Punjab-Haryana High Court
Azad Alias Ismail vs State Of Haryana on 17 February, 2023
Bench: Harinder Singh Sidhu, Lalit Batra
Neutral Citation No:=2023:PHHC:030479-DB
CRM-M-45406-2022 (O&M) -:1 :-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CRM-M-45406-2022 (O&M).
Date of Decision: 17.02.2023.
Azad @ Ismail ....Petitioner.
VERSUS
State of Haryana ....Respondent.
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CORAM : HON'BLE MR. JUSTICE HARINDER SINGH SIDHU
HON'BLE MR. JUSTICE LALIT BATRA
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Argued by: Mr. Manish Soni, Advocate for petitioner.
Ms. Tanisha Peshawaria, Deputy Advocate General, Haryana.
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LALIT BATRA, J.
This petition under Section 482 Cr.P.C. has been moved by petitioner-Azad @ Ismail seeking order for inquiry to determine his age for declaring him "juvenile in conflict with the law", in case FIR No.898 dated 15.12.2014 under Sections 120-B, 326-A and 452 IPC, registered at Police Station Palam Vihar, Gurgaon.
2. Learned counsel for the petitioner has inter alia contended that in case FIR No.898 dated 15.12.2014, as detailed above, petitioner was held guilty, convicted and sentenced for the commission of aforesaid offences, vide judgment of conviction dated 30.01.2017 and order on quantum of sentence dated 08.02.2017 passed by learned Additional Sessions Judge, Gurgaon. He further contended that appeal (CRA-D-860-DB-2017) preferred by petitioner against his conviction and sentence, was dismissed 1 of 11 ::: Downloaded on - 31-05-2023 16:23:27 ::: Neutral Citation No:=2023:PHHC:030479-DB CRM-M-45406-2022 (O&M) -:2 :- by this Court, vide judgment dated 28.05.2019. He further contended that no appeal was preferred by the petitioner against judgment dated 28.05.2019.
Learned counsel for the petitioner further contended that incident had occurred on 15.12.2014, whereas date of birth of petitioner is 21.06.1998, therefore, at the time of commission of offence, he was aged 16 years, 05 months and 25 days and, thus, at the relevant time, he was below the age of 18 years and was a 'juvenile'. He further contended that though at the time of filing the aforesaid appeal, petitioner had disclosed to his counsel that he was juvenile at the time of commission of offence and further 'School Leaving Certificate' dated 19.08.2015 (Annexure P-2) issued by Principal, Jamia Anvarul Huda, Kotkadar, District Bijnor and 'Birth Certificate' dated 29.05.2017 (Annexure P-3) issued by CMS Public Service Centre, Bijnor, were annexed with the appeal, however, no such issue has either been raised or adjudicated by the Court. He further urged that aforesaid documents are admissible in law and are sufficient to show that petitioner was a juvenile in conflict with the law on the date of incident, however, due to ignorance of law, the plea of juvenility could not be raised before the Trial Court.
Learned counsel for the petitioner further contended that when the offence was committed the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter to be referred as 'Act, 2000'), were in force. He further contended that by virtue of provisions of Act, 2000, age of juvenility was upto 18 years and as such Juvenile Justice Board constituted under Section 4 of said Act, has jurisdiction to try a juvenile in conflict with the law.
2 of 11 ::: Downloaded on - 31-05-2023 16:23:28 ::: Neutral Citation No:=2023:PHHC:030479-DB CRM-M-45406-2022 (O&M) -:3 :- He further contended that under Section 7-A of Act, 2000, an accused is entitled to raise a claim of juvenility before any Court, even after the final disposal of the case and to this effect reliance has been placed upon rulings Ashok vs. State of Madhya Pradesh, Special Leave to Appeal (Criminal) No.643 of 2020 decided on 29.11.2021, Sanjay Patel & Anr. vs. State of Uttar Pradesh, 2022 AIR (Supreme Court) 1852 and Vinod Katara vs. State of Uttar Pradesh, Writ Petition (Criminal) No.121 of 2022 decided on 12.09.2022 by Hon'ble Supreme Court. He further contended that such a claim is required to be determined in accordance with the provisions of Act, 2000.
Learned counsel for petitioner further contended that Section 7- A of the Act, 2000 read with Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter to be referred as 'Rules, 2007'), contemplates inquiry, therefore, petitioner is seeking age determination inquiry as he is raising issue of juvenility before this Court after dismissal of his appeal by this Court, vide judgment dated 28.05.2019. He further contended that documents (Annexures P-2 and P-3) prima facie show that petitioner is to be treated as 'juvenile in conflict with law' under the provisions of Act, 2000, and, therefore, by virtue of provisions of Section 7-A of Act, 2000 read with Rule 12 of Rules, 2007, age determination inquiry should be ordered to be conducted to find out age of petitioner on the date of commission of offence.
3. On the other hand, learned State counsel has vehemently argued that since the plea of juvenility was never raised by the petitioner at any 3 of 11 ::: Downloaded on - 31-05-2023 16:23:28 ::: Neutral Citation No:=2023:PHHC:030479-DB CRM-M-45406-2022 (O&M) -:4 :- point of time either before the Trial Court or this Court during appeal, he was rightly dealt with as an accused and eventually he was convicted and sentenced by the Trial Court and the said judgment and order on quantum of sentence were upheld in appeal by this Court.
4. We have heard learned counsel for the parties and have carefully gone through the record of the case.
5. The first and the foremost issue that arises for our consideration in this petition is in regard to the applicability of relevant Act.
6. In the aforesaid context, we must look into the relevant dates as follows:-
(a) The date of the incident is 15.12.2014. Thus, on the date of incident, the Act, 2000, was in force. Act, 2000, inter alia raised the age of juvenility from 16 to 18 years. In terms of Section 20 of Act, 2000, the determination of juvenility was required to be done in all pending matters in accordance with Section 2(l) of said Act. Petitioner was arrested in this case on 19.12.2014 and his trial commenced and eventually he was convicted and sentenced for the commission of above said offences on 30.01.2017 and 08.02.2017 respectively. The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter to be referred as 'Act, 2015'), came into force on 15.01.2016. Thus, on the date of conviction and sentence of petitioner, Act, 2015, was in force.
(b) The appeal preferred by the petitioner against his conviction and sentence passed by the Trial Court, was dismissed by this Court, vide judgment dated 28.05.2019.
(c) No further appeal was preferred by the petitioner against judgment dated 28.05.2019.
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7. In view of above, we now proceed to consider the matter further in terms of provisions of Act, 2000.
8. Section 7-A of the Act, 2000 as inserted by Act 33 of 2006 with effect from 22.08.2006 provided as follows:-
"7-A. Procedure to be followed when claim of juvenility is raised before any Court.-(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section(l), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect."
9. Section 7-A of Act, 2000, provides that claim of juvenility can thus be raised before any Court, at any stage, even after final disposal of the case and if the Court finds a person to be a juvenile on the date of commission of the offence, it is to forward the juvenile to the Board for passing appropriate orders, and the sentence, if any, passed by a Court, shall 5 of 11 ::: Downloaded on - 31-05-2023 16:23:28 ::: Neutral Citation No:=2023:PHHC:030479-DB CRM-M-45406-2022 (O&M) -:6 :- be deemed to have no effect.
10. Section 16 of Act, 2000, provides as hereunder:-
"16. Order that may not be passed against juvenile.
(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or imprisonment for any term which may extend to imprisonment for life, or committed to prison in default of payment of fine or in default of furnishing security:
Provided that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is of so serious in nature and that his conduct and behavior have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government.
(2) On receipt of a report from a Board under sub-section
(l), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit:
Provided that the period of detention so ordered shall not exceed in any case the maximum period provided under Section 15 of this Act."
11. The maximum period of detention in respect of a juvenile is three years as provided in Section 15(1)(g) of Act, 2000. The said Section 6 of 11 ::: Downloaded on - 31-05-2023 16:23:28 ::: Neutral Citation No:=2023:PHHC:030479-DB CRM-M-45406-2022 (O&M) -:7 :- provides that where the Juvenile Justice Board is satisfied on inquiry that the juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Juvenile Justice Board may, if it so thinks fit, make an order directing the juvenile to be sent to a special home for a period of three years.
12. The Act, 2000, has been repealed and replaced by the Act, 2015.
13. Section 21 of the Act, 2015, provides as follows:-
"21. Order that may not be passed against a child in conflict with law. - No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Indian Penal Code (45 of 1860) or any other law for the time being in force."
14. Section 25 of the Act, 2015, deals with the special provision in respect of pending cases and begins with a non obstante clause and reads as under:-
"25. Special provision in respect of pending cases.- Notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of this Act, shall be continued in that Board or court as if this Act had not been enacted."
15. In view of Section 7-A of Act, 2000, applicable to petitioner, the plea of juvenility could be raised in any Court, at any stage, even after the final disposal of the case. In the case of petitioner, his appeal has already been dismissed by this Court on 28.05.2019. However, this Court still is 7 of 11 ::: Downloaded on - 31-05-2023 16:23:28 ::: Neutral Citation No:=2023:PHHC:030479-DB CRM-M-45406-2022 (O&M) -:8 :- obliged to consider the plea of juvenility taken by the petitioner and grant him appropriate relief. The fact that Act, 2000 has later been replaced by the Act, 2015, would make no difference.
16. In regard to the nature of the inquiry to be conducted by the Court in determining the age under Section 7-A of Act, 2000, the procedure to be followed for the determination of age is provided under sub-rule (3) of Rule 12 of the Rules, 2007, which reads as under:-
"12. Procedure to be followed in determination of age.-- (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.
8 of 11 ::: Downloaded on - 31-05-2023 16:23:28 ::: Neutral Citation No:=2023:PHHC:030479-DB CRM-M-45406-2022 (O&M) -:9 :- 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."
Sub-rule (3) of the Rule 12 of Rules, 2007, clearly mandates that while conducting an inquiry about the juvenility of an accused, the Juvenile Justice Board would seek evidence by obtaining the matriculation or equivalent certificates and in the absence whereof the date of birth certificate from the school first attended and in absence whereof the birth certificate given by a Corporation or a Municipal Authority or Panchayat. It is made clear by sub-clause (b) that only in the absence of the aforesaid three documents, medical information would be sought from a duly constituted Medical Board which will declare the age of the juvenile or child. Thus, it is only in the absence of the aforesaid documents that the Juvenile Justice Board could have asked for medical information/ossification test.
17. The Act, 2000 stands repealed by the Act, 2015. The procedure for determining the age is now part of Section 94 of Act, 2015, which was earlier provided under the above mentioned Rule 12 of the Rules, 2007.
18. We find that the procedure prescribed in Rule 12 of Rules, 2007, is not materially different than the provisions of Section 94 of Act, 2015, to determine the age of the person. There are minor variations as the 9 of 11 ::: Downloaded on - 31-05-2023 16:23:28 ::: Neutral Citation No:=2023:PHHC:030479-DB CRM-M-45406-2022 (O&M) - : 10 : -
Rule 12(3)(a)(i) and (ii) of the Rules, 2007, have been clubbed together with slight change in the language.
19. Petitioner has placed on record 'School Leaving Certificate' dated 19.08.2015 (Annexure P-2) issued by Principal, Jamia Anvarul Huda, Kotkadar, District Bijnor as well as 'Birth Certificate' dated 29.05.2017 (Annexure P-3) issued by CMS Public Service Centre, Bijnor, wherein date of birth of petitioner has been recorded '21.06.1998'. The incident which led to the conviction of petitioner took place on 15.12.2014. The petitioner claims that he was born on 21.06.1998 and as such on the date of commission of offence, he was aged 16 years, 05 months and 25 days.
Therefore, the material placed before this Court by the petitioner, prima facie, suggests that he was a 'juvenile' as defined in the Act, 2000, on the date of commission of offence.
20. In view of above, instant application is disposed of with the direction to Sessions Court, Gurugram, to examine the claim of petitioner to juvenility in regard with law and submit a report to this Court within one month from the date of communication of this order. The Sessions Court shall be entitled to examine the authenticity and genuineness of the documents sought to be relied upon by the petitioner, considering that the documents do not appear to be contemporaneous. In the event the documents are found to be questionable/unreliable, it will be open to the Sessions Court to have the petitioner medically examined by taking an ossification test or any other modern recognized method of age determination.
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21. Sessions Court is directed to issue notice to complainant before proceeding further in the matter.
22. The Sessions Court shall submit its report as regards the aforesaid to this Court within specified time from the date of communication of this order.
23. The Registry is directed to forward one copy of this order to the Sessions Court, Gurugram.
24. Learned State counsel is requested to take appropriate steps to facilitate the Sessions Court to complete the inquiry.
25. Notify this matter after a period of one month alongwith the report that may be received from the Sessions Court, Gurugram. The final order shall be passed after perusal of the report as received from the Sessions Court, Gurugram.
(Harinder Singh Sidhu) (Lalit Batra)
Judge Judge
17.02.2023
jitender
Whether speaking/ reasoned : Yes/ No
Whether Reportable : Yes/ No
Neutral Citation No:=2023:PHHC:030479-DB
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