Rajasthan High Court - Jaipur
Dholi Devi vs State Of Rajasthan And Anr on 23 January, 2018
Author: Sabina
Bench: Sabina
(1 of 5)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. CRIMINAL REVISION PETITION NO. 1414/2016
Dholi Devi W/o Shri Narendra Kumar @ Narsiram, R/o Gujaro
Ki Dhani, Tan Village Morija, Tehsil Chomu, District Jaipur, at
present R/o Village Lakher, Tehsil Amer, District Jaipur.
----Petitioner
Versus
1. State of Rajasthan through P.P.
2. Narendra Kumar @ Narsiram Gurjar S/o Shri Madan Lal
Gurjar, R/o Gujaro Ki Dhani, Tan Village Morija, Tehsil Chomu,
District Jaipur.
----Respondents
__________________________________________
For Petitioner : Mr. S.R. Chaudhary
For Respondents : Ms. Sonia Shandilya, P.P.
For Complainant : Mr. Shovit Jhajharia
__________________________________________
HON'BLE MRS. JUSTICE SABINA
Order
23/01/2018
Petitioner has filed this revision petition under Section
397/401 of The Code of Criminal Procedure, 1973 (hereinafter
referred to as 'Cr.P.C.') challenging the orders dated 29.9.2015
and 8.7.2016.
Learned counsel for the petitioner has submitted that this
court vide order dated 31.08.2015, had upheld the order
passed by the Family Court whereby, respondent no.2 was
held to be a major. Initially, date of birth of respondent no.2
had been given in the school record as 17.04.1995. However,
at a later stage, when the respondent no.2 appeared for
eighth class examination, his date of birth was changed in the
record to 17.04.1997. No reliance could be placed on the entry
(2 of 5 )
with regard to the date of birth of the respondent no.2 in class
eighth and class tenth examination certificates. In support of
his arguments, learned counsel has placed reliance on the
judgment of the Hon'ble Supreme Court in 2014(4) RLW
3024 (SC) in case of Kulai Ibrahim @ Ibrahim Vs. State
Rep. By the Inspector of Police B-1, Bazaar Police
Station, Coimbatore, wherein, it was held as under:-
"Though in this paragraph, this Court observed that
the question of obtaining medical opinion from a duly
constituted Medical Board arises only if the above-
mentioned documents are unavailable, this Court
went on to further observe that only in those cases,
where documents mentioned in Section 12(a) (i) to
(iii) of the J.J. Act, 2000 are found to be fabricated
or manipulated, the court, the Juvenile Justice Board
or the Committee need to go for medical report for
age determination. Thus in cases where documents
mentioned in Section 12(a)(i) to (iii) of the J.J. Act,
2000 are unavailable or where they are found to be
fabricated or manipulated, it is necessary to obtain
medical report for age determination of the accused.
In this case the documents are available but they
are, according to the police, fabricated or
manipulated and therefore as per the above
observations of this Court if the fabrication is
confirmed, it is necessary to go for medical report for
age determination of the appellant. Delay cannot act
as an impediment in seeking medical report as
Section 7-A of the J.J. Act, 2000 gives right to an
accused to raise the question of juvenility at any
point of time even after disposal of the case. This
has been confirmed in Ashwani Kumar. Moreover, J.J.
Act, 2000 is a beneficient legislation. If two views
are possible scales must tilt in favour of the view
that supports the claim of juvenility. While we
acknowledge this position in law there is a
disquieting feature of this case which cannot be
ignored. We have already alluded to the counter
affidavit of Shri R. Srinivasalu, Inspector of Police. If
what is stated in that affidavit is true then the
appellant and his father are guilty of fraud of great
magnitude. A case is registered against the
appellant's father at the Ukkadam Police Station
under Section 467, 471and 420 of the IPC. Law will
take its own course and the guilty will be adequately
punished if the case is proved against them. Since
the case is being investigated, we do not want to
express any opinion on this aspect. Till the
allegations are finally adjudicated upon and proved,
we cannot take registration of the offence against
the appellant."
(3 of 5 )
Learned counsel for respondent no.2 has submitted that
as per Rule 12 of the Juvenile Justice (Care and Protection of
Children) Rules 2007 (hereinafter referred to as 'Rules'), age
of the juvenile is to be determined on the basis of his
matriculation or equivalent certificate.
In the present case, admittedly as per the matriculation
examination certificate the date of birth of the respondent
no.2 is 17.04.1997. There is no material on record that the
said certificate is a fraudulent document. Petitioner has lodged
FIR against respondent no.2 and others under Section 498-A,
406 Indian Penal Code, 1860.
Rule 12 of the rules reads as under:-
"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
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
(4 of 5 )
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 Ihe 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.(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 of 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."
Thus, as per the above rule, the age of the juvenile is to
be firstly determined on the basis of matriculation or
equivalent certificate. In the present case, the tenth class
certificate is available on record and admittedly as per the said
certificate, date of birth of respondent no.2 is 17.04.1997. FIR
in the present case was lodged with regard to the incidents
which had occurred in June 2014. Thus, at that time
respondent no.2 was less than eighteen years of age. At this
stage, there is no material on record to hold that the tenth
class certificate of respondent no.2 is a fabricated document.
(5 of 5 )
In the facts and circumstances of the present case, the
judgment relied upon by the learned counsel for the petitioner
has fails to advance the case of the petitioner.
No ground for interference by this court while exercising revisional jurisdiction is made out.
Dismissed.
Record of the trial court be sent back forthwith.
(SABINA)J. Mohita/114