Rajasthan High Court - Jaipur
Krishna S/O Prem Singh vs State Of Rajasthan on 24 February, 2023
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
[2023/RJJP/003175] (1 of 6) [CRLR-182/2021]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Revision Petition No. 182/2021
Krishna S/o Prem Singh, Aged About 17 Years, R/o Birajpura,
Police Station Mania, District Dholpur (Raj) Through Natural
Guardian And Father Shri Prem Singh S/o Sovaran Singh, Aged
About 54 Years, R/o Birjapura, Police Station Mania, District
Dholpur (Raj) (Presently Confined In District Jail, Dholpur)
----Petitioner
Versus
1. State Of Rajasthan, Through Public Prosecutor
2. Shri Chanchal S/o Suresh Chand, Aged About 40 Years, R/o Sepau, Sepau, District Dholpur (Raj)
----Respondents Connected With S.B. Criminal Revision Petition No. 278/2021 Abhishek Son Of Shri Lokendra Singh, Resident Of Near Bank Of Bardoa, Saipau, District Dholpur) Raj) Minor Through His Natural Guardian Father Shri Lokendra Singh Son Of Shri Suresh Sungh, Resident Of Near Bank Of Baroda, Saipau, District Dholpur (Raj)
----Petitioner Versus
1. State Of Rajasthan, Through P.P.
2. Chandel Son Of Shri Suresh Chand, Aged About 40 Years, Resident Of Saipau, Police Station Soapau, District Dholpur (Raj)
----Respondents For Petitioner(s) : Mr. Abhishek Vashistha for Mr. Rajesh Goswami and Mr. Manoj Kumar Avasthai For Respondent(s) : Mr. Suresh Kumar, PP and Mr. Mohit Mishra (Downloaded on 25/02/2023 at 12:57:54 AM) [2023/RJJP/003175] (2 of 6) [CRLR-182/2021] HON'BLE MR. JUSTICE ASHUTOSH KUMAR Order Date of Reserved :: 01/02/2023 Date of Pronouncement :: 24/02/2023
1. Both these criminal revision petitions have been filed against the order dated 19.01.202021 passed by the learned Special Court POCSO Act, District Dholpur (hereinafter referred to as the 'trial Court'). Therefore, both these criminal revision petitions are being disposed of by this common order.
2. Both these criminal revision petitions have been filed by the petitioners against order dated 19.01.2021 passed by the learned Special Court POCSO Act, District Dholpur in Sessions Case No.5/2020 titled as State of Rajasthan vs. Krishna and Anr. by which learned trial Court has rejected the applications of petitioners: Krishna and Abhishek, by which they had pleaded to be treated as juveniles.
3. The relevant facts, in brief are that an FIR No.250/2019 under Sections 363 and 366A IPC was lodged by the complainant Chanchal S/o Suresh Chand alleging that one Abhishek had kidnapped his minor daughter. Thereafter, investigation was conducted and charge-sheet for the offences punishable under Sections 363, 366A, 376DA read with Section 109 IPC and Sections 5, 6 and 17 of Protection of Children From Sexual Offences Act, 2012 was submitted in the learned trial Court. The petitioners had also been made accused therein.
4. Both the petitioners submitted applications before the learned trial Court and claimed that they be declared and treated (Downloaded on 25/02/2023 at 12:57:54 AM) [2023/RJJP/003175] (3 of 6) [CRLR-182/2021] as juvenile and that their matter be sent to Juvenile Justice Board for trial.
5. Learned trial Court vide its impugned order rejected their applications, hence these petitions.
6. Learned counsel for the petitioners have contended that the learned trial Court has overlooked the mandatory requirement of law, for determination of age of the juvenile, given under Section 94 of the Juvenile Justice Act, 2015 (for short, 'the Act of 2015).
7. Learned counsel for the petitioners have also contended that learned trial Court did not conduct any inquiry as provided under Section 94 of the Act of 2015.
8. It is also submitted that the learned trial Court erred in not considering the date of birth mentioned in the school certificates of the petitioners. Learned counsel for petitioner-Krishna, has also submitted that the date of birth mentioned in the birth certificate of Krishna has also not been considered by the learned trial Court.
9. Learned counsel for the petitioner-Abhishek, has contended that the date of birth mentioned in the certificate issued by Board of Secondary Education, Rajasthan has also not been relied by the learned trial Court.
10. Learned counsel further submitted that the learned trial Court, without conducting proper inquiry and without taking evidence on record has wrongly discarded the birth certificates and the certificates issued by the school and the Board of Education.
11. Learned counsel have also contended that the learned trial Court has erred in relying on Bone Ossification Test alone and has (Downloaded on 25/02/2023 at 12:57:54 AM) [2023/RJJP/003175] (4 of 6) [CRLR-182/2021] erroneously declared the petitioners' age to be above 18 years. Therefore, it has been prayed that the impugned order of learned trial Court be quashed.
12. Learned counsel for the petitioners have placed reliance on the following judgments:
1. Parag Bhati (Juvenile) Through Legal Guardian-
Mother-Rajni Bhati vs. State of Uttar Pradesh and Another:
(2016) 12 Supreme Court Cases.
2. Shweta Gulati & Anr. vs. The State of Govt. of NCT of Delhi: Crl.Rev. P. No.195/2018, dated 08.08.2018.
13. On the other hand, learned Public Prosecutor and learned counsel appearing on behalf of the respondent no.2 have supported the impugned order and prayed for dismissal of the revision petitions.
14. Learned counsel for the respondent has placed reliance upon a judgment of Punjab and Haryana High Court passed in CRR No.767/2018: Gajab Singh vs. State of Haryana, dated 20.02.2019.
15. Heard the learned counsel for the parties and perused the record.
16. Provisions regarding determination of age of the child has been given under Section 94 of the Act of 2015, which reads as under:
"Section 94- Presumption and Determination of age:-
(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the (Downloaded on 25/02/2023 at 12:57:54 AM) [2023/RJJP/003175] (5 of 6) [CRLR-182/2021] inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(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;
(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.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
17. Section 94(2) of the Act of 2015 makes it clear that where there is reasonable ground for doubt regarding the age of the child, it shall be the duty of the Board to undertake the process of age determination by taking evidence in this regard. This clearly indicates that learned trial Court should have undertaken an inquiry with regards to the determination of age and juvenility of the petitioners. Only after such an inquiry, the learned trial Court should have come to a conclusion about their age.
18. A bare perusal of impugned order passed by the learned trial Court, makes it abundantly clear that the learned trial Court had (Downloaded on 25/02/2023 at 12:57:54 AM) [2023/RJJP/003175] (6 of 6) [CRLR-182/2021] directed the Police Authorities to collect the educational documents of the petitioners and get the petitioners medically examined to determine their age and thereafter submit a detailed report before the learned trial Court.
19. Learned trial Court, upon considering the report submitted by the Police Authorities, came to the conclusion that in educational documents of the petitioners, different dates of birth of the petitioners have been entered. Without making any inquiry itself and without giving any opportunity of either party of the case to lead evidence in their support, learned trial Court has passed the impugned order. The trial Court should have made an inquiry itself. Only after giving an opportunity to both the parties to lead evidence in their support, the trial Court should have come to any conclusion regarding the age of the petitioners. Therefore, in the considered opinion of this Court, both the petitions deserve to be allowed.
20. In view of the above discussion, the revision petitions are allowed. The impugned order dated 19.01.2021 passed by the learned trial Court in Sessions Case No.5/2020: State of Rajasthan vs. Krishna and Anr. is quashed and set aside. The learned trial Court is further directed to make an inquiry regarding determination of the age of the petitioners as per the provisions contained under Section 94(2) of the Act of 2015.
21. Stay applications also stand disposed of.
(ASHUTOSH KUMAR),J MADAN/37-38 (Downloaded on 25/02/2023 at 12:57:54 AM) Powered by TCPDF (www.tcpdf.org)