Punjab-Haryana High Court
Vikas vs State Of Haryana on 16 May, 2014
CRR No. 2060 of 2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRR No. 2060 of 2013 (O&M)
Date of decision: 16.05.2014
Vikas ....... Petitioner
Versus
State of Haryana ........ Respondent
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
Present: Mr. Narender Singh, Advocate
for Mr. Naveen Sharma Bhardwaj, Advocate
for the petitioner.
Mr. Anil Kumar, DAG, Haryana.
R.P. NAGRATH, J.
Petitioner is facing trial in FIR No. 67 dated 03.05.2011 for offences under Sections 363, 366 and 376 of Indian Penal Code (IPC). He filed an application before the trial Court for declaring him juvenile in conflict with law. 2 It was stated that date of birth of the petitioner was 02.11.1993 as per the Middle Class Examination Certificate issued by the Board of School Education, Haryana. The version of the prosecution was that the petitioner wrongly mentioned his date of birth as 02.11.1992 in the school record which in fact is 02.11.1993 Jitender kumar 2014.05.19 16:55 I attest to the accuracy and integrity of this document Chandigarh CRR No. 2060 of 2013 (O&M) -2- and reliance was placed upon certified copy of birth certificate mark 'A' issued by Registrar (Births and Deaths). Being certified copy of the record, it was per se admissible. The petitioner led evidence by examining Headmaster of the School as AW-2 where he studied and his father Om Parkash as AW-1. Relying upon the birth record issued by the Registrar (Births and Deaths), learned trial Court rejected his application vide the impugned order.
3. It was vehemently contended by learned petitioner's counsel that learned trial Court has not applied the correct principle of law as per provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'J.J. Act') and the rules framed thereunder.
4. Father of the petitioner as AW-1 stated that the petitioner was born on 02.11.1993 and that his birth was not recorded with Chowkidar of the village. The petitioner was born in village Baliyali, District Bhiwani.
5. In the certified copy mark 'A' names of parents of the child born on 02.11.1992 are entered as Om Parkash father and Kamlesh the mother. Name of the child is, however, mentioned as Avtar whereas the petitioner's name is Vikas. AW-1 categorically stated that he has only one son but denied the suggestion that he recorded the name of his son as Ram Avtar in the birth record. AW-1 admitted that name of his wife is Kamlesh. In the particulars of certificate mark 'A', bearing same parentage as that of the Jitender kumar petitioner the address of village Baliyali is entered. 2014.05.19 16:55 I attest to the accuracy and integrity of this document Chandigarh CRR No. 2060 of 2013 (O&M) -3-
6. AW-2 Surender Kumar, Headmaster of Happy High School, Baliyali brought the register of admission and withdrawal of students pertaining to the year 1999-2000. At serial no. 342 dated 03.04.1999, entry is made of the admission of Vikas son of Om Parkash resident of village Baliyali in the first standard of the said school. The date of birth was recorded as 02.11.1993. Copy of the entry is Ex. A-1.
7. Learned State counsel referred to cross-examination of AW-2 that the record of school does not indicate on what basis the entry of date of birth was made. Therefore, the only controversy would be as to which documentary record is to be preferred for determining the age of the petitioner, whose name is Vikas son of Om Parkash resident of village Baliyali.
8. When this matter was listed on 02.08.2013, the parents of the petitioner were directed to file an affidavit as to whether any other couple of the name of Om Parkash and Kamlesh, is resident of village Baliyali, Tehsil Bawani Khera, Distirct Bhiwani. It was also directed that the affidavit would specifically state to which person the birth certificate mark 'A' relied upon by the prosecution relates and whether the petitioner is the only son of his parents.
9. Joint affidavit of parents of petitioner was placed on record by elaborating the facts. It is stated that village Baliyali is a thickly populated village with population of more than 5000. They tried their best in order to ascertain whether any other couple of the Jitender kumar name Om Parkash and Kamlesh was residing in the village but 2014.05.19 16:55 I attest to the accuracy and integrity of this document Chandigarh CRR No. 2060 of 2013 (O&M) -4- they failed to verify this fact. It was not possible for them to ascertain this fact in relation to the year 1992 for which there is controversy with regard to the birth of a son to the parents of petitioner. Therefore, they were unable to state to whom the certificate mark 'A' relates. It is, however, not disputed that the petitioner is their only son.
10. In view of the aforesaid affidavit, Superintendent of Police, Bhiwani was directed to file an affidavit to clarify the aforesaid fact as to whether there was any other couple of the name Om Parkash and his wife Kamlesh, ever resided in the village in the year 1992-93 other than the parents of petitioner. Superintendent of Police, Bhiwani filed the affidavit dated 05.02.2014 that the matter was enquired through Sub Inspector Tek Ram, Police Station Bawani Khera, District Bhiwani. During the enquiry statements of sarpanch of the village, members of panchayat and other villagers were recorded. It was found that these respectables of the village know almost all the men and women of the village Baliyali and on checking of the voters list during the enquiry no other couple of the name of Om Parkash and his wife Kamlesh was found to have ever resided during the year 1992-93.
11. With the above background, the entire matter has to be considered in the light of provisions of J.J. Act and the rules framed thereunder.
Jitender kumar
12. I have heard learned counsel for the petitioner, the 2014.05.19 16:55 I attest to the accuracy and integrity of this document Chandigarh CRR No. 2060 of 2013 (O&M) -5- State counsel and given my considerable thought to the whole controversy.
13. Procedure to be followed when claim of juvenility is raised before any Court, is provided in Section 7A of J.J. Act, which reads as under:-
"Section 7A - Procedure to be followed when claim of juvenility is raised before any court.
(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement Jitender kumar of this Act.2014.05.19 16:55
I attest to the accuracy and integrity of this document Chandigarh CRR No. 2060 of 2013 (O&M) -6- (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-
section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect."
14. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 which prescribes the procedure to be followed in determining the age, reads as under:-
"Rule 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 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 Jitender kumar or in jail.2014.05.19 16:55
I attest to the accuracy and integrity of this document Chandigarh CRR No. 2060 of 2013 (O&M) -7- (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 Jitender kumar juvenile by considering his/her age on lower 2014.05.19 16:55 I attest to the accuracy and integrity of this document Chandigarh CRR No. 2060 of 2013 (O&M) -8- 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.
(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, Jitender kumar no further inquiry shall be conducted by the court 2014.05.19 16:55 I attest to the accuracy and integrity of this document Chandigarh CRR No. 2060 of 2013 (O&M) -9- 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 off 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."
15. In Ashwani Kumar Saxena vs. State of M.P., 2012 (9) SCC 750, Hon'ble Supreme Court held as under:-
"31. We also remind all Courts/J.J. Board and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate etc. mentioned in Rule 12 (3) (a) (i) to
(iii). The courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection.
32. "Age determination inquiry" contemplated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the Jitender kumar 2014.05.19 16:55 I attest to the accuracy and integrity of this document Chandigarh CRR No. 2060 of 2013 (O&M) -10- matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court need 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 need 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 above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year."
16. In Jarnail Singh vs. State of Haryana, 2013 (7) SCC 263, the question for determining the age of victim in a rape case was under consideration. Hon'ble Supreme Court held as under:-
"Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should Jitender kumar 2014.05.19 16:55 I attest to the accuracy and integrity of this document Chandigarh CRR No. 2060 of 2013 (O&M) -11- be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in Sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth Jitender kumar 2014.05.19 16:55 I attest to the accuracy and integrity of this document Chandigarh CRR No. 2060 of 2013 (O&M) -12- depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."
17. In the instant case, if the primary consideration was to be given to the certificate issued by the office of Registrar (Births and Deaths), the same required further enquiry about the name of petitioner at the time of his birth. If it is found by conducting a roving enquiry that there was no other couple in the name of the parents of petitioner in the village that part of enquiry cannot be given precedent over the Middle Class examination certificate issued by the Board of School Education, Haryana in the light of principle laid down by the Apex Court. There is also no evidence showing that entry of birth of petitioner was got made before Chowkidar of the village.
18. In Rajinder Chandra vs. State of Chhattisgarh and Jitender kumar 2014.05.19 16:55 I attest to the accuracy and integrity of this document Chandigarh CRR No. 2060 of 2013 (O&M) -13- another, (2002) 2 SCC 287, the Apex Court in paragraph 5 of the judgment observed as under:-
"5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das vs. State of Bihar, (2000) 5 SCC 488, this court has, on a review of judicial opinion, held that while dealing with question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this court, squarely applies to the facts of the present case."
19. In view of the above discussion, it is held that the petitioner was about 17 years and 6 months old on the date of occurrence by adopting the aforesaid principle, the petitioner thus has to be proceeded against in terms of J.J. Act. The instant revision is allowed and impugned order dated 16.03.2013 passed by the trial Court is set aside.
Jitender kumar2014.05.19 16:55 I attest to the accuracy and integrity of this document Chandigarh CRR No. 2060 of 2013 (O&M) -14-
20. The trial Court is directed to immediately send record of the case to the Juvenile Justice Board, Bhiwani for proceeding further in accordance with law under the Juvenile Justice (Care and Protection of Children) Act, 2000 and the petitioner-accused be immediately transferred to the concerned Juvenile Home, during pendency of the enquiry.
21. Before parting with this order it may be asserted that facts of the cases in the judgments cited on behalf of the petitioner, pertain to determination of age on the basis of school record in preference to the medical examination of the accused. Therefore, the question where there is direct conflict between the school record and authentic record of Registrar/Municipality is left open to be decided in an appropriate case that may come up for consideration.
May 16, 2014 ( R.P. NAGRATH )
jk JUDGE
Jitender kumar
2014.05.19 16:55
I attest to the accuracy and
integrity of this document
Chandigarh