Rahul Panwar vs State Of M.P. on 18 August, 2022

[Cites 21, Cited by 15]

Madhya Pradesh High Court

Rahul Panwar vs State Of M.P. on 18 August, 2022

This criminal revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") read with 102 of the 2 Cr. R. No.71/2021 Juvenile Justice (Protection of Children and Care) Act, 2015 (in short "the Act of 2015") has been preferred against the order dated 24.09.2020 passed by the Court of Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "the SC/ST Act"), Ujjain in Special Case No.83/2020, whereby applicant's application dated 21.08.2020 filed under Section 9(2) of the Act of 2015, for transferring the case to the Juvenile Justice Board for trial was rejected.

2. Facts giving rise to this revision are that applicant is facing a criminal trial under Special Case No.83/2020 before the Court of Special Judge, SC/ST Act for the offences punishable under Sections 363, 366 and 376(2) of IPC alongwith Sections 3/4 and 5/6 of the Protection of Children from Sexual Offences Act, 2012 (in short "the POCSO Act") and Section 3(1)(w)

(ii) of the SC/ST Act. During the trial, the applicant filed an application dated 21.08.2020 to refer the matter to the Juvenile Justice Board for determination of his age as well as for trial of the case, as at the time of the incident, he was below 18 years of age and was minor at that time. Learned Trial Court conducted an inquiry under Section 9(2) of the Act of 2015. ossification test of the applicant was conducted and statements of applicant's parents alongwith Suresh Chandra Malviya, Teacher of Primary School, Kandariya, who produced the school scholar register entry of the applicant were recorded. Thereafter, vide impugned order dated 24.09.2020, rejected his application on the ground that as per his Aadhar card entry and ossification test report, the applicant was major at the time of the incident.

3. Learned counsel for the applicant submits that as per the school scholar register entry (Annexure-A/2), applicant was below 18 years of age at the time of the incident, as his date of birth was written therein as 03.05.2003. Learned Trial Court displaying the school scholar registry entry relied on the entry of Aadhar card and without jurisdiction got conducted 3 Cr. R. No.71/2021 applicant's ossification test and determined his age about 19 years, which is contrary to the law, therefore, impugned order dated 24.09.2020 is not sustainable and is liable to be set aside and prays that matter be referred to the Juvenile Board for appropriate action.

4. To bolster his submissions, counsel for the applicant has placed reliance upon the following judgements:-

1) Mukarrab and others vs. State of Uttar Pradesh, 2017 (2) SCC 210

2) Sanat Kumar Yadav vs. State of Madhya Pradesh, 2017 SCC Online MP 252

3) Rahul vs. State of Madhya Pradesh, 2019 SCC Online MP 5176

4) Rajinder Chandra vs. State of Chhattisgarh and another, 2002 (2) SCC 287

5) Jugraj S/o Hathichand Kopa Ahir vs. State of M.P., 2003 (4) MPLJ 136

6) Ummed Singh vs. State of M.P., 2007 (3) MPLJ 214

7) Sharda Soni @ Sonu Soni vs. State of M.P., ILR (2018) MP 2507

8) Bharti Jatav vs. State of M.P. decided on 14.08.2019 in Cr.A. No.1004/2014.

5. Learned Public Prosecutor for the non-applicant/State has opposed the prayer and submits that the entries of the school scholar register and Aadhar card with regard to the date of birth of the applicant were contradictory and were found unreliable, therefore, learned Trial Court was having jurisdiction to get conducted applicant's ossification test, according to which he was not found minor at the time of the incident. Learned Trial Court has not committed any error in rejecting the applicant's application filed under Section 9(2) of the Act of 2015.

6. Heard learned counsel for both the parties at length and perused the 4 Cr. R. No.71/2021 record.

7. From the perusal of the provisions of the Act of 2015 and also from the observations made by the Hon'ble Apex Court in the case of Rishipal Singh Solanki vs. State of U.P. & Others [2021 SCC Online SC 1079], it is apparent that a claim of juvenility can 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 and if an application is filed before the Court claiming juvenility, the provision of sub-section 2 of Sec 94 of the Act of 2015 would have to be applied or read alongwith sub-section 2 of Section 9, so as to seek evidence for the purpose of recording of finding stating the age of the person as nearly as may be. Relevant paragraph of the aforesaid judgement passed in the case of Rishipal Singh Solanki (supra) is as under:

''32. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

(i) 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 the rejection of such a claim. It can also be raised for the first time before this Court.

(ii) An application claiming juvenility could be made either before the Court or the JJ Board.

(iia) When the issue of juvenility arises before a Court, it would be under sub-section (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.

(iib) If an application is filed before the Court claiming juvenility, the provision of sub-section (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.

(iic) When an application claiming juvenility is made under 5 Cr. R. No.71/2021 section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of 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 concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015).

(iii) 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 Rule 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 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.

(iv) 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.

(v) 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 concerned criminal court. 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 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.

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(vi) 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 on appreciation of evidence adduced by the parties in each case.

(vii) This Court has observed that a hyper-technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.

(viii) 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.

(ix) That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

(x) Any document which is in consonance with public documents, such as 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 Indian Evidence Act viz., Section 35 and other provisions.

(xi) 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.''

8. As mentioned above, when an application claiming juvenility is made before the Juvenile Justice Board, then the procedure contemplated under Section 94 of the Act of 2015 would apply. Under the said provision, the Board shall undertake the process of age determination by seeking the evidence and the age recorded by the Juvenile Justice Board to be the age of 7 Cr. R. No.71/2021 the person so brought before it shall for the purpose of the Act of 2015, be deemed to be true age of the person.

9. The degree of proof required in a proceeding before the Juvenile Justice Board is higher than when an inquiry was made by a Court before which the case regarding the commission of the offence is pending (vide Section 9 of the Act of 2015). 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 Act of 2015, a declaration is made on the basis of evidence.

10. In the instant case, the application dated 21.08.2020 was moved before the Trial Court. Therefore, the learned Trial Court was required to make only an inquiry about the juvenility of the applicant. Sub section (2) of Section 9 ordains that 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, 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. The manner in which the inquiry for determination of the age of such person shall be conducted has been given in sub-section (2) of Section 94 which reads as follows:

94 (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board;

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

11. The applicant in support of his juvenility, produced the school scholar register entry of Government Primary School, Kandariya, Tehsil and District Dhar, wherein at S.R. No.1382, the date of birth of the applicant was written as 03.05.2003. Learned Trial Court while conducting the inquiry examined Primary Teacher of Government Primary School, Kandariya, Tehsil and District Dhar Suresh Chandra Malviya (CW-1), applicant's father (PW-2), mother (PW-3) and Radiologist Dr. Anil Bhargav (PW-4), who conducted applicant's ossification test.

12. Suresh Chandra Malviya (CW-1) deposed that in his school scholar register entry (Exhibit-A/2), the date of birth of the applicant is written as 03.05.2003, according to which on the date of the incident, the applicant's age comes about 17 years. The authenticity or genuineness of the aforesaid school scholar register entry (Exhibit-A/2) has been questioned by the State and learned Trial Court finding ambiguity in the evidence produced in this regard, got applicant's ossification test conducted, wherein his radiological age was found as about 20 years.

13. Admittedly, the relevant entry about the date of birth of the applicant in the aforesaid school scholar register was made in the year 2008 when there was no cloud over the date of birth of the applicant. Suresh Chandra Malviya (CW-1) appears to be an independent witness, who has proved the school scholar register entry (Exhibit-A/2) and nothing material has come in his cross-examination on the basis of which the school scholar register entry, 9 Cr. R. No.71/2021 produced by him, can be disbelieved or doubted. The applicant's father (PW-

2) and mother (PW-3) both fairly conceded that they have no knowledge about the fact on what basis, the applicant's date of birth was written in the school scholar register entry but the applicant's father (PW-2) specifically deposed that people of Aaganwadi got the applicant admitted in the school. Suresh Chandra Malviya (CW-1) deposed that his date of birth was written on the basis of the birth certificate issued by the concerned Panchayat.

14. On the basis of the documents produced on record, the presumption of juvenility may be applied in the matter, as rightly held in the case of Indra Singh vs. State of M. P., 2017 (1) MPWN 105. Although the said presumption is not conclusive proof of the applicant's juvenility and the same may be rebutted but nothing has been produced on record which negates the case of the applicant. The reliance upon the entry of the Aadhar card (Exhibit-A/3) and ossification test report (Exhibit-A/6), in preference to the school record, was erroneous as in view of the express provision of sub- section (2) of Section 94 of the Act of 2015, the Court ought to have looked no further.

15. The Hon'ble Supreme Court has cautioned the Courts in the case of Akhilesh Yadav vs. Vishwanath Chaturvedi, 2013 (2) SCC 1, that a roving inquiry doubting the date of birth given in the school record, is not to be conducted. If the school records are maintained in ordinary course of business, the Court or Juvenile Justice Board is not expected to conduct a detailed probe to go behind the certificates issued on the basis of such records to examine their correctness. As observed by the Hon'ble Supreme Court in the case of Rishipal Singh Solanki (supra), a hyper-technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile and if two views are possible on the same evidence, the Court should lean in favour of holding 10 Cr. R. No.71/2021 the accused to be a juvenile in borderline cases.

16. In view of the aforesaid discussion and also in the absence of any rebuttal evidence, in the considered opinion of this Court, the applicant has discharged his initial burden about his juvenility as there was no reasonable ground to doubt the said documents produced by him. Learned Trial Court has committed an error in rejecting the application filed by the applicant in this regard. Consequently, present revision is allowed. The impugned order dated 24.09.2020 is hereby set aside, and prima-facie it is held that the applicant had not attained the age of 18 years on the date of the incident; as such, he is a child in conflict with the law. Therefore, the Trial Court is directed to proceed further in the matter, accordingly.

(SATYENDRA KUMAR SINGH) JUDGE gp GEETA Digitally signed by GEETA PRAMOD DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=1dc3d93a178bbacd0e9485f9f6e99335499bddb3250 1850a4984b5b63f6d7a38, PRAMOD pseudonym=12F09B7BC77D4D3D96B764E8FA34B6FE3874D4 34, serialNumber=41554F8E701AEEB833278B4FDD900CBED72CC F299EA61E33BBE6175289BA0390, cn=GEETA PRAMOD Date: 2022.08.23 15:18:51 +05'30'

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