Madhya Pradesh High Court
Mubeen Hussain vs State Of M.P. on 6 May, 2016
1 M.Cr.C. No. 4090/2010
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
MISCELLANEOUS CRIMINAL CASE NO. 4090/2010
Mubeen Husain
Vs.
State of Madhya Pradesh
For the applicant : Shri D.R. Sharma, Advocate
For the State : Shri Mohd. Irshad, Panel Lawyer
PRESENT : HON'BLE MR. JUSTICE N.K. GUPTA
ORDER
(Delivered on this day of 6th May, 2016) The applicant has preferred the present petition under Section 482 of the Cr.P.C. against the order dated 23.10.2009 passed by 2nd Additional Sessions Judge, Gwalior in Criminal Revision No. 329/2009, whereby the revision filed by the applicant was dismissed and order dated 25.08.2009 passed by the JMFC, Gwalior in Criminal Case No. 3458/2009 was confirmed, in which it was found that the applicant was above 18 years of age at the time of incident and, therefore, he was not juvenile. The applicant has also challenged the order dated 25.08.2009 passed by the JMFC, Gwalior. (2) Facts of the case, in short, are that a criminal case was registered against the applicant along with other number of persons. A Crime No. 44/2009 was registered at Police Station Bahodapur for offence under Sections 302, 307 read 2 M.Cr.C. No. 4090/2010 with Section 149 of IPC and other crimes. After filing of the charge-sheet, an application was moved on behalf of the applicant alleging him to be a juvenile and, therefore, the JMFC, Gwalior after making complete enquiry, passed the order dated 25.08.2009 holding that the applicant Mubeen was above 18 years of age at the time of incident and, therefore, he was not a juvenile. Revision filed by the applicant was also dismissed.
(3) I have heard the learned counsel for the parties at length.
(4) Learned counsel for the applicant took the first ground that enquiry relating to age was to be done by the Juvenile Justice Board and, therefore, order dated 25.08.2009 passed by the JMFC, Gwalior was beyond his jurisdiction. Consequently, it was submitted that the incident took place on 21.03.2009 and x-ray was taken on 06.07.2009. The applicant has filed his mark-sheet of Class-V but it was not taken into consideration. In the alternate, it was submitted that the Apex Court has many times specified that in computation of age by ossification test, two years may be added on both the sides and, therefore, in the case of the applicant, two years should have been subtracted from the age computed by the doctors. In support of this contention, reliance has been placed upon the judgments passed by the Apex Court in cases of "Vishnu alias Undrya Vs. State of Maharashtra" [(2006) 1 SCC (Cri) 217], "Rajinder Chandra Vs. State of Chhattisgarh and another" [2002 (1) Supreme (Cr.) 43] and "Jaya Mala Vs. Home Secretary Government of Jammu and Kashmir and 3 M.Cr.C. No. 4090/2010 others" [AIR 1982 SC 1297].
(5) After considering the submissions of learned counsel for the parties, it should be made clear that when a charge-sheet is filed before the Magistrate for the case to be committed to the Court of Sessions then it is for the Magistrate to decide the objection raised by the accused as to whether he was juvenile or not. Unless it is established by a competent Magistrate or the trial Court, the applicant could not be referred to the Juvenile Justice Board and it is the applicant, who himself applied before the Magisterial Court that he was a juvenile and, therefore, the Magistrate, who decided the application was quite competent to make an enquiry and decide the application, hence, when the applicant himself filed an application before the Magistrate, he has no locus standi to challenge the jurisdiction of the Magistrate. The applicant has relied upon the mark-sheet of Class-V, which was issued by Primary Education Board of the area. If the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short "Rules, 2007) are perused then a specific procedure for consideration of age of an accused is prescribed. For ready reference, the provisions of sub-rules 1, 2, 3 and 4 of Rule 12 of the Rules, 2007, are reproduced as under:-
"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.4 M.Cr.C. No. 4090/2010
(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;
(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.
5 M.Cr.C. No. 4090/2010(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."
Such rules were prescribed in the year 2007 and since incident was of the year 2009, such rules were applicable for computation of the age. According to such rules, if mark-sheet of High School of the applicant Mubeen was available then it was the first basis for consideration of age. Secondly date of birth from the school first attended by that person should be taken into consideration. Thirdly a birth certificate given by Corporation or Municipal Authority should have been considered. However, it is clear that if document of first category is available then there is no need to seek for document of second category or third category. Similarly if document of first category was not available then in presence of document of second category, document of third category was not required and if the documents of all such categories were not available then a report of Medical Board was required to be sought for assessment of the age. (6) In the present case, the applicant Mubeen left his school after Class-V and, therefore, there was no possibility for him to get a mark-sheet or certificate of High School examination. The certificate, which was produced by the applicant, is not a certificate of the school first attended by the 6 M.Cr.C. No. 4090/2010 applicant and, therefore, the applicant did not have any certificate of second category. He did not file any birth certificate of Municipal Corporation or Panchayat, hence, he did not have the certificate of third category and, therefore, it was for the Magistrate, who received the charge-sheet to get the applicant examined with the Board constituted under the Juvenile Justice (Care and Protection of Children) Act, 2000. According to the Medical Board, age of the applicant Mubeen was between 20-22 years, whereas according to the report given by the Forensic Science Department of G.R. Medical College, age of the applicant was 20-22 years. In both the reports, applicant was found to be above 20 years of age. As submitted by the learned counsel for the applicant, that incident took place on 23.01.2009 and X-ray was taken on 06.07.2003. Thus, the age of the applicant was observed after six months of the incident and, therefore, such argument advanced by the learned counsel for the applicant cannot be accepted as such. However, it should be made clear that since ossification test depends upon the fusion of various joints and when all joints are fused then on taking X-ray thereafter, the age of the person should be assessed to be above 20 years and if he would be of 25 years of age then still by ossification test, it cannot be said that he was 25 years of age. Once all the joints are fused then thereafter further development in age of the person cannot be assessed with help of ossification test. When the doctors found the applicant to be in between 20-22 years of age then possibility cannot be ruled out that he had long ago completed his 18 years. However, if there is a doubt then 7 M.Cr.C. No. 4090/2010 benefit of doubt is always given to the accused and, therefore, in computation of age, six months may be reduced, which was a period in between the date of incident and date of radio logical examination.
(7) Learned counsel for the applicant has relied upon the judgments of the Apex Court in cases of "Vijay Singh Vs. State of Delhi" [2013 Cr.L.R. (SC) 181], "Abuzar Hossain alias Gulam Hossain" [ (2012) 10 SCC 489] and "Hariram Vs. State of Rajasthan and another" [ (2009) 13 SCC 211], to show that Hon'ble the Apex Court relied upon the various school transfer certificates while consideration of the age and also two years were deducted from the age computed by ossification test. However, it would be apparent that all such judgments were passed by the Apex Court when an SLP was filed after decision of a criminal appeal and, therefore, at that stage, it was not possible for the Apex Court to get the accused examined by ossification test and to get a conclusion. During the pendency of trial, appeal and SLP concerned, accused must have grown up and, therefore, at that stage, when objection was taken that the accused was juvenile then Rule 12 of the Rules, 2007 may not have been applied as it is but in the present case, the procedure as given by Rule 12 is required to be followed. Also according to the provisions under Rule 12(3)
(b) of the Rules, 2007, only one year can be added in lower side on the conclusion drawn by the concerned Board constituted for assessment of the age of the accused on medical side. In the aforesaid judgments, the Apex Court did not consider that particular rule while deducting two years of 8 M.Cr.C. No. 4090/2010 age of the juvenile. When it is specifically prescribed that only deduction of one year can be done in the assessment done by the Board then by doing so, age of the applicant Mubeen could be assessed in between 19-21 years and period in between date of incident and ossification test is deducted then he was 18 ½ years old at the time of incident. No further reduction can be done in the computation of age and, hence, both the Courts below have rightly found that the applicant Mubeen was not a juvenile.
(8) On the basis of the aforesaid discussions, there is no reason to invoke inherent powers of this Court in favour of the applicant. The present petition is nothing but a second revision in garb of Section 482 of the Cr.P.C. However, the Courts below have rightly found that the applicant Mubeen was not a juvenile at the time of incident then inherent powers of this Court cannot be exercised in favour of the applicant. Consequently, the petition under Section 482 of the Cr.P.C. filed by the applicant - Mubin is hereby dismissed. (9) Due to pendeny of this petition, it appears that record of the Sessions Trial No. 24/2010 is kept in the High Court. The same be immediately returned to the Sessions Court along with copy of this order so that the Sessions Court may proceed with the case.
(N.K. GUPTA) JUDGE (06/05/2016) Abhi