Delhi District Court
Anwar vs State on 15 February, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS
JUDGE-02(NE), KARKARDOOMA COURTS, DELHI.
CA No. 3/22
PS : Gokal Puri
FIR No. 218/2020
U/s 302/34 IPC
Anwar
S/o Late Sh. Chiraunji Lal
R/o Jhuggi Pipe Line,
Johripur Toll Tax, Loni,
Uttar Pradesh ...Appellant.
Versus
State ...Respondent
Date of assignment : 11.01.2022
Date of Arguments : 07.02.2022
Date of Pronouncement : 15.02.2022
JUDGMENT :
1. Vide this judgment I shall decide a Criminal Appeal filed by the Appellant under Section 101 of Juvenile Justice Act, 2015 against the order dated 18.11.2020 CA No. 3/22 Anwar Vs. State 1/13 passed in a case titled State v. CCL 'Anwar' passed by Ld. J.J.B, Delhi. Appellant has also filed an application for condonation of delay in filing of this appeal.
2. Arguments of both parties heard. Trial Court record perused.
3. Ld. Counsel for Appellant has submitted that Ld. J.J.B. has declared CCL Anwar as major to face trial in main case after conducting an inquiry u/s 94 (2) of J.J. Act, 2015 vide order dated 18.11.2020, but this order is not legal. It is further argued that the Ld. J.J.B got conducted an ossification test of CCL to reach the conclusion that CCL was aged about 19 years or more than 18 years at the time of this offence on 30.05.2020, but his educational documents have not been considered. It is further submitted that Ld. J.J.B was duty bound to collect and consider the school documents of the accused to determine his age and ossification test ought to be considered only if such school documents were not available. It is further submitted that CCL firstly attended a school namely Om Bharti Public School and Ld. J.J.B. should have summoned the record of that school only to determine his age, whereas Ld. J.J.B considered the documents of Sarvjanhit Samaaj Kalyan Samiti (NGO) which was against law. It is further argued that in the absence of actual educational record of Om Bharti Public School, proper age determination of the appellant could not be done and relevant record should be summoned to determine the actual age of appellant. It is further argued that the school documents of the appellant are necessary for the proper adjudication of the case and court should direct IO to collect the educational documents of CCL from Om Bharti Public School and the impugned order is liable to be set aside.
4. Ld. Counsel for the Appellant has further argued that the appellant could not file this appeal within time as he filed a similar application before the court of Sh. Sunil Chaudhary, Ld. Special Judge, NDPS, where the main charge sheet against CA No. 3/22 Anwar Vs. State 2/13 accused has been committed, but said application was dismissed by the court on the ground of availability of an alternative relief of appeal, however time consumed during this process is liable to be condoned. It is further argued that the appellant /CCL also applied for a certified copy of impugned order which was received on 24.12.2021 and time consumed during this process is also liable to be condoned and delay in filing appeal may be condoned.
5. On the other hand, Ld. APP for State has strongly opposed this appeal as well as application for condonation of delay on the ground that the delay in filing appeal was deliberate, intentional and rather amounts to ignorance of law, for which, no delay can be condoned. It is further argued that Section 101 of J.J. Act is clear that the order passed by Ld. J.J.B is appealable, but still appellant filed a miscellaneous application to challenge this impugned order before a wrong court just to mislead the court and this deliberate delay in filing appeal cannot be condoned and application for condonation of delay as well as appeal is liable to be dismissed.
6. Ld. APP for State has further argued that the appellant himself disclosed his last attended school to prove his age and IO collected the documents accordingly, but the last attended school did not qualify the criteria of school due to Ld. Trial Court rightly rejected those documents to determine the age of accused. It is further argued that first attended school of the accused was run by an NGO which was organizing some educational classes for street children and documents of such NGO cannot be considered equal to a recognized school/ board in terms of Section 94 of J.J. Act 2015, due to order of Ld. Trial Court cannot be faulted. It is further argued that in the absence of educational documents of appellant, Ld. Trial Court rightly got conducted the ossification test of CCL to determine his age, as per which, age of the appellants found more than 18 years at the time of incident which is correct. It is further argued that appellant has alleged that CCL studied in Om Bharti Public School, but CA No. 3/22 Anwar Vs. State 3/13 whereabouts of so-called Om Bharti Public School are not clear to collect any document, due to this appeal is liable to be dismissed.
7. I have heard the arguments and perused the record. Accompanied Appeal has been filed with an application for condonation of delay in filing Appeal. Appellant has taken a plea of filing a wrong application before the court of Ld. ASJ and some delay also occurred during obtaining the certified copy of impugned order. Though time consumed in execution of wrong criminal proceedings before the court of wrong jurisdiction is not condonable u/s 14 as this section is applicable in civil cases, yet the period consumed in obtaining certified copies may be condoned u/s 12 of Limitation Act. Perusal of Section 101 of J.J. Act, 2015 would show that a limitation of 30 days has been prescribed for filing of an appeal under JJ Act, but this Appeal has been filed on 11/01/2022 against the order dated 18/11/2020, of which, certified copy allegedly received on 24/12/2020. As such, this appeal has been filed after a period of about 1 year 1 month and 23 days from the date of impugned order, whereas with a delay of about 1 year 1 month and 17 days after obtaining the certified copies. However, limitation for filing of all types of litigations has been exempted by the Hon'ble Supreme Court for the period w.e.f. 15/03/2020 till 28/02/2022 by a case titled Suo Motu Writ Petition (Civil) No.3 of 2020, IN RE: Cognizance for Extension of Limitation. However, in this case, impugned order has been passed during this exempted period and even appeal also being preferred during this period, accordingly there is no delay is filing this appeal. Even otherwise prevailing conditions of Corona have restricted the physical functioning of the courts due to delay in filing of this appeal is liable to be condoned, hence condoned. Application for condonation of delay is hereby allowed.
8. So far as merit of this appeal is concerned, main contention of Ld. Counsel for Appellant is that Ld. J.J.B has ignored the actual school record of the appellant for CA No. 3/22 Anwar Vs. State 4/13 declaring his juvenility and has not summoned the correct record from first attended school. It is further argued that ossification test ought to be the last resort to determine the age of a juvenile, especially when school record of appellant was available, but Ld. Trial Court has relied upon the school record of Sarvjanhit Samaaj Kalyan Samiti (NGO), whereas last attended school of appellant was Om Bharti Public School. It is prayed that the relevant record should be summoned to determine the juvenility of appellant.
9. However, before going into the merit of this Appeal, it is necessary to go through legal provisions under Juvenile Justice Act, 2015 for determination of juvenility of CCL. This issue came before the Hon'ble Supreme Court of India in case titled Rishipal Singh Solanki V. State of Uttar Pradesh and Others 2021 SCC OnLine SC 1079 and the relevant paragraphs are 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 a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such 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 CA No. 3/22 Anwar Vs. State 5/13 the person as nearly as may be.
(iic) When an application claiming juvenility is made under 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 CA No. 3/22 Anwar Vs. State 6/13 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.
(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, in as much 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) CA No. 3/22 Anwar Vs. State 7/13 of the JJ Act, 2015.
50. Section 94 of the JJ Act, 2015 raises a presumption regarding juvenility of the age of the child brought before the JJ board or the Committee. But in case the Board or Committee has reasonable grounds for doubt about the person brought before it is a child or not, it can undertake the process of determination of age by seeking evidence. Thus, in the initial stage a presumption that the child brought before the Committee or the JJ Board is a juvenile has to be drawn by the said authorities. The said presumption has to be drawn on observation of the child. However, the said presumption may not be drawn when the Committee or the Board has reasonable grounds for doubt regarding the person brought before it is a child or not. In such a case, it can undertake the process of age determination by the evidence which can be in the form of:
(i) Date of birth certificate from the school or the matriculation certificate from the concerned board, if available or in the absence thereof;
(ii) The birth certificate given by a corporation or by a municipal authority or a panchayat and in the absence of the above;
(iii) Age has to be determined by an ossification test or any other medical age determination test conducted on the orders of the committee or the board.
51. The age recorded by the Committee or the 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 the true age of the person. The deeming provision in sub-section (3) of section 94 of the JJ Act, 2015 is also significant inasmuch as the controversy or the doubt regarding the age of the child brought before the Committee or the JJ Board is sought to be set at rest at the level of the JJ Board or the Committee itself.
10. In view of the above legal proposition, it is clear that the determination of age of a juvenile is to be conducted under Section 94 of JJ Act, 2015. The documents CA No. 3/22 Anwar Vs. State 8/13 mentioned under Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 under old J.J. Act, 2000 or sub-section (2) of Section 94 of JJ Act, 2015 may be considered for this purpose. As per Rule 12, following documents may be considered for determination of age as under:
(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;
(iv) 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.
(v) 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.
11. Similarly, as per Section 94 (2) of J.J. Act 2015, the following documents may be considered as under:
Section 94 - (1) xxxxxxx
2. (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;
CA No. 3/22 Anwar Vs. State 9/13
(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.
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.
12. By the above said Rule 12 under Juvenile Justice Rules 2007 under old J.J. Act, 2000 and Section 94 of Juvenile Justice Act 2015, it stands clear that juvenility of a child conflict with law has to be determined on the basis of his Matriculation Certificate, or any other Equivalent Certificate, or School Certificate of first attended school of juvenile except Play School, or on the basis of Birth Certificate issued by Corporation or Municipality. If any such Certificate is not available, then Ossification Test may be considered for determination of age. Though there is no definition of school under Rule 12 or Section 94, yet it may be presumed that school must be such institution which has recognized set up for imparting education and duly authorized by some authority and also has specific space and area for this purpose. However, an NGO involved in this process of imparting education for poor children, without any formal registration and recognition, may not be considered as school, especially for the legal purpose being having a temporary status. In fact, authenticity is attached with a record of a recognized school, but such authenticity is not attached with a record of NGO imparting education on temporary basis, due to Ld. Trial Court has rightly not considered this record of Sarvjanhit Samaaj Kalyan Samiti.
13. Now the present appeal has to be dealt with. Perusal of the impugned order would show that IO has filed educational certificate of CCL issued by Sarvjanhit CA No. 3/22 Anwar Vs. State 10/13 Samaaj Kalyan Samiti regarding his age, but the said certificate was not accompanied with any supporting documents like pasting file, admission/withdrawal register or affidavit of guardian to establish its authenticity, due to it was not considered in terms of Section 94 of J.J. Act, 2015. Rather Ld. J.J.B preferred for ossification test of accused to determine his age. Ld. Trial Court has not only considered the ossification test of accused but also examined the members of Medical Board to determine his age and concluded that appellant was not juvenile on the day of incident.
14. Ld. Counsel for appellant has emphasized that school documents ought to be collected from Om Bharti Public School instead of Sarvjanhit Samaaj Kalyan Samiti to determine the age of CCL, but this plea has no substance on many grounds. Paras 3 to 5 of appeal would show that appellant has emphasized that primary education of CCL Anwar was from Om Bharti Public School, but the entire appeal is silent as to where this Om Bharti Public School is situated. Initial address of accused is pertaining to Jhuggis near Om Bharti Public School, Loni, UP, whereas his address on record is pertaining to Ganga Vihar, Delhi-110094. On the other hand, classes of accused being organized by Sarvjanhit Samaaj Kalyan Samiti were in the premises of Om Bharti Public School, Johripur Extension, Delhi. As such, identity of particular Om Bharti Public School where this appellant firstly admitted is not clear.
15. Contrary to it, documents collected by IO have proved that accused had been attending the classes of NGO /Sarvjanhit Samaaj Kalyan Samiti in the premises of Om Bharti Public School, Johripur Extension, Delhi-94. The affidavit of the mother of appellant namely Smt. Premia has corroborated that she accorded her consent for admission with NGO and furnished her undertaking to drop and pick her son / accused from the premises of Om Bharti Public School, Johripur Extension, Delhi-110094. It appears that appellant got confused by the place of classes with admission of this school. As such, accused just attended classes in the premises of Om Bharti Public CA No. 3/22 Anwar Vs. State 11/13 School but those classes were of Sarvjanhit Samaaj Kalyan Samiti only. As such, Ld. Trial Court has rightly rejected the school documents of NGO to determine the age of appellant.
16. Further, it is not disputed proposition of law that findings of J.J.B u/s 94 (2) of J.J. Act 2015, for purpose of determination of age of juvenile under J.J.B Act, are final and there must be some cogent and reliable evidence to set aside such findings. No doubt this presumption of determination of age is rebuttable, but with some strong evidence / documents and not by just by bald allegations that proper procedure has not been followed. Rule 12 under J.J. Act, 2000 and Section 94 of J.J. Act, 2015 have prescribed the documents of first attended school, but in the absence of any such documents, ossification test is the only way to determine the age of CCL, which has been duly adopted by Ld. J.J.B and such procedure cannot be faulted. In view the facts and circumstances of this case, I am of the considered opinion that the order of declaration of juvenility of the appellant / accused Anwar vide impugned order dated 18/11/2020 is not bearing any illegality or infirmity and same is hereby affirmed. Appeal is hereby dismissed.
17. TCR be sent back to Court concerned along-with copy of this Judgment.
18. Copy of this judgment also be sent to both parties through e-mail.
19. Appeal file be consigned to Record Room.
Announced in open court (Devender Kumar)
today on 15.02.2022 Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi.
CA No. 3/22 Anwar Vs. State 12/13
CERTIFICATE:-
It is certified that arguments of the abovesaid appeal have been heard during virtual hearing and judgment has been pronounced during physical hearing in the presence of both parties. Both the parties have been explained the outcome of this appeal in vernacular and proceedings are correct.
(Devender Kumar)
Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi
15.02.2022
CA No. 3/22 Anwar Vs. State 13/13