his age as 19 years.
::: Downloaded on - 08/07/2024 20:34:17 :::CIS 34. The learned Trial Court held that the documents showed the age of the accused was more than 18 years.
.
Hence, the prayer to transfer his case to the Juvenile Justice Board, Solan could not be allowed.
5. Being aggrieved from the order passed by the learned Trial Court, the accused has filed the present petition.
It was asserted that the learned Trial Court failed to appreciate the material placed on record and the law applicable to the case. The police had submitted two reports before the learned Trial Court. The police stated in the first report that the Aadhaar Card mentions the age of the accused as 19 years.
The age mentioned in the Aadhaar Card is not valid proof to determine the question of juvenility. The Medical Officer opined that the age of the accused is 19 years. There is a variation of 2-3 years in the medical report regarding the age.
The learned Trial Court had not passed any order to verify the birth certificate annexed to the transfer application. The police had not produced any document to show that a wrong date of birth was recorded on the school certificate. Hence, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside and the trial be ::: Downloaded on - 08/07/2024 20:34:17 :::CIS 4 transferred from the Court of learned Additional Sessions Judge-II (POCSO) to the Juvenile Justice Board, Solan.
.
6. The police filed a status report asserting that the accused had produced an Aadhaar Card showing his age as 19 years. The certified copy was obtained from the Government Middle School, Parbatia, Bihar, which shows the date of birth of the accused as 04.03.2004. The accused also produced a Birth Certificate issued on 14.08.2023, which was verified and it was found that the date of birth was registered on 14.08.2023. The purpose of getting the certificate was the preparation of an Aadhaar Card. No school or Panchayat record was produced regarding the birth.
7. I have heard Mr. Manoj Rana, learned counsel for the petitioner/accused and Mr. Lokender Kutlehria, Additional Advocate General, for the respondent/State.
8. Mr. Manoj Rana, learned counsel for the petitioner/accused submitted that the learned Trial Court erred in dismissing the application. No inquiry was conducted and it was wrongly concluded that the birth certificate produced by the accused was false. Therefore, he prayed that the present ::: Downloaded on - 08/07/2024 20:34:17 :::CIS 5 petition be allowed and the order passed by the learned Trial Court be set aside.
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9. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State supported the order passed by the learned Trial Court and submitted that no interference is required with the same. He submitted that the authenticity of the certificate was examined by the police and the certificate was found to have been prepared after the registration of the FIR to take benefit of the Juvenile Justice Act. Learned Trial Court had rightly rejected such a certificate.
Hence, the present petition be dismissed.
10. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
11. In the present case, the learned Trial Court sought a report from the police and decided the matter as per the report submitted by the police. It was laid down by the Hon'ble Supreme Court in Karan v. State of M.P., (2023) 5 SCC 504 that when a person raises a claim that he was juvenile on the date of the incident, the Court shall make an inquiry and ::: Downloaded on - 08/07/2024 20:34:17 :::CIS 6 take such evidence as may be necessary as per Section 9(2) of the Juvenile Justice Act, 2015. It was observed:
.
"13. The next question is as to what relief the appellant can be granted in view of the fact that he has been held to be a child and that too below 16 years of age under the 2015 Act. In this context, Section 9 of the 2015 Act would be relevant. The same is reproduced hereunder:
"9. Procedure to be followed by a Magistrate who has not been empowered under this Act.
--(1) When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction.
(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:
Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.::: Downloaded on - 08/07/2024 20:34:17 :::CIS 7
(3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders .
and the sentence, if any, passed by the court shall be deemed to have no effect.
(4) In case a person under this section is required to be kept in protective custody, while the person's claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety."
14. A perusal of the aforesaid section firstly gives a right to a person alleged to have committed an offence to claim that he was a child on the date of commission of offence and if such a claim is raised, the court concerned shall make an inquiry, take such evidence as may be necessary other than the affidavit to determine the age of such person. The proviso to sub-section (2) further makes it clear that such a claim can be raised before any court and the same could be recognised at any stage even after the case has been finally decided.
The claim so made would be determined in accordance with the provisions of the 2015 Act and the Rules made thereunder even if such person has ceased to be a child whether on or before the commencement of the 2015 Act. The law provides full coverage to a person who is established to be a child on the date of the offence to avail the benefits admissible to a child under the 2015 Act even if the case has been finally decided and also such person has attained majority. Further, sub-section (3) provides that if it is found in the inquiry that such a person was a child on the date of commission of such an offence then the court is required to forward the child to the Juvenile Justice Board (in short "JJB") for passing appropriate orders and further if any sentence has been imposed by the court, the same shall be deemed to have no effect. In view of the above statutory provisions and in view of the findings recorded, the appellant having been held to be a child ::: Downloaded on - 08/07/2024 20:34:17 :::CIS 8 on the date of commission of the offence, the sentence imposed has to be made ineffective."
12. This position was reiterated in Narayan .
Chetanram Chaudhary v. State of Maharashtra, 2023 SCC OnLine SC 340 and it was held that the Court holding an inquiry can devise its procedure. There is no requirement of following the procedure of trial. It was observed:
"31. The requirement to follow the Code is "as far as practicable," as per Section 103 (2) of the 2015 Act. The legislature, thus, while prescribing the summons trial procedure for inquiry by the Board or Committee on age determination of a juvenile claimant has not mandated any specific procedure for inquiry by the Court. It follows, by implication, that the Court can formulate its procedure for conducting an inquiry on this count. So far as the present case is concerned, this Court had directed an inquiry to be conducted by the Inquiring Judge at the first level, before whom the applicant and the prosecution had sufficient opportunity to present their version. The report of the Inquiring Judge was subsequently examined by us, again giving adequate opportunity to both sides. We have ourselves called for the original admission register from the school. The principal-in-charge of the school, Namrata Prabhusingh had given a statement in writing at the inquiry stage, and the translated version of which appears at page 311 of the Inquiry Report. She has stated:--
"With reference to aforesaid, the name of Niranaram s/o Chetanram, Jalabsar has been recorded in the Student Admission Register of our Rajkiya Adarsh Higher Secondary School, Jalabsar, Shreedungargad at Student Admission No. 568. In accordance with the said record, his date of birth is written as 01.02.1982. No student by the name of Narayan was in our school."::: Downloaded on - 08/07/2024 20:34:17 :::CIS 9
(quoted verbatim from paper book)
32. In Ashwani Kumar Saxena (supra) two-judge Bench of this Court, dealing with the provisions of .
the 2000 Act observed and held:--
"25. Section 7-A 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 JJ Act. The criminal courts, Juvenile Justice Board, committees, etc. we have noticed, proceed as if they are conducting a trial, inquiry, enquiry or investigation as per the Code. The 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 the JJ Rules. Few of the expressions used in Section 7-A rand Rule 12 are of considerable importance and a reference to them is necessary to understand the true scope and content of those provisions. Section 7-A has used the expressions "the 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.
26. Rule 12 which has to be read along with Section 7-A has also used certain expressions which are also to be borne in mind. Rule 12(2) uses the expressions "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-emphasise the fact that what is contemplated in Section 7-A 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 ::: Downloaded on - 08/07/2024 20:34:17 :::CIS 10 not been defined under the JJ Act, but Section 2(y) of the JJ Act says that all words and expressions used and not defined in the JJ Act but defined in the Criminal Procedure Code, 1973 (2 of .
1974), shall have the meanings respectively assigned to them in that Code.
27. 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) CrPC reads as follows:
"2. (g) '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) CrPC reads as follows:
"2. (h) '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 authorised by a Magistrate on this behalf;"
The expression "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.
28. The expression "trial" has been generally understood as the examination by a court of issues of fact and law in a case for the purpose of rendering judgment relating to some offences committed. We find in very many cases that the court/the Juvenile Justice Board while determining ::: Downloaded on - 08/07/2024 20:34:17 :::CIS 11 the claim of juvenility forget that what they are expected to do is not to conduct an inquiry under Section 2(g) of the Code of Criminal Procedure, but an inquiry under the JJ Act, following the procedure .
laid down under Rule 12 and not following the procedure laid down under the Code.
29. The Code lays down the procedure to be followed in every investigation, inquiry or trial for every offence, whether under the Penal Code or 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 7-A 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 the inquiry.
30. Consequently, the procedure to be followed under the JJ 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 7-A of the Act. In 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 7-A read with Rule 12.
31. We also remind all courts/Juvenile Justice Boards and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate, etc. mentioned in Rules ::: Downloaded on - 08/07/2024 20:34:17 :::CIS 12 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.
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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 need 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 a medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case an 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 the 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 the 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 ::: Downloaded on - 08/07/2024 20:34:17 :::CIS 13 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 the court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such 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."
33. The case of Ashwani Kumar Saxena (supra) has been referred to in several judgments of this Court and the ratio thereof still holds good. Though that was a judgment delivered under the 2000 Act, the procedure for determining juvenility in the 2015 Act remains broadly the same and hence this authority shall remain valid for an inquiry under the 2015 Act. There is a decision of a Single Judge of the Allahabad High Court (Lucknow Bench) in the case of Sheo Mangal Singh v. State of U.P. [1989 SCC OnLine All 605] in which, dealing with the 1986 Act, the view has been taken that the word "inquiry" in Section 3 therein means an inquiry under the said Act and not an inquiry under the 1973 Code. In Section 2(t) of the 1986 Act, provisions similar to Section 103 of the 2015 Act had been engrafted. The expression "inquiry", in the manner in which it has been used in the 1973 Code cannot be transplanted in toto so far as the 2015 Act is concerned, to fit the meaning of inquiry therein. It has an element of search or investigation under the 2015 Act, not in the sense these words are used, inter-alia, in Chapters XXIII and XXIV of the 1973 Code, which the Court may require to undertake while determining a juvenility claim. The 1973 Code also ::: Downloaded on - 08/07/2024 20:34:17 :::CIS 14 contemplates preliminary inquiry under Sections 148 and 174 of the Code and the said expression has not been employed in the 1973 Code to convey a uniform meaning or procedure. We are of the view that the meaning and .
scope attributed to the expression "inquiry" in the case of Ashwani Kumar Saxena (supra) to be the proper construction of this word and may be followed in dealing with the question of determination of juvenility claim under the 2015 Act. Mr. Patil has argued that the ratio in the case of Ashwani Kumar Saxena (supra) may have gotten diluted in view of the judgment of this Court in the case of Abuzar Hossain (supra), delivered by a three-
judge Bench. But Abuzar Hossain (supra) deals with the context in which inquiry shall be directed under the 2000 Act and Rules made thereunder. This authority does not come into conflict with a ratio of the decision in the case of Ashwani Kumar Saxena (supra), to the extent the latter judgment explains the meaning and implication of the expression "inquiry" under the 2000 Act and Rules made thereunder. The aim of such inquiry obviously is to determine the juvenility of the claimant. So far as Section 94 of the 2015 Act is concerned, though the said provision deals with the determination of the age of a juvenile claimant by the Committee or the Board, in our opinion the documents or tests referred to therein would guide the Court as well in making inquiry of such nature. In the absence of any specific legislative mandate, as regards the course a Court ought to undertake in an inquiry under Section 9(2) of the said Act, the prescription of the provisions of Section 94(2) provides safe guidance which the Court ought to follow. The result of such inquiry pronounced by the Court would be in the nature of a declaration on the juvenility of a claimant-accused.
34. In the case of Rishipal Singh Solanki v. State of Uttar Pradesh [(2022) 8 SCC 602], a two-judge Bench of this Court took this view, considering a large body of cases on this subject and observed:--
"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:::: Downloaded on - 08/07/2024 20:34:17 :::CIS 15
33.1. A claim of juvenility may be raised at any stage of a criminal proceeding, even after the final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such .
a claim. It can also be raised for the first time before this Court.
33.2. An application claiming juvenility could be made either before the court or the JJ Board. 33.2.1. When the issue of juvenility arises before a court, it would be under subsections (2) and (3) of Section 9 of the JJ Act, 2015 but when a person is brought before a committee or JJ Board, Section 94 of the JJ Act, 2015 applies.
33.2.2. If an application is filed before the court claiming juvenility, the provision of subsection (2) of Section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of Section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.
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 the 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 ::: Downloaded on - 08/07/2024 20:34:17 :::CIS 16 by a court before which the case regarding the commission of the offence is pending (vide Section 9 of the JJ Act, 2015).
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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 Rules 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 the 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.
33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.
33.5. That the procedure of an inquiry by a court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the criminal court concerned. In case of an inquiry, the court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of Section 94 of the 2015 Act, a declaration is made on the basis of evidence. Also, the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.
33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and appreciation of evidence adduced by the parties in each case.
::: Downloaded on - 08/07/2024 20:34:17 :::CIS 1733.7. This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a .
juvenile.
33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.
33.9. That when the determination of age is on rthe basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.
33.10. Any document which is in consonance with public documents, such as a matriculation certificate, could be accepted by the court or the JJ Board provided such public document is credible and authentic as per the provisions of the Evidence Act viz. Section 35 and other provisions. 33.11. Ossification test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."
13. The accused has relied upon a copy of his Aadhar card as proof of his age. The question whether a copy of an ::: Downloaded on - 08/07/2024 20:34:18 :::CIS 18 Aadhar card can be considered as proof of age or not has been considered by various High Courts. In ParvatiKumari v.
.
State of U.P., 2019 SCC OnLine All 7085, the Allahabad High Court issued a notice to the Unique Identification Authority of India (UIDAI), and an affidavit filed before the Allahabad High Court that Aadhar card is only a proof of identity, after considering the affidavit and other provisions of law.
Allahabad High Court held that the Aadhar Card is not proof of date of birth and address, as this information is supplied by the person in whose favour the Aadhar Card is issued. It was observed: -
"23. From the above, we can safely deduce that firstly Aadhaar Card is a document providing a conclusive connection between the photograph of the Aadhaar Card holder, his fingerprints and iris scan details, with the Aadhaar Number.
24. Secondly, we clearly deduce from the above that the other information namely name, date of birth, gender and address as entered in the Aadhaar Card, is furnished by the Aadhaar applicant at the time of authentication/ enrolment.
25. Although the regulations provide for the applicant to rely on a set of documents for giving information in regard to name, address and proof of date of birth, however, because the said information is merely given by the applicant, and is not authenticated by UIDAI at the time of authentication, the Aadhaar Card cannot be conclusive proof in regard to those entries.::: Downloaded on - 08/07/2024 20:34:18 :::CIS 19
26. It thus follows that in case of a dispute regarding the correctness of date of birth etc., the burden of proof lies with the resident/applicant/Aadhaar Card holder.
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27. From the above conclusion it stands demonstrated that in case a person relies on entries in an Aadhaar Card in regard to address, date of birth etc., on the basis of the Aadhaar Card, under the Evidence Act, it cannot be said/that the entries in those regards are conclusive proof of those facts. If question in these regards arises, the source of giving date of birth etc., are required to be verified in the process of investigation in criminal cases."
14. The Punjab & Haryana High Court also held in Navdeep Singh v. State of Punjab, 2021 SCC OnLine P&H 4553, that an Aadhar Card cannot be considered as firm proof of age. It was observed:
"5. Since there is no firm proof of age of either of the petitioners other than their Aadhar Cards, which is actually not a firm proof of age, if any of the petitioners are found to be below the marriageable age in terms of the provisions of the Prohibition of Child Marriage Act, 2006, this order shall not be construed to be a bar on any proceedings initiated under that Act, the offences committed under that Act being cognizable in terms of Section 15 thereof."
15. Similarly, in Manoj Kumar Yadav v. State of M.P., 2023 SCC OnLine MP 1919, the Madhya Pradesh High Court held that an Aadhar Card cannot be used to determine the age under the Juvenile Justice Act. It was observed;
::: Downloaded on - 08/07/2024 20:34:18 :::CIS 20"8. Therefore, in view of the statutory provisions available and there being no provision for taking into consideration the Aadhar card as a proof of age for presumption and determination of age, prescribed .
under Section 94 of the Act of 2015, I am of the opinion that there is no illegality in the impugned order, calling for interference in the revisional jurisdiction of this High Court."
16. A similar view was also taken in Sofikul Islam v.
State of Kerala, 2022 SCC OnLine Ker 5814.
17. No contrary judgment was brought to the notice of this Court. Hence, the Aadhar Card cannot be taken as proof of age
18. The police obtained a copy of the School Leaving Certificate from Madhya Vidyalaya, Janki Chowk, Tehsil Parvata, District Khagadiya, Bihar showing his date of birth as 04.03.2004. The FIR was registered on 17.04.2023; hence the accused was more than 18 years of age on the date of incident.
19. The accused produced a birth certificate showing his date of birth as 30.05.2006 to show that he was a juvenile on the date of the incident. This certificate was issued on 14.08.2023 and shows the date of registration as 14.08.2023.
Hence, it was prepared and issued after the registration of the FIR. The application for obtaining the birth certificate was filed ::: Downloaded on - 08/07/2024 20:34:18 :::CIS 21 by the father of the accused and bears the endorsement "approved 10.08.2023". It mentions the date of birth of the .
accused as 30.05.2006 and a certificate that the birth certificate was not prepared by any other institution and contains the true date of birth. Thus, this certificate was prepared based on the declaration made by the parents during the pendency of the proceedings and the same cannot be relied upon.
20. to Moreover, the certificate from the school was available and the reliance cannot be placed on the birth certificate or the ossification test conducted by the Medical Officer as per Rule 12.
21. No claim was made that the school leaving certificate is false or that the accused had not attended the School. Hence, the learned Trial Court had rightly placed reliance upon the School Leaving Certificate.
22. Hence, there is no infirmity in the order passed by the learned Trial Court. Consequently, present petition fails and the same is dismissed. The observation made hereinbefore shall remain confined to the disposal of the ::: Downloaded on - 08/07/2024 20:34:18 :::CIS 22 petition and will have no bearing whatsoever on the merits of the case.
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8th July 2024 (Rakesh Kainthla)
(Manish) Judge
r to
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