Anand & Anr vs State on 18 November, 2016

[Cites 7, Cited by 0]

Rajasthan High Court - Jodhpur

Anand & Anr vs State on 18 November, 2016

1. The petitioners have preferred separate revision petitions aggrieved by order dated 15.01.2016, vide which the learned Sessions Judge, Churu decided Appeal No.138/2015 filed by the complainant and Appeal No.143/2015 filed by the State and set aside the order dated 30.11.2015 passed by the Juvenile Justice Board, Churu.

2. It is contended by counsel for the petitioners that as per the matriculation certificate, the date of birth of petitioner-Anand is 10.01.1998 and the date of birth of petitioner-Shanker Lal is 30.10.1996, and the date of offence being 18.09.2013, the petitioners were juvenile on the date of the incident. The Juvenile Justice Board therefore, did not commit any illegality in passing the impugned (3 of 18) [CRLR-159/2016] order dated 30.11.2015 declaring the petitioners as juvenile.

3. It is also contended by counsel for the petitioners that the matter earlier travelled upto the High Court and the High Court while allowing the revision petition filed by the petitioners directed the Juvenile Justice Board to consider the additional evidence including school documents and related documents and after affording opportunity to both the parties, to pass appropriate orders.

4. It is contended by counsel for the petitioners that the petitioners moved an application before the Juvenile Justice Board seeking permission to examine their parents, but that application was rejected. The Juvenile Justice Board declared the petitioners as major vide order dated 28.05.2014. The said order was challenged by the petitioners and the appellate court vide order dated 03.01.2015 remanded the matter back to the Juvenile Justice Board. The Juvenile Justice Board again vide order dated 09.02.2015 declared the petitioners as major. An appeal was preferred by the petitioners and the matter was remanded back to the Juvenile Justice Board vide order dated 14.08.2015. Thereafter, the (4 of 18) [CRLR-159/2016] Juvenile Justice Board vide order dated 30.11.2015 declared the petitioners as juvenile. Aggrieved by which, the State as well as the complainant preferred separate appeals and vide the impugned order, the appeals filed by the State and the complainant were allowed and the petitioners were declared as major.

5. It is also contended by counsel for the petitioners that the primary document for determination of age, as per Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as 'the Rules') is the Certificate of the Board of Secondary Education, in absence of which only, date of birth certificate from the school (other than a play school) first attended can be considered and in the absence whereof, the birth certificate given by a corporation or a municipal authority or a panchayat can be considered. The contention of the learned counsel is that when the Certificate of the Board of Secondary Education was available, then the court below was not entitled to look into other documents. Reliance in this regard has been placed on Ashwani Kumar Saxena Vs. State of Madhya Pradesh, (2013) 1 SCC (Cri.) 594 and Parag Bhati Vs. State of U.P., 2016 Cr.L.R. (SC) (5 of 18) [CRLR-159/2016]

492.

6. Counsel for the State as well as counsel for the complainant have opposed the revision petitions. Their contention is that the appellate court has based its order considering the judgment passed by a coordinate Bench of this Court dated 21.04.2014. It is also contended that all the grounds raised by counsel for the petitioners were raised before the High Court in the earlier revision petition. The remand order was specific. There has been a manipulation in the date of birth, as figure '95' has been manipulated to '98'. The petitioners were major at the time of the incident, and therefore, the appellate court has not committed any error in determination of the age.

7. It is also contended that where the foundation of a document is disputed, then such document cannot be considered. The Certificate of Board of Secondary Education was issued on the basis of a transfer certificate, which was manipulated, and therefore, the court was right in considering the other documents. Reliance in this regard has been placed on Jodhbir Singh Vs. State of Punjab, 2013(1) RLW

573. (6 of 18) [CRLR-159/2016]

8. It is also contended that after the judgment of coordinate Bench of this Court dated 21.04.2014, both the parties did not lead evidence, and therefore, the petitioners cannot now raise this issue. It is further contended that the judgment of the appellate court is based on the documents on record. The appellate court has not committed any illegality in setting aside the order of the Juvenile Justice Board and declaring the petitioners as major.

9. I have considered rival contentions of the parties.

10. The present case has a chequered history. The incident took place on 18.09.2013. The Juvenile Justice Board initially declared the petitioners as major on 21.10.2013. The appeal preferred by the petitioners was dismissed on 09.01.2014. In the revision filed against the dismissal order, the coordinate Bench of this Court vide order dated 21.04.2014 remanded the case back to the Juvenile Justice Board with certain directions The Juvenile Justice Board thereafter on 28.05.2014, declared the petitioners as major. In appeal, the matter was remanded back to the Juvenile Justice Board vide order dated 03.01.2015. Thereafter, the Juvenile (7 of 18) [CRLR-159/2016] Justice Board again declared the petitioners as major on 09.02.2015. In appeal preferred by the petitioners vide order dated 14.08.2015, the matter was again remanded back to the Juvenile Justice Board, and ultimately vide order dated 30.11.2015, the Juvenile Justice Board declared the petitioners as juvenile.

11. Aggrieved by the aforesaid order dated 30.11.2015, the State as well as the complainant preferred separate appeals and vide the impugned order dated 15.01.2016, the petitioners have been declared as major.

12. It would be relevant to first quote the relevant provisions of the Act and the Rules.

13. Section 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act') reads as under:-

"49. Presumption and determination of age.-(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding (8 of 18) [CRLR-159/2016] whether the person is a juvenile or the child or not, stating his age as nearly as may be.

(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of prson so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person."

14. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as 'the Rules') 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 of 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 (9 of 18) [CRLR-159/2016] 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 (10 of 18) [CRLR-159/2016] 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 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 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 of the Board after examining and obtaining the certificate or any other documentary proof referred 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 (11 of 18) [CRLR-159/2016] 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."

15. Sub-rule (3) of Rule 12 of the Rules provides for holding of an inquiry by the court or the Board by seeking evidence by obtaining the matriculation or equivalent certificate, if available and in absence, the date of birth certificate from the school (other than a play school) first attended, and in absence whereof, the birth certificate given by a corporation or a municipal authority or a panchayat. The documents referred to in sub-rule (3) of Rule 12 of the Rules have been considered to be conclusive proof in sub-rule (4) of Rule 12 of the Rules.

16. In Ashwani Kumar Saxena Vs. State of Madhya Pradesh (supra), the Hon'ble Apex Court, in paras 32 and 34, observed as under:-

"32. "Age determination inquiry"

contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any (12 of 18) [CRLR-159/2016] matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necesary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.

34. Age determination inquiry contemplated under the JJ Act and the 2007 Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificats, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may (13 of 18) [CRLR-159/2016] not be correct. But court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates 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."

The Apex Court observed that the court is not required to make a roving enquiry and go behind the certificates produced by the juvenile.

17. In Parag Bhati Vs. State of U.P.(supra), the Hon'ble Apex Court has held that the matriculation certificate is to be treated as conclusive proof.

18. The genuinity of the certificate issued by the Board of Secondary Education is not disputed. The only dispute is that the year of birth mentioned in the certificate is wrong because it is based on a fabricated transfer certificate and for which an FIR was lodged and charge-sheet has been filed against Surendra Kumar for fabricating the transfer certificate.

(14 of 18) [CRLR-159/2016]

19. It is relevant to note that the Certificate of the Board of Secondary Education of Anand Kumar Pareek was issued on 06.06.2013, wherein his date of birth was mentioned as 10.01.1998. The Certificate of the Board of Seconday Education of Shanker Lal Pareek was issued on 25.06.2010, wherein his date of birth was mentioned as 30.10.1996. These documents were therefore issued prior to the incident dated 18.09.2013.

20. The documents mentioned in sub-rule (3) of Rule 12 of the Rules has been considered as conclusive proof in sub-rule (4) of Rule 12 of the Rules. The judgment of the Apex Court in Parag Bhati Vs. State of U.P. (supra) is also to this effect.

21. The point therefore is that when a Certificate of the Board of Secondary Education is available, can the court proceed to go to the documents as contemplated in sub-clause (ii) of clause (a) of sub-rule (3) of Rule 12. Since Rule 12 specifically provides that if a matriculation or equivalent certificate is available, then it has to be given precedence and in absence only, the certificate of the school first attended (other than a play school) can be seen. Even assuming that there was a (15 of 18) [CRLR-159/2016] manipulation in the transfer certificate, I do not find it a justification to ignore the matriculation certificate, because at the relevant time when matriculation certificate was issued, the present offence was not committed and the genuinity of matriculation certificate is not disputed.

22. Rule 12 of the Rules does not contemplate looking beyond the matriculation certificate and the circumstances in which the age was mentioned. The court could only look into a matriculation certificate when there is allegation of the certificate itself is forged. Here there is no allegation of the certificate being forged. The only allegation is that the date mentioned is recorded on the basis of transfer certificate wherein the date was manipulated.

23. The Juvenile Justice Board while passing the order dated 30.11.2015 considered the order of the appellate court dated 14.08.2015, wherein in the remand order itself, it was mentioned that the Juvenile Justice Board has to consider only the matriculation certificate. The Juvenile Justice Board therefore, in conformity with the order passed by the appellate court dated 14.08.2015, declared the petitioners to be juvenile on the date of the incident. In the impugned (16 of 18) [CRLR-159/2016] order, the learned Sessions Judge, Churu, while allowing the appeal, has considered the factum of the transfer certificate being manipulated and has, on that basis, come to the conclusion that the petitioners are major.

24. It is true that there was direction by a coordinate Bench of this Court, while remitting the matter to consider the school documents and other relevant documents. To my mind, in view of the judgment pronounced in Parag Bhati Vs. State of U.P. (supra), matriculation certificate is to be treated as conclusive proof. The petitioners were thus juvenile and the appellate court erred in considering the documents, which led to the issuance of the matriculation certificate. In Ashwani Kumar Saxena Vs. State of Madhya Pradesh (supra), the Hon'ble Apex Court has clearly observed that a roving inquiry cannot be done and Section 49 of the Act only contemplates holding of an inquiry and taking such evidence as may be necessary.

25. Jodhbir Singh Vs. State of Punjab (supra) relied upon by counsel for the complainant was a case wherein the genuineness of the school leaving certificate was given prime importance for (17 of 18) [CRLR-159/2016] ascertaining the date of birth of the juvenile. The Court in that case held that there was no question of placing reliance on any other certificate. The present ruling in no way aids the complainant. The date of birth mentioned in the school certificate was given preference over any other document since the Certificate of the Board of Secondary Education was not available.

26. In the present case, the Certificate of the Board of Secondary Education being available, the same is to be given precedence over any other document. The ruling cited by counsel for the complainant therefore, does not apply to the facts of the present case.

27. Sub-rule (3) of Rule 12 gives precedence to matriculation certificate over all other documents, including birth certificate of the school first attended (other than a play school), the birth certificate given by a corporation or a municipal authority or a panchayat. There was thus no justification in going beyond the matriculation certificate and considering the record of the school first attended. The matriculation certificate having been considered as conclusive proof in sub-rule (4) of Rule 12 of the (18 of 18) [CRLR-159/2016] Rules, the impugned order cannot be sustained and deserves to be set aside.

28. Consequently, both the revision petitions are allowed. The impugned order dated 15.01.2016 passed by the appellate court in Appeal No.138/2015 filed by the complainant and Appeal No.143/2015 filed by the State is set aside and the order of the Juvenile Justice Board dated 30.11.2015 declaring the petitioners as juvenile is upheld. Copy of the order alongwith record of the Juvenile Justice Board be sent back to the Juvenile Justice Board forthwith.

(PANKAJ BHANDARI)J. Skant/-

Unlock Advanced Research with PRISMAI

Rajasthan High Court - Jodhpur