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Madhya Pradesh High Court

Ram Khatik vs The State Of Madhya Pradesh on 1 July, 2022

Author: Vishal Mishra

Bench: Vishal Mishra

                                                                        1
                                                 IN THE HIGH COURT OF MADHYA PRADESH
                                                              AT JABALPUR
                                                                     BEFORE
                                                       HON'BLE SHRI JUSTICE VISHAL MISHRA
                                                                ON THE 1st OF JULY, 2022

                                                   MISC. CRIMINAL CASE No. 29966 of 2022

                                            Between:-
                                            RAM KHATIK S/O KISHORILAL KHATIK, AGED
                                            ABOUT 19 YEARS, OCCUPATION: STUDENT R/O
                                            WARD NO. 1, KHUSHIPURA BANDA, P.S. BANDA,
                                            DISTRICT- SAGAR (MADHYA PRADESH)

                                                                                                   .....PETITIONER
                                            (BY SHRI ANIL KHARE - SENIOR ADVOCTE WITH SHRI TEEKA
                                            RAM KURMI - ADVOCATE FOR THE APPLICANT )

                                            AND

                                            1. THE STATE OF MADHYA PRADESH THROUGH
                                            P.S. BANDA DISTRICT- SAGAR, M.P. (MADHYA
                                            PRADESH)
                                            2. VICTIM A

                                                                                                .....RESPONDENTS
                                            (STATE BY MS. PRIYANKA JAIN - PANEL LAWYER )

                                          This application coming on for admission this day, the court passed the
                                    following:
                                                                         ORDER

This is the fifty repeat bail application under Section 439 of Cr.P.C on the behalf of the applicant for grant of bail. His earlier bail application were dismissed on merits vide orders dated 27.09.2019, 17.12.2019 & 16.10.2020 passed in M.Cr.C.Nos.35638/2019, 50843/2019 and 26962/2020. His fourth application being M.Cr.C.No.30555/2021 was allowed and the applicant was directed to be released for a period of 45 days directing learned trial Court to Signature Not Verified SAN reconsider the factum of juvenility of the applicant.

The applicant has been arrested on 10.08.2019 by Police Station-Banda, 2 District Sagar (M.P.) in connection with Crime No.562/2019 for the offence punishable under Sections 363, 366, 376 & 506-B of Indian Penal Code and under Section 7 & 8 of Protection of Children From Sexual Offence Act, 2012 (hereinafter referred to as "POSCO Act").

It is argued that the prosecution has registered a case against the present applicant under the POSCO Act alleging that the prosecutrix was a minor at the time of commission of offence. The date of birth of the applicant as per Matriculation Certificate is shown to be 28.06.2001. Earlier his date of birth which was recorded as 28.06.2000 in the school records, but subsequently the same was corrected in the Matriculation Certificate which is reflected from the order-sheet dated 09.05.2022 passed in Special Case No.78/2019, whereby, the factum of juvenility of the applicant was directed to be considered.

It is argued that as per the settled legal proposition of law, mark-sheet of class Xth is to be considered as relevant and the primary document for consideration of factum of age in term of the judgments of Hon'ble Supreme Court in the case of Ashwani Kumar and Jurnel Singh 2012, 2014, wherein, the Hon'ble Supreme Court has considered the fact that in case there is a dispute with respect to age of an accused/juvenile, the same has to be considered in accordance with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the Rules of 2007"). Admittedly, the prosecutrix is a minor, therefore, the provisions of POSCO Act have been attracted and the applicant is ten days' small than the prosecutrix in age. He is admittedly a juvenile and, therefore, his case for consideration grant Signature Not Verified of bail should be considered by the Juvenile Court. He is ready to abide by all SAN the terms and conditions that may be imposed by this Court while considering Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2022.07.05 11:04:39 IST his bail application. In view of the aforesaid, he prays for grant of bail.

This Court while dealing with the case of the applicant has granted 45 days bail to enable the trial Court to examine the factum of juvenility under Rule 12 of the Rules of 2007, but learned trial Court has considered the aforesaid aspect of age of the applicant and has found that the age of the applicant in terms of school records is 28.06.2000 and admittedly, he is a major. Therefore, his application was rejected.

Hon'ble Supreme Court in the case of Ashwani Kumar Saxena vs. State of M.P. and others, reported in (2012) 9 SCC 750 has held as under:

"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 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 Signature Not Verified SAN necessary, give the benefit to the child or juvenile by considering Digitally signed by SUSHEEL KUMAR JHARIYA his or her age on lower side within the margin of one year.

33. Once the court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in subsection (5) or Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the Rule 12. Further, Section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination.

34. Age determination inquiry contemplated under the JJ Act and 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 certificates, 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 not be correct. But Court, J.J. Board or a Committee functioning under the J.J. 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 J.J. Board or the Committee need to go for medical report for age determination. "

Hon'ble Supreme Court in the case of Jarnail Singh vs. State of Digitally signed by SUSHEEL KUMAR Haryana, reported in (2013) 7 SCC 263 has held as under:

"22. On the issue of determination of age of a minor, one 5 only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove 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 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 â€"

(a) (i) the matriculation or equivalent certificates, if available;

  SAN                               and in the absence whereof;
Digitally signed by SUSHEEL KUMAR
JHARIYA                               (ii) the date of birth certificate from the school (other than a play
Date: 2022.07.05 11:04:39 IST
                                                              6

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 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 Signature Not Verified SAN and a copy of the order shall be given to such juvenile or the Digitally signed by SUSHEEL KUMAR JHARIYA person concerned.

Date: 2022.07.05 11:04:39 IST 7 (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 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.â€​

23. 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 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 Signature Not Verified SAN available basis, out of a number of options postulated in Rule Digitally signed by SUSHEEL KUMAR 12(3). If, in the scheme of options under Rule 12(3), an option is JHARIYA Date: 2022.07.05 11:04:39 IST 8 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 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."

From a bare perusal of the aforesaid judgments of Hon'ble Supreme Court, it is apparently clear that for determining the age of an accused/juvenile in case there is a dispute, the Matriculation Certificate has to be given prime importance over and above all other documents. In the present case, admittedly, Signature Not Verified SAN the date of birth of the applicant which is recorded in the Matriculation Digitally signed by SUSHEEL KUMAR JHARIYA Certificate is 28.06.2001 and he is admittedly ten days' small than the Date: 2022.07.05 11:04:39 IST 9 prosecutrix. The incident took place on 15.05.2019.

Learned counsel appearing for the State has failed to demonstrate that the age which is reflected in the Matriculation Certificate cannot be considered for determination of age factor.

Considering the over all facts and circumstances of the case, without commenting upon the merits of the case, in absence of any explanation on the part of the respondent/State with respect of the age applicant and looking to the custody period of the present applicant, this Court deem it appropriate to allow this application. Consequently, the application is allowed. The applicant is directed to be released on bail on furnishing surety bond of Rs.50,000/- (Rupees Fifty Thousand Only) with one local surety in the like amount to the satisfaction of trial Court.

In view of the COVID-19, jail authorities are directed to follow the Covid Protocol guidelines before releasing the applicant.

This order will remain operative subject to compliance of the following conditions by the applicant :-

1. The applicant will comply with all the terms and conditions of the bond executed by him;

2. The applicant will cooperate in the investigation/trial, as the case may be;

3. The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Police Officer, Signature Not Verified SAN as the case may be;

4. The applicant shall not involve any other offence, in case the applicant JHARIYA Date: 2022.07.05 11:04:39 IST 10 indulge in any other criminal case the benefit of bail as extended by this Court shall automatically cancelled;

5. The applicant will not seek unnecessary adjournments during the trial;

6. The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be;

7. The applicant will inform the concerned S.H.O. of concerned Police Station about his residential address in the said area and it would be the duty of the Public Prosecutor to send E-copy of this order to SHO of concerned police station as well as Superintendent of Police concerned who shall inform the concerned SHO regarding the same.

Application stands allowed and disposed of.

Certified copy as per rules.

(VISHAL MISHRA) JUDGE sj Signature Not Verified SAN Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2022.07.05 11:04:39 IST