Patna High Court - Orders
Santosh Sonar @ Santosh Verma vs The State Of Bihar on 16 September, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.25770 of 2014
Arising Out of PS.Case No. -115 Year- 2013 Thana -DUMRAUN District- BUXAR
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Santosh Sonar @ Santosh Verma S/o Late Bhuneshwar Verma R/o
Chhotaki Pokhar, Dumrain, P.S.- Dumraon, District- Buxar
.... .... Petitioner/s
Versus
The State of Bihar
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Bachan Jee Ojha, Adv
For the Opposite Party/s : Mr. Dr.Indiwar Kumari, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL ORDER
4 16-09-2014Heard learned counsel for the petitioner as well as learned APP for the State.
2. Sneha Kumari aged about 14 years was kidnapped by Santosh Sonar with the assistance of Narendra Goswami and for that Renu Devi, her mother has instituted this case.
3. It has been submitted on behalf of the petitioner that victim, Sneha Kumari was traced out and was accordingly examined under Section 164 Cr.P.C. wherein she stated that on her own volition, she had married with Santosh Sonar on 06.06.2013 at Ramrekha Ghat Temple, Buxar and since thereafter, the spouse left for Bangalore. After coming to know about the institution of case, they arrived here. She has volunteered her age to be of 17 years and the Court has also assessed her age to be of 17 years. It has also been submitted that during course of medical Patna High Court Cr.Misc. No.25770 of 2014 (4) dt.16-09-2014 2 examination, her age has been assessed in between 16-17 years.
The medical board was constituted on 20.12.2013 and having variance of two years, again the girl was found to be major.
4. In the aforesaid background, the victim being major as well as taking into account her statement under Section 164 Cr.P.C., petitioner be enlarged on bail. Learned counsel for the petitioner also placed reliance upon 2008(3) PLJR 267 & 2003 (3) PLJR 291.
5. At the other end, learned APP opposed the prayer for bail and submitted that there happens to be specific disclosure in the written report regarding age of the victim on the day of her kidnapping to be 14 years. The age disclosed by the parents has to be accepted on priority basis than any other evidence. Consequent thereupon, petitioner does not deserve bail.
6. Now-a-days, it has become chronic case and major part of Court's time is being misutilized having the cases either of allurement, elopement or kidnapping of adolescents. Either it be a psychological case or affection, curiosity towards the opposite sex or on account of present polluted environment intruded through electronic inventions/gadgets as well as free access to the internet.
Most of the cases belong to teenage. Irrespective of its adverse impact as well as whether the so-called marriage without Patna High Court Cr.Misc. No.25770 of 2014 (4) dt.16-09-2014 3 following "Saptapadi", whether happens to be recognizable in the eye of law is another circumstance. Therefore, the major issue that has come up before the Court times without number is with regard to status of the victim whether she happens to be 18 years and above, the crucial age identified under Section 361 of the IPC so far female is concerned.
7. The Hon'ble Apex Court dealt with the matter in detail as well as deficiency persisting in the code whereunder there happens to be complete absence of procedure with regard to ascertainment of the age and the same has been decided in the case of Jernail Singh v. State of Haryana 2013 Cr.L.J. 3976 and concluded the same in its finality by laying down the procedure:-
"20. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads 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.
(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 Patna High Court Cr.Misc. No.25770 of 2014 (4) dt.16-09-2014 4 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.
(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 Patna High Court Cr.Misc. No.25770 of 2014 (4) dt.16-09-2014 5 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.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.
Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW- PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only Patna High Court Cr.Misc. No.25770 of 2014 (4) dt.16-09-2014 6 in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.
(emphasis made by me)
8. This issue has again been taken up by the Hon'ble Apex Court in the case of Mahadeo v. State of Maharashtra as reported in (2013) 14 SCC 637 wherein it has been held as follows:-
11. Though the learned counsel for the appellant attempted to find fault with the said conclusion by making reference to the evidence of PW 8, the doctor, who examined the prosecutrix and who in her evidence stated that on her examination she could state that the age of the prosecutrix could have been between 17 to 25 years, it will have to be held that the rejection of the said submission even by the trial court was perfectly in order and justified. The trial court has found that to rely upon the said version of PW 8, the doctor, scientific examination of the prosecutrix such as ossification test to ascertain the exact age should have been conducted which was not done in the present case, therefore, merely based on the opinion of PW 8, the age of the prosecutrix could not be acted upon.
12. We can also in this connection make Patna High Court Cr.Misc. No.25770 of 2014 (4) dt.16-09-2014 7 reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12(3) of the said Rules, it is stated that:
"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, by 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;"
Under Rule 12 (3) (b), it is specifically provided that only in the absence of alternative methods described under Rules 12 (3) (a) (i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well.
9. The age so ascertained, as submitted by learned counsel for the petitioner does not satisfy any of the ingredients so prescribed by the Hon'ble Apex Court and on account thereof, I am not convinced to accede to the prayer of the petitioner.
10. Both the decisions cited on behalf of petitioner do not refer the mode of ascertainment of age of the victim. First of all, there should be ascertainment of age and then other aspect will Patna High Court Cr.Misc. No.25770 of 2014 (4) dt.16-09-2014 8 follow.
11. Consequent thereupon, the learned lower court, i.e. Additional Sessions Judge-1st, Buxar is directed to inquire into the matter with regard to status of the victim whether she happens to be 18 or above years of age and in case, he finds so, will release the petitioner on bail. In case, the girl is found less than 18 years, the law will take its own course.
12. With the aforesaid observation, the instant petition is disposed of.
(Aditya Kumar Trivedi, J)
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