Madhya Pradesh High Court
Akhilesh Pal vs The State Of Madhya Pradesh on 23 June, 2016
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Revision No.925/2016
Akhilesh Pal
vs.
State of M.P.
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Present:- Hon'ble Shri Justice C.V. Sirpurkar
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Shri Y.P. Sharma, Advocate for the petitioner.
Shri Y D Yadav, panel lawyer for the respondent/State.
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ORDER
(30-06-2016)
1. This criminal revision filed on behalf of the petitioner/accused Akhilesh Pal is directed against the order dated 29.10.2015 passed by the Court of Session Judge, Sidhi, in Sessions Trial No.143/2015, whereby the application dated 23.9.2015 filed on behalf of the accused Akhilesh Pal for treating him as a juvenile, was dismissed.
2. The facts giving rise to this criminal revision may briefly be stated thus: Accused Akhilesh Pal, along with his father Harakhlal, is facing trial before the Sessions Judge, Sidhi for an offence punishable under Section 302 of the IPC. His brother Dinesh Pal has been proceeded against before the Juvenile Justice Board for the same offence. The application was moved on behalf of the accused Akhilesh Pal on 23.09.2015 claiming that as per the mark-sheet issued by the school, his date of birth is 10.04.1998. As such, on the date of the offence, i.e, 27.6.2015, his age was 17 years 2 months and 18 days; therefore, the charge sheet against him before the Court of Sessions is not maintainable. Consequently, it was prayed that the police be directed to file a charge sheet against accused Akhilesh Pal before the Juvenile Justice Board.
3. Learned Session Judge conducted a detailed enquiry in the matter allowing the accused Akhilesh Pal to examine witness and file documents in support of his claim that he is a juvenile and thereafter, by impugned order held that the accused Akhilesh Pal has failed to prove that on the date of the offence, his age was less than 18 years.
4. A perusal of the documents filed along with this criminal revision reveals that the accused examined Ramlal Pal, his uncle, Arjun Prasad Mishra, Head Master of Government Middle School, Baghor, Tehsil Sinhawal, District-Sidhi, Mahavir Sharma, District Co-ordinator of Saraswati Shishu Mandir and Rajnarayan Tripathi, the priest, who had prepared horoscope of accused Akhilesh Pal. He also examined N.N, Mishra, Sub-Inspector of police. The petitioner filed and proved mark-list-cum-certificate of the petitioner accused Akhilesh Pal issued by Saraswati Shishu Mandir, Sidhi of the primary certificate examination held in the year, 2007 (Ex.A-I-C). In addition thereto, the progress report of Government Middle School, Baghor for the education session, 2010-11 was also filed. In addition to aforesaid documents, a certificate issued by the Head Master of Government Middle School, Baghor Sidhi (Ex.A-3-C), the family tree of the accused (Ex.A5), copy of Scholar Register and copy of arrest memo was also filed.
5. On the basis of aforesaid material, learned Session Judge concluded that:
(a) If the date of birth of the accused is taken as 10.04.1998, it would mean that he had taken admission in class-I at the age of 4 years and 3 months, which is below prescribed age limit of 5 years for admission in class-I.
(b) The scholar register of Saraswati Shishu Mandir, Baghor, has perished on account of getting wet and eaten by termite;
therefore, it is not clear as to on what basis the date of birth of the petitioner Akhilesh Pal was recorded as 10.04.1998.
(c) Ramlal, uncle of the petitioner Akihlesh Pal has stated that Akhilesh Pal is the eldest son. His sister Puja is already married. Minimum age of marriage is 18 years; therefore, accused Akhilesh Pal has to be above 18 years of age.
(d) In the documents filed on behalf of the Akhilesh Pal, his fatherâÂÂs name is shown as Harshlal; whereas, in the evidence collected during investigation, his fatherâÂÂs name is stated to be Harakhlal.
(e) It has not been specified whether the horoscope is that of the accused or that of his brother.
(f) The police had filed charge sheet against the co-accused Dinesh Pal before the Juvenile Justice Board; whereas, the charge sheet against accused Akhilesh Pal has been filed in the Sessions Court; as such, during the investigation the police had found that he was not a juvenile.
6. On the basis of aforesaid conclusion, learned Session Judge held that the school record filed in the case belonged to one Akhilesh Pal son of Harshlal whereas the accused in the case is Akhilesh Pal son of Harakhlal. These two are different persons. Therefore, the accused Akhilesh Pal was not held to be juvenile on the date of the offence.
7. Learned Panel Lawyer for the respondent State on the other hand has supported the impugned order and has contended that the school record being of doubtful character, learned Court below committed no error in discarding the same and holding that on the date of the offence, accused Akhilesh Pal was not below 18 years of age.
8. On consideration of the record of the case, authorities cited on either side and the arguments advanced on their behalf, this Court is of the considered opinion that the application under Section 482 of the Cr.P.C deserves to be allowed for the reasons hereinafter Stated:
9. The impugned order has been assailed before this Court mainly on the grounds that the entire approach of learned Courts below with regard to the determination of the age of the applicant has been erroneous and contrary to the schemes of Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to in this order as âÂÂthe RulesâÂÂ). It has further been contended that contrary to the judgments rendered by Apex Court, learned Courts below, instead of relying upon authentic Mark-Sheet duly proved by School Authorities, had indulged in a roving enquiry regarding the probative force and reliability of the Mark-Sheet and thus have contravened the provisions of Rule 12 (3) of the Rules; therefore, it has been prayed that the orders of learned Courts below be set-aside and petitioner Akhilesh Pal be directed to be prosecuted before the Juvenile Justice Board.
10. The object of the Juvenile Justice (Care and Protection of Children) Act, 2000, is to lay down the basic principles for administering justice to a juvenile in conflict with law and also to make effective provisions for his rehabilitation and social re-integration. The idea is to reclaim the juvenile in conflict with law or the juvenile in need of care and protection, as a useful member of society.
11. In order to attain aforementioned objective, the act envisages a scheme which provides for soft treatment for juveniles regardless of the gravity of the offence alleged to have been committed by him. For this reason, the plea of juvenility is often sought to be used as a legal umbrella to shield oneself from consequences of one's misdeeds. Thus, where a claim of juvenility is made it is of paramount importance to determine the age of alleged juvenile as accurately as possible.
12. A Division Bench of this Court of which I was a member, has held in paragraph nos. 12 and 13 of the judgment dated 06.01.2015 rendered in Criminal Appeal No.356/2014 (Ramesh Yadav Vs. State of Madhya Pradesh) as follows:
12. The argument advanced by learned counsel for the appellant is not acceptable in view of Rule 12 of Juvenile Justice [Care and Protection of Children] Rules 2007, which lays down the procedure for determination of the age of Juvenile in conflict with law. At the outset, applicability of Juvenile Justice [Care and Protection of Children] Rules, 2007 to the present case has been assailed on behalf of the appellant. It has been contended that State Government has framed Juvenile Justice [Care and Protection of Children] Rules,2003 which would be applicable to the present case.
There is no provision corresponding to Rule 12 of 2007 Rules in 2003 Rules.
13. It may be noted here that the State Government had framed 2003 Rules pursuant to Juvenile Justice [Care and Protection of Children] Rules, 2001 framed by the Central Government. By virtue of Section 100 of the 2007 Rules, the 2001 Rules have been repealed. Moreover, Rule 96 of the 2007 Rules declares in no uncertain terms that until Rules conforming to the 2007 Rules under section 68 of the Juvenile Justice (Care and Protection of Children) Act, 2000, are framed by the State Government concerned, 2007 Rules shall mutatis mutandis apply in that State. No rules conforming to 2007 Rules have been framed by the Government of Madhya Pradesh. As such, there is no doubt that 2003 Rules framed by the State Government are impliedly repealed by virtue of section 100 of 2007 Rules and until and unless the Rules in conformity with 2007 Central Rules, are framed by the Government of Madhya Pradesh, 2007 Rules framed by the Centre Government, shall prevail in the State of Madhya Pradesh.
13. Thus, the inquiry for determination of the age of the applicant is required to be held in accordance with the provisions of the 2000 Act and the 2007 Rules. Rule 2 (k) and
(l) defines "Juvenile" and "Juvenile in conflict with law" as follows.
2. Definitions.- In this Act, unless the context otherwise requires,-
2 (k) "juvenile" or "child" means a person who has not completed eighteenth year of age;
(l) âÂÂjuvenile in conflict with lawâ means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence;
So the relevant date is the date of offence and not the date on which the juvenile is brought before the Board or the Court.
14. Rules 12 (3) and (4) of aforesaid Rules read as follows:
(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;
(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.
15. With regard to the nature and scope of the enquiry, the Supreme Court had observed in the case of Ashwani Kumar Saxena Vs. State of Madhya Pradesh (2012) 09 SCC 750 at Page 762 that:
âÂÂ25. 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 âÂÂinquiryâ 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 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 7-A has used the expressions âÂÂcourt shall make an inquiryâÂÂ, âÂÂtake such evidence as may be necessaryâ and âÂÂbut not an affidavitâÂÂ. 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.âÂÂ
16. It has also been held in the case of Ashwani Kumar Saxena (supra) at page 763 that:
âÂÂAge determination inquiryâ contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
17. Under what conditions opinion from a duly constituted Medical Board should be sought, has been clarified by Supreme Court in the case of Shanawaz Vs. State of U.P and Another, AIR 2011 Supreme Court 3107. Paragraph No.19 of the judgment reads as follows:
19. Rule 12 of the Rules categorically envisages that the medical opinion from the medical board should be sought only when the matriculation certificate or school certificate or any birth certificate issued by a corporation or by any Panchayat or municipality is not available. We are of the view that though the Board has correctly accepted the entry relating to the date of birth in the mark sheet and school certificate, the Additional Sessions Judge and the High Court committed a grave error in determining the age of the appellant ignoring the date of birth mentioned in those documents which is illegal, erroneous and contrary to the Rules.
18. In the backdrop of aforesaid legal position, when the Court reverts back to the facts of the case at hand, it is found that rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, has not even been referred to by learned Sessions Judge. The manner in which the enquiry has been conducted, makes it clear that the mandate of sub-rule 3 and 4 of rule 12 of 2007 Rules, has not been followed. Instead, learned Session Judge has entered into a roving enquiry as to the source of information on the basis of which entry was made in the Scholar Register. On the basis of which the entry of date of birth was recorded in the mark sheet. If the learned Sessions Judge was of the view that the school record was of doubtful character, the only course open to learned Sessions Judge was to have called for and pressed into service report from a duly constituted Medical Board as provided under rule 12 (3) (b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007.
19. In aforesaid view of the matter, it is clear that learned Session Judge fell in error by entering into a roving enquiry with regard to age of the accused Akhilesh Pal; as such, the impugned order is not sustainable in the eyes of law.
20. Consequently, this application under Section 482 of the Cr.P.C. is allowed and the impugned order is set-aside. Learned Session Judge, Sidhi is directed to hold a fresh enquiry for determination of the age of accused Akhilesh Pal strictly within the ambit of Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 and in the light of the authorities herein before adverted to and record a finding as to the age of the accused on the date of the offence and proceed in the matter accordingly.
(C V SIRPURKAR) JUDGE