Allahabad High Court
Buddhu vs State Of U.P. & Anr. on 7 December, 2021
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 11 Case :- CRIMINAL REVISION DEFECTIVE No. - 393 of 2021 Revisionist :- Buddhu Opposite Party :- State Of U.P. & Anr. Counsel for Revisionist :- Sanjay Kumar Counsel for Opposite Party :- G.A.,Nand Lal Pandey,Rajneesh Singh,Ujjwal Pandey,Vivek Tiwari Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. Heard learned counsel for the revisionist and learned A.G.A. for the State.
2. This Revision has been filed by the revisionist under Section 401 Cr.P.C. against the order dated 05.12.2020 passed by the learned Chief Judicial Magistrate Bahraich in Case Crime no.715 of 2020 under Sections 363 and 366 I.P.C., Police Station Nanpara, District Bahraich.
3. It has been submitted by learned counsel for the revisionist that the revisionist's daughter was kidnapped by the opposite party no.2 on 16.11.2020 when she was aged about 14 years. The revisionist lodged an F.I.R. on 16.11.2020. During investigation, the Investigating Officer produced the minor daughter of the revisionist before the Chief Judicial Magistrate Bahraich. The Revisionist gave an application before the Chief Judicial Magistrate Bahraich for custody of daughter because he was the lawful guardian of her daughter. The date of birth of the daughter was 08.03.2006 as per record of the School. Learned Chief Judicial Magistrate in determining the age of the daughter of the revisionist summoned the Head Master of Primary School who in his statement before the learned trial court corroborated that as per the school record, the date of birth of the daughter/ victim was 08.03.2006. Despite such statement made by the Head Master and availability of the certificate issued from the School, the Chief Judicial Magistrate Bahraich passed the order dated 05.12.2020. Such order is against the correct position on law as in the new Juvenile Justice Act, 2015, Section 94 clearly provides the parameters to determine the age of a child in need of care and protection.
4. It has been argued that learned trial court has cited judgements for coming to the conclusion that the daughter of the revisionist was major which are not applicable as such judgements were rendered before the Juvenile Justice Act, 2015. Under the new Act, the Date of Birth certificate from the School or the Matriculation or equivalent certificate from the concerned Examination Board and in absence thereof, the birth certificate issued by Municipal Authorities would be the determining factor and in absence of such certificate being available, the age has to be determined by ossification test or any other advanced medical test.
5. Learned counsel for the revisionist has also placed reliance upon a Division Bench judgement rendered by this Court in Habeas Corpus Writ Petition No.390 of 2021: Vandana @ Bandana Saini and Another Vs. State of U.P. and five others, decided on 30.06.2021, wherein the petitioner no.1 through her alleged husband petitioner no.2, had filed the Habeas Corpus petition saying that she had been wrongly sent to the custody of Superintendent of Government Women's Asylum Khuldabad, District Prayagraj by an order dated 25.12.2020 passed by the Judge, Child Welfare Committee, Fatehpur. The medical report had stated the age of the detenue to be as 19 years and thus it was claimed that she was major and that she had married the petitioner no.2 in a Temple in Gujarat and was living with him before she was sent to the Government Women's Asylum against her wishes. It was alleged that School Leaving Certificate had wrongly showed her Date of Birth as 02.04.2004. The court had come to the conclusion that the School Leaving Certificate of the detenue showed her Date of Birth as 02.04.2004 and under Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 as amended, the first preference has to be given to an educational certificate in such matters. Juvenile has been defined as Section 2(5) of the Act as meaning a child below 18 years. Under Section 37 of the Act, the Child Welfare Committee on being satisfied through enquiry that child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child's wishes in case the child is sufficiently mature, pass orders as provided in clauses (a) to (h) of Sub-Section (1) of Section 37 of the Juvenile Justice Act. The Court considered several judgements of the Supreme Court viz. Jarnail Singh Vs. State of Haryana; 2013 (7) SCC 263, Mahadeo Vs. State of Maharashtra; 2013 (14) SCC 637, and State of Madhya Pradesh Vs. Anoop Singh; 2015 (7) SCC 773, as also the judgment rendered by Hon'ble Supreme Court in the case of Independent Thought Vs. Union of India; 2017 (10) SCC 800, to observe that once the detenue has been found to be a child as definded under Section 2(12) of the Juvenile Justice Act, as per the Date of Birth in Educational Certificate which is 02.04.2004, she would fall in the category of child in need of care and protection, and hence the order passed by the Child Welfare Committee placing a minor child in the Government Women's Asylum, Khuldabad, Prayagraj, cannot said to be illegal. The prayer for issuance of Habeas Corpus was rejected.
6. This Court has considered the submissions made by learned counsel for the revisionist and gone through the order dated 03.12.2020 where learned Chief Judicial Magistrate after referring to the Educational Certificate showing her date of birth as 08.03.2006, referring to the opinion of the Chief Medical Officer Bahraich that she was around 19 years of age and to the victim's statement herself saying that she was of 20 years of age; had directed the Principal of the Primary School in which the victim had studied to appear and give his evidence. After such evidence was given, the matter was placed before the learned C.J.M. again on 05.12.2020 where he referred to the application moved by the father i.e. the Revisionist herein praying for release of the girl child to him as she was a minor. Learned Additional Chief Judicial Magistrate referred to the statements having been taken of the victim under Section 161 and 164 Cr.P.C. as well as medical examination having been done on an application being made by one Kailash has said in the order impugned that on her own statement as well as on the medical certificate and on the basis of Adhar Card of the victim, she was major and she should be left on her own to decide for herself as to where she wanted to live. Learned Additional Chief Judicial Magistrate referred to the F.I.R. and also the statement made by the victim that she was living with the accused out of her own sweet will. Referring to the judgments rendered by Supreme Court in Civil Appeal no. 4532 of 2018: Subhani and others Vs. State of U.P. and others, S.L. P. No.8881 of 2018: Jitendra Arora and others Vs. Sukriti Arora and others, 2 JIC 193 (SC) and orders passed by Supreme Court again in Criminal Appeal No.1395 of 2005: Rajjak Ahmad Vs. State of Himachal Pradesh; decided on 23.08.2018, without mentioning the facts of such judgements and how they were applicable, the learned Additional Chief Judicial Magistrate observed that the victim was present in Court and looking to her physical and mental health she prima facie appearred to be major as also from her statement under Section 161 and 164 Cr.P.C. She had given very mature views regarding her liking for the accused and looking to her medico legal certificates and Aadhar card showing her Date of Birth, the court was of the opinion that on the date of passing of the order, the victim was prima facie major. As such she was entitled to live with whoever she wishes and should be left alone.
7. The application filed by the father for custody of the victim was rejected by the learned Chief Judicial Magistrate Bahraich in the order impugned.
8. In Jarnail Singh versus State of Haryana 2013 (7) SCC 263 Supreme Court was considering the argument of the accused appellant that the prosecutrix had eloped with one of the accused voluntarily and had sexual intercourse consensually. The learned trial court and the High Court had found the prosecutrix to be a minor and therefore held the consent of a minor as inconsequential. In paragraph 22 of the judgement the Supreme Court observed -
"on the issue of determination of age of a minor, one 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 aforesaid 2007 Rules have been framed under section 68 (1) of the Juvenile Justice (Care and Protection of Children) Act 2000. Rule 12 referred to here in above provides-
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 maybe, 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 30 days from the date of making the application for that purpose.
(2) the Court or the Board or as the case maybe, the Committee, shall decide the juvenility or otherwise of the juvenile or the child or as the case maybe, 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 enquiry 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 certificate, if available, and in the absence thereof,
(ii) the date of birth certificate from the School (other than a Playschool )first attended; and in the absence thereof ;
(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 the child, in case exact assessment of which cannot be done. The court or the Board or as the case maybe 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 the lower side within the margin of one year;
And, while passing orders in such cases shall, after taking into consideration such evidence as may be available,or the medical opinion, as the case maybe, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),(ii),or (iii) or in the absence where of, clause (b) shall be the conclusive proof of the age as regards the 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 the offence, on the basis of any of the conclusive proofs specified in sub- rule (3); the Court or the Board as the case maybe, 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 the Rules and a copy of the order shall be given to such juvenile or the person concerned.
(5)save and except where, further enquiry or otherwise is required, inter-alia in terms of section 7 -A , section 64 of the Act and the Rules, no further enquiry 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 of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule (3) of the Act, requiring dispensation of the sentence under the Act for passing appropriate orders in the interest of juvenile in conflict with the law."
The Supreme Court further observed in paragraph 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 of a child who is a victim of crime. For, in our view there is hardly any difference in so far as issue of minority is concerned, between a child in conflict with law, and a child who is victim of crime. Therefore in our considered opinion it would be just and appropriate to apply rule 12 of the 2007 rRules, to determine the age of the prosecutrix - - -. The manner of determining age conclusively has been expressed 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 postulated in Rule 12 (3) and option is expressed in a preceeding 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 this Section Rule 12 (3) matriculation or equivalent certificate of the child concerned 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) can be referred to and we suggest 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 parent 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 birth certificate issued by the 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 child concerned, on the basis of medical opinion.
The Supreme Court thereafter referred to the fact that the prosecutrix Had studied only up to class 3 and thereafter had left school and had started to do household work. The prosecution in the facts and circumstances of the case had endeavoured to establish age of the prosecutrix on the next available basis in the sequence of options expressed in rule 12 (3) of the 2007 Rules. The prosecution produced headmaster of the Government High School where the prosecutrix had studied up to class III. The headmaster had proved the certificate as having been made on the basis of school records indicating that the prosecutrix was born on 15 May 1977.
The Supreme Court further observed in paragraph 24 thus:- "in the scheme contemplated under rule 12 (3)of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are therefore of the view that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix - - -. It would also be relevant to mention that under the scheme of Rule 12 it would have been improper for the High Court to rely on any other material including the Ossification test, for determining the age of the prosecutrix - - - ". The deposition of the headmaster had not been contested therefore the date of the birth of the prosecutrix as given in the certificate issued from the School assumes finality. Accordingly it was clear that the prosecutrix was less than 15 years of age on the date of the occurrence in March 1993. The prosecutrix being a minor on the date of the occurrence, the conclusion as recorded by the High Court and by the trial court was unexceptional. The contention raised by the appellant accused that she had accompanied him of her own sweet will and had consensual sex with him would be clearly inconsequential as she was a minor.
9. In Mahadev versus State of Maharashtra and another 2013(14) SCC 637, the Supreme Court was considering the case of the appellant who was accused of kidnapping and rape of a minor girl. The Supreme Court referred to Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules 2007, and held it to be applicable to determine the age of the young prosecutrix/victim. The Appellant had been proceeded against for offences punishable under Sections 363, 376 and 506 IPC, and was punished having been found guilty by the Trial Court. The High Court by its judgement though confirmed the conviction of sentence for the offences under section 363 and 376 IPC, set aside the sentence for offence under Section 506 IPC. The prosecutrix was aged about 15 years at the time the offence was committed, she was studying in ninth standard, her father was a police head constable. The prosecutrix had a flair for music and used to participate in singing bhajans. The appellant who was a musician and a singer developed acquaintance with the prosecutrix due to her participation in Bhajan programmes along with him and he allured her by stating that if she goes along with him to Hyderabad to prepare audio cassettes of a bhajans and songs she can make a lot of money. On 18.09.2005 the prosecutrix eloped with the appellant and after going to Hyderabad and from there to a relative's house at Kurnool, the appellant is alleged to have committed forcible sexual intercourse by confining her in the said place for a month and twenty days. During the said period the appellant is stated to have committed it in the said offence repeatedly. In support of the case the prosecution produced the headmistress of the School where the prosecutrix was admitted in fifth standard to prove the School Leaving Certificate which disclosed her date of birth as 20.05.1990, the appellant attempted to find fault with the said conclusion by making reference to evidence of the doctor who had examined the prosecutrix and who in her evidence stated that on her examination she could state that the age of the prosecutrix could have been between 17 to 25 years. The Ossification test was not done, and the age was ascertained only on the basis of opinion of the doctor. The Supreme Court on hearing the appeal referred to the Juvenile Justice (Care and Protection of Children) Rules 2007, in paragraph 12 and subsection (3) thereof and it observed that under Rule 12 (3)b it is specifically provided that only in the absence of alternative methods described under Rules A (i)(ii)(iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of age of a juvenile, the same yardstick can be rightly followed by the Courts for the purpose of ascertaining the age of a victim as well. The Supreme Court observed that there were certificates issued by the school in which the prosecutrix studied upto fifth standard and in the School Leaving Certificate issued by such school the date of birth had been clearly mentioned as 20.05.1990, and this document was also approved by the headmistress. Apart from that, the Transfer Certificate and the admission form maintained by the Primary School Latur, where the prosecutrix had her initial education also confirmed the date of birth as 20.05.1990. The Supreme Court observed that the reliance placed upon the said evidence by the Courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of occurrence was perfectly justified and dismissed the Appeal.
10. In State of Madhya Pradesh versus Anoop Singh 2015 (7) SCC 773, the Supreme Court observed that ossification test is not the sole criteria for determining the date of birth, once birth certificate and middle school certificate are available. Difference of two days in the date of birth mentioned in both certificates was a minor discrepancy and was immaterial. Reliance placed by the High Court upon the ossification test, because of such difference, for presuming that the prosecutrix was more than 18 years of age at the time of the incident and was a consenting party and thus no offence against the accused is proved, was erroneous. The two certificates issued by the educational institutions proved the age of the prosecutrix to be below 16 years on the date of the incident, proving her to be underage for consent. The conviction of the accused by the trial court was restored. The Supreme Court observed in paragraph 12: "the case involves only one issue for the court to consider which was regarding the determination of the age of the prosecutrix." The court referred to Mahadev versus State of Maharashtra, and quoted several paragraphs there from. The Supreme Court observed that the High Court should have relied firstly on the documents as stipulated under Rule 12 (3)(b) and only in their absence, the medical opinion should have been sought. The trial court had also dealt with this aspect of the ossification test but had noted that the ossification test is not the sole criteria for determination of the date of birth of the prosecutrix as certificate of birth by municipal corporation had been enclosed which had not been disproved.
11. The learned trial court has placed reliance upon judgement rendered in Suhani versus state of U.P., Civil Appeal No.4532 of 2018 reported in 2018 SCC Online (Supreme Court) 781. In the said case the Supreme Court was considering the question of age of the petitioner. The father of the petitioner had lodged an F.I.R. under section 363 and 366 of the Indian Penal Code. It was contended before the High Court that the petitioner was about 19 years of age and that her statement was recorded under section 164 Cr.P.C. where she had stated that she had entered into wedlock with the petitioner number two. On behalf of the contesting respondent number three, a certificate issued by the Secondary School Examination showed the date of the birth of the petitioner as 25.09.2003. The High Court came to the conclusion that she was thirteen years and eight months old and on that basis treated her as a minor. However, she expressed an unequivocal desire not to accompany her parents. The High Court therefore directed that she should be allowed to reside in Nari Niketan, Allahabad. The Supreme Court on hearing the matter had directed that the petitioner number one should be examined by the concerned department of All India Institute of Medical Sciences, New Delhi. The radiological examination and final report /opinion Submitted showed x-rays of clavicle, sternum, pelvis, spine, wrist and elbow, shoulder and it was observed that all epiphysis at elbow, shoulder and wrist joints were fused, suggesting age of 16.5 years fusion of iliac crest epiphysis suggested her age to be 19+ -1 years, the medial end of the clavicle was not fused suggestive of age of 22 to 27 years. S1 vertebrae of sacrum was not fused with S2, suggestive of the age of 17 to 24 years. The final opinion of All India Institute of Medical Sciences as quoted by the Supreme Court in its order stated that the findings of physical, dental and radiological examination found the bone age of the petitioner number 1 to be between 19 to 24 years. The Court thereafter observed that on the basis of radiological examination the petitioner number one was a major and therefore the High Court had erred in directing her to stay in Nari Niketan, Allahabad. The petitioner number one admitted the factum of marriage with the petitioner number two who was the husband and therefore she was allowed to accompany him. The Supreme Court observed that she was an adult and she had gone voluntarily with the petitioner number two and had entered into wedlock therefore the proceedings initiated under Sections 363 and 366 of the Indian Penal Code against the petitioner number two stood quashed. It however clarified that the order Quashing the proceedings was passed to do complete justice.
12. The learned Trial court has also relied upon Jitendra Arora and others versus Sukriti Arora and others 2017 (3) SCC 726, which was a case relating to custody of a child/minor, under the Guardians and Wards Act. In the said case marriage between the appellant and the respondent was solemnised in India in 1999. The parties shifted to U.K. and lived there for some time. Two daughters are born to them. Later on relationship between them soured and a divorce petition was filed by the respondent in the Court in U.K. where she was granted a divorce decree. Thereafter the appellant shifted to India along with The elder daughter. The respondent had in the meantime obtained a British citizenship for the elder daughter and came to India and filed a Habeas Corpus petition in Punjab and Haryana High Court against the appellant and others which was allowed by the High Court directing the appellant to hand over the minor daughter to the custody of the respondent. Against the said judgement of the High Court, the father had filed the appeal before the Supreme Court. During the hearing of the case the Supreme Court had asked the respondent as to whether she could shift to India even temporarily for a year or so, so that the court could consider giving custody of the daughter to her for that period. However she expressed her inability to do so and had insisted that the daughter should come to U.K. and live with her. The Court had interacted with the daughter in the chambers earlier and on the date of hearing also she was present in Court and in front of parents had unequivocally expressed that she was happy with the father and wanted to continue in his company and did not want to go with her mother. The Supreme Court observed that the child was 15 years of age and quite mature and she could fully understand what was in her best interest and therefore competent to take a decision for herself. There had been interactions with her by different Benches of the Supreme Court from time to time from which it was clearly discernible that she was in a position to weigh the pros and cons of the two alternatives and to decide as to which course of action is most suited to her. She had a developed personality and formed her opinion after considering all the attendant circumstances. The Court observed that her intellectual capacities had been adequately developed and she was able to solve problems and think about her future and understand the long-term effects of the decision which she was taking. She had been brought up in a conducive atmosphere and had achieved sufficient level of maturity. Further, in spite of giving ample chances to the respondent by giving temporary custody of the girl child to her, the respondent had not been able to win over her confidence. She had wanted the girl child to live with her in U.K. whereas the daughter had very categorically stated that she did not want to go to U.K. and wanted to live with her father. The court therefore observed that it could not take the risk of sending the child to a foreign country against her wishes which may prove to be a turbulent and tormenting experience for her which would not be in her interest therefore it decided that her welfare lay in the continued company of her father.
It is clear from the facts of the case as narrated here in above that the learned trial court had misplaced reliance upon the judgement which had nothing at all to do with section 363 and 366IPC. Quoting a judgement out of context and placing reliance thereupon is a hazardous course of action which should be avoided by the learned Trial Court.
13. The learned Trial Court has placed reliance also upon Razak Mohd versus State of Himachal Pradesh, 2018 (9) SCC 248, the accused was convicted by the High Court under Sections 363, 366 and 376 of the I.P.C. He had been acquitted by the learned trial court. The High Court in appeal had reversed the order. The Supreme Court observed that the evidence of the prosecutrix with regard to the incident of abduction and commission of rape stood contradicted by her previous statement in writing recorded under Section 161 of the Code of Criminal Procedure with which she was confronted with during trial. Apart from the above, it was evident from the evidence of other prosecution witnesses that the prosecutrix had remained with the appellant accused in the village for about 12 days until she was recovered, and that she had freely moved around with the appellant accused in the course of which movement, she had come across many people at different points of time. Yet, she did not complain of any criminal act on the part of the appellant accused. The Supreme Court observed that the focal point for decision would be the age of the prosecutrix in order to determine as to whether she was a major so as to give her consent. The court thereafter considered the evidence and material on record. The age of the prosecutrix had been sought to be proved by the prosecution by bringing on record School Admission form, and certificate issued by one teacher of a Government School. The teacher P.W.5, in her deposition had stated that the details mentioned by her in the school admission form had been obtained from the School Leaving Certificate issued by the government primary school. The certificate issued by the Government Primary School on the basis of which details in the admission form had been filled up by P.W.5 has not been exhibited by the prosecution. The court observed that such a document which is only a consequential certificate issued on the basis of entries mentioned on the basis of an exhibit which was not proved could not be relied upon. Moreover in the opinion of the radiologist the prosecutrix was between 17 to 18 years. The Supreme Court observed that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way had to be allowed, yet in the totality of facts stated by it, read with the report of the radiological examination of the prosecutrix left the Court in doubt. The benefit of the doubt would go naturally in favour of the accused. The possibility of the prosecutrix being a consenting party could not be altogether ruled out. Therefore the order of the High Court convicting the Appellant accused was set aside by the Supreme Court.
14. This Court has considered the new Act of 2015 passed by the Legislature to obviate the confusion that was prevailing in the Society at large with regard to the factors that needed to be looked into for determining the age of the child. The Act of 2000 did not have any Section to determine the age of a child in need of care and protection or a juvenile in conflict with law. The Rules of 2007 did have such a provision under Rule 12 but not in the parent act of 2000. Section 94 was added with a specific purpose to do away with such confusion and to clarify the statutory provisions. It has referred to factors that needed to be looked into in sub section (2) which is being quoted hereinbelow in its entirety:-
"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 the child as nearly as may be and proceed with the 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"
15. There is only one judgement considering Section 94 of the 2015 Act reported till date. In the case of Sanjeev Kumar Gupta Vs. State of U.P., 2019 (12) SCC 370; a Division bench of the Supreme Court was considering an appeal by the complainant against the High court's order declaring the Second respondent as juvenile at the time of the incident.
16. The claim of juvenility of the accused on the basis of matriculation certificate was allowed. The complainant had approached the Supreme Court mentioning that in the first school that was attended by the appellant his date of birth was mentioned as 17.12.1995. The second respondent had also filed an application for obtaining a Driving License and Aadhar Card in which he had declared his date of birth is 17.12.1995. However, in the Matriculation certificate issued by the CBSE his date of birth was mentioned as 17.12.1998. The Supreme court asked the CBSE to produce its records and to file an affidavit indicating the basis on which the date of birth was recorded in the Matriculation certificate. The affidavit filed by the CBSE indicated that the date of birth in the records maintained by the CBSE was recorded purely on the basis of the final list of students forwarded by the Senior Secondary School the Respondent had attended at Shikohabad. The headmistress of the school had admitted before the Juvenile Justice Board Firozabad that date of birth of the student at the time of admission is noted as per information given by the parents and at the same time an affidavit is obtained, but in the said case no affidavit was obtained from the father. The father of the second respondent did not produce any record at the time of admission in respect of date of birth of the student. The Second Respondent had attended Senior Secondary School from the fifth standard till Matriculation. He had earlier attended another school till fourth standard and the School Register and Transfer Certificate from that School specifically contained an entry in regard to the date of birth of the Second Respondent as 17.12.1995.
The Supreme Court observed that the High Court had clearly erred in setting aside the well considered order passed by the Juvenile Justice Board and that of the Sessions Judge in Appeal. The Sessions Judge had relied upon observations made by the Supreme Court in Parag Bhati versus State of U.P. 2016 (12) SCC 744 and Ramdev Chauhan versus State of Assam 2001 (5) SCC 714 where the Supreme Court had observed that where there are two conflicting school documents produced, the credibility and authenticity of such such documents depend upon the circumstances of the case and a further enquiry would be required. The court considered that Section 7 -A of the 2000 Act and Rule 12 of the rules of 2007 had been interpreted by the Supreme Court in Ashwini Kumar Saxena versus State of M.P. 2012 (9) SCC 750 and observed that Ashwini Kumar Saxena was decided by two judges bench whereas subsequently three judges bench of the Supreme Court had dealt with the matter in Abu Zar Hossain versus State of Bengal 2012 (10) SCC 489. Both the Judgements were considered by a subsequent bench in Parag Bhati (supra).
In Ashwini Kumar Saxena (supra), the Court held that where it was found on enquiry that educational certificates were fabricated or manipulated, the Court could discard the date of birth as reflected therein. It was observed in paragraph 34 thus :
"34 - - 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 the Court, the juvenile Justice Board or Committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go beyond behind the certificates to examine the correctness of those documents maintained during 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. - - "
Subsequently, a three-judge bench in Abu Zar Hussain (supra) observed that "the documents referred to in Rule 12(a) (i),(ii),(iii) of the 2007 Rules shall definitely be sufficient for the prima facie satisfaction of the Court about the age of the delinquent - - the statement recorded under section 313 of the Code is too tentative and will not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the School Leaving Certificate or the voters list etc obtained after conviction would depend on the facts and circumstances of each case and no hard and fast rule can be prescribed and they must be prima facie accept or reject. In Akbar Sheikh Versus State of Bengal 2009 (7) SCC 415; and Pawan Versus State of Uttaranchal 2009(15) SCC 259, these documents were not found prima facie credible while producing the documents viz , School Leaving Certificate, marksheet and the medical report were treated sufficient for directing an enquiry and verification of the appellants age. If such documents prima facie inspire confidence of the Court, the Court may act upon such documents for the purpose of Section 7-A and order an enquiry for determination of the age of the delinquent. "Directing an enquiry is not the same thing as declaring the accused to be a juvenile. In the former the Court simply records the prima facie conclusion while in the latter a declaration is made on the basis of evidence." Hence the approach at the stage of directing an inquiry has to be more liberal. The Supreme Court observed in Sanjiv Gupta's case that the 2015 Act came into force on 15 January 2016. Section 111 repealed the earlier 2000 Act but stipulated that despite the repeal, anything done or any action taken under the said act shall be deemed to have been done or taken under the corresponding provisions of the new legislation. In the new Act Section 94 contains provisions in regard to the determination of age. It was observed by the Court that section 94(2)1 indicates a significant change over the provisions which were contained in Rule 12 (3)a of the 2007 Rules made under the 2000 Act. Under Rule 12 (3) even though matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended could be obtained. In section 94 (2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate were placed in the same category. It is evident that the Supreme Court in the case of Sanjeev Kumar Gupta after referring to judgements rendered earlier by it under the 2000 Act, 2007 Rules referred to the 2015 Act and Section 94 thereof to observe that under Section 7A, if the accused claims juvenility, the court shall consider the documents like educational certificates and certificate issued by a municipal authorities as prima facie sufficient to order an inquiry. In ordering such enquiry the court should be liberal. However once evidence is to be considered in such enquiry, to give a declaration of juvenility, the Court should be careful and look into the attendant circumstances of the case, including the date of application for obtaining such education certificates, the age of the siblings, and other relevant considerations for giving a declaration Of juvenility.
17. The aforesaid provision in the Act of 2015 would show that first preference or the first determining factor that should be looked into is the educational certificate of the child.
18. In this case, the educational certificate showed the date of birth of the victim as 08.03.2006 and therefore at the time of filing of the F.I.R. and at the time of moving of the application by the revisionist she was not 18 years of age, and not major. The Chief Judicial Magistrate exceeded his jurisdiction and misapplied the law settled by Hon'ble Supreme Court without correctly appreciating the new Act, and has passed the order impugned.
19. The order dated 05.12.2020 passed by the Chief Judicial Magistrate is set aside. The matter is remanded to the Chief Judicial Magistrate to pass a fresh order after due consideration of the law settled by Hon'ble Supreme Court and the statutory provisions as notified by the Act of 2015. Let a fresh order be passed on the application moved by the revisionist within four weeks from the date of production of certified copy of this order.
20. The Revision stands disposed of.
Order Date :- 7.12.2021 Rahul [Justice Sangeeta Chandra]