Madhya Pradesh High Court
Sanat Kumar Yadav vs The State Of Madhya Pradesh on 2 January, 2017
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Revision No.3049/2016
Sanat Kumar Yadav
vs.
State of Madhya Pradesh
â¦...............................................................................................
...............
Present:- Hon'ble Shri Justice C.V. Sirpurkar
...................................................................................................
...............
Shri Vivek Shukla, Advocate for the petitioner.
Shri D.K. Paroha, Panel Lawyer for the respondent/State.
...................................................................................................
...............
ORDER
(02-01-2017)
1. This criminal revision is directed against the order dated 04.11.2016 passed by the Court of Special Judge, Sidhi, in Miscellaneous Case No.27/2016, whereby the application filed on behalf of revision petitioner/accused Sanat Kumar Yadav under section 9 read with section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, was dismissed.
2. The facts necessary for disposal of this criminal revision may be summarized as hereunder:
A final report under section 178(2) of the Code of Criminal Procedure was filed against the petitioner/accused for offences punishable under sections 354 and 452 of the Indian Penal Code, section 7/8 of the Protection of Children from Sexual Offences Act, 2012 and sections 3(2-va), 3(1 (b-1)) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, in the Court of Special Judge, Sidhi. The petitioner filed an application under section 9 read with section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to in the order as ''the 2015 Act'') before the trial Court claiming that on the date of the alleged offence, i.e., 21.08.2016, he was a juvenile being 17 years and 9 months old; however, P.S. Bahri District Sidhi has arrested him in aforesaid offences showing him to be 19 years old and has lodged him in District Jail Sidhi. Consequently, the trial Court conducted an inquiry to determine the age of the petitioner. During the course of inquiry, the petitioner placed reliance mainly upon the school record to demonstrate that his date of birth was 05.11.1998. He also examined Dr. Uday Singh, Orthopedic Surgeon, who had conducted radiological examination upon the petitioner and had opined that the age of the petitioner was between 17-18 years. Per contra, the State relied heavily upon the record of the Road Transport Office, Sidhi. Inviting attention of the Court to the fact that a driving licence was issued in favour of the petitioner on 20.05.2014 because he claimed that he had already attained the age of 18 years, it has been contended that on the date of the incident, he was 21 years of age.
3. After the conclusion of the inquiry, the trial Court observed that Satyalal Yadav, the father of the petitioner, had no definite knowledge of the date of birth of the petitioner and date of birth, as recorded in the Scholar Register, was entered on the basis of broad estimation. It was further observed that the Head-Master, who had recorded the date of birth of the petitioner in the Scholar-Register in the year 2004, was not examined by the petitioner. In these circumstances, the date of birth as recorded in the scholar register, the certificate issued by the Head-Master on the basis of such register and the date of birth as recorded in the mark-sheet issued by the school for Class IX and that issued by Board of Secondary Education Madhya Pradesh, Bhopal for Class X, was disregarded. Further, on the basis of the fact that the petitioner is working as a professional driver and a driving licence was issued in his favour on 20.05.2014, it has been held that he could not have been less than 18 years of age on the date of the incident. Thus, on the basis of the date of birth recorded in the driving licence, it was held that the date of birth of the petitioner was 05.11.1995 and on the date of the incident he was 21 years of age.
4. The impugned order has been assailed on behalf of the petitioner contending that the reliance upon the record of Road Transport Office, in preference to the school record, by the trial Court was erroneous in view of section 94(2) of the 2015 Act.
5. Learned Panel Lawyer for the respondent/State on the other hand has supported the impugned order arguing that the driving licence to the petitioner must have been issued at his instance and he must have stated in the application supported by documents that he had attained the age of 18 years; otherwise, the driving licence would not have been issued to him. The petitioner cannot be allowed to blow hot and cold as per his convenience.
6. It has to be noted at the outset that the Act of 2015 came into force on 15th January, 2016; as such, the case would be governed by the provisions of Act of 2015. As per section 2 (13) ''child in conflict with law'' means a child who is alleged or found to have committed an offence and who has not completed 18 years of age on the date of commission of such offence. Sub section (2) of section 9 ordains that in case a person alleged to have committed an offence claims before a Court other than a Board, that the person is a child or was a child on the date of commission of the offence, the said Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be. The manner in which the inquiry for determination of the age of such person shall be conducted, has been given in sub section (2) of section 94 which reads as follows:
94 (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.
7. Thus, it may be noted that section 9 of the Act of 2015 is similar to section 7 and 7-A of the Act of 2000. Likewise, Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 has been adopted with certain modifications as section 94(2) of the 2015 Act.
8. A perusal of impugned order reveals that the trial Court has specifically observed that it is adopting the procedure given in sections 14 and 36 of the 2015 Act for conducting the inquiry for determination of age of the petitioner. The inquiry under section 14 of the 2015 Act is envisaged for determination of the question as to whether or not a juvenile has committed an offence; whereas the inquiry envisaged under section 36 relates to a child in the need of care and protection. The inquiry for the purpose of determination of the age of the person claiming to be a juvenile has to be conducted within the purview of section 9 (2) of the 2015 Act (section 7-A of the 2000 Act) by seeking evidence and by obtaining documents mentioned under section 94 (2) of 2015 Act (Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007). Thus, it appears that the trial Court has misdirected itself by adopting the procedure given under sections 14 and 36 of the 2015 Act for the purpose of determining the age of the petitioner. In the result, the scope of the enquiry has been widened beyond the limits prescribed by section 9 (2).
9. Interpreting section 7-A of the 2000 Act and Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, the Supreme Court has held in the case of Ashwani Kumar Saxena vs. State of M.P. (2012) 9 SCC 750 that:
"25. Section 7-A, obliges the court only to make an inquiry, not an investigation or a trial, an inquiry not under the Code of Criminal Procedure, but under the JJ Act. The criminal courts, Juvenile Justice Board, committees, etc. we have noticed, proceed as if they are conducting a trial, inquiry, enquiry or investigation as per the Code. The statute requires the court or the Board only to make an âinquiryâ and in what manner that inquiry has to be conducted is provided in the JJ Rules. Few of the expressions used in Section 7-A and Rule 12 are of considerable importance and a reference to them is necessary to understand the true scope and content of those provisions. Section 7-A has used the expressions âcourt shall make an inquiryâ, âtake such evidence as may be necessaryâ and âbut not an affidavitâ. The Court or the Board can accept as evidence something more than an affidavit i.e. the Court or the Board can accept documents, certificates, etc. as evidence, need not be oral evidence.
26. Rule 12 which has to be read along with Section 7-A has also used certain expressions which are also to be borne in mind. Rule 12(2) uses the expression âprima facieâ and âon the basis of physical appearanceâ or âdocuments, if availableâ. Rule 12(3) uses the expression âby seeking evidence by obtainingâ. These expressions in our view re- emphasise the fact that what is contemplated in Section 7-A and Rule 12 is only an inquiry. Further, the age determination inquiry has to be completed and age be determined within thirty days from the date of making the application; which is also an indication of the manner in which the inquiry has to be conducted and completed. The word âinquiryâ has not been defined under the JJ Act, but Section 2(y) of the JJ Act says that all words and expressions used and not defined in the JJ Act but defined in the Code of Criminal Procedure, 1973 (2 of 1974), shall have the meanings respectively assigned to them in that Code."
10. Likewise, in the case of Shah Nawaz vs. State of U.P. and another, AIR 2011 SC 3107, it has been held that:
19. Rule 12 of the Rules categorically envisages that the medical opinion from the medical board should be sought only when the matriculation certificate or school certificate or any birth certificate issued by a corporation or by any Panchayat or municipality is not available. We are of the view that though the Board has correctly accepted the entry relating to the date of birth in the mark sheet and school certificate, the Additional Sessions Judge and the High Court committed a grave error in determining the age of the appellant ignoring the date of birth mentioned in those documents which is illegal, erroneous and contrary to the Rules.
11. The Supreme Court in the case of Ashwani Kumar Saxena (supra) has further held that:
âAge determination inquiryâ contemplated under Section 7-A of the Act read with 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 needs to 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 needs to 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 abovementioned 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."
12. In the case of Birad Mal Singhvi vs. Anand Purohit, 1988 Supp. SCC 604 has held that :
"Rule 22 provides for the procedure to be followed in respect of determination of age of a person â It indicates that the opinion of the Medical Board is to be preferred only when a date of birth certificate from the school first attended, is not available or where dispute regarding genuineness of such certificate has arisen and Juvenile Justice Board seeks the opinion of the duly constituted Medical Board for ascertaining the age of an accused for declaring him juvenile."
13. The Supreme Court has thrown light upon the situation wherein the medical opinion has to be given precedence over school record in the case of Om Prakash vs. State of Rajasthan, 2012 AIR SCW 2462. It has been held that :
"Since the age of the accused could not be proved merely on the basis of the school record as the courts below, in spite of its scrutiny could not record a finding of fact that the accused, in fact, was a minor on the date of the incident. Hence, in a situation when the school record itself is not free from ambiguity and conclusively prove the minority of the accused, medical opinion cannot be allowed to be overlooked or treated to be of no consequence. In this context the statement of the medical jurist who conducted the ossification test of the accused and opined before the court that the accused was 19 years of age is of significance since it specifically states that the accused was not a juvenile on the date of commission of the offence. The statement of Dr. C.R. Agarwal, Asstt. Professor in Radiology also cannot be overlooked since he opined that on the basis of x-ray films, the age of the accused is above 18 years and below 20 years. Thus, in a circumstance where the trial court itself could not arrive at a conclusive finding regarding the age of the accused, the opinion of the medical experts based on x-ray and ossification test will have to be given precedence over the shaky evidence based on school records and a plea of circumstantial inference based on a story set up by the father of the accused which prima facie is a cock and bull story."
14. In the case of Akhilesh Yadav vs. Vishwanath Chaturvedi, 2013 (2) SCC 1, the Supreme Court has cautioned that the Courts are not conduct a roving inquiry into the correctness of school certificate or the date of birth certificate. It has been held that :
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, Juvenile Justice Board or a committee functioning under the JJ 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 Juvenile Justice Board or the committee need to go for medical report for age determination.
35. We have come across several cases in which the trial courts have examined a large number of witnesses on either side including the conduct of ossification test and calling for odontology report, even in cases, where matriculation or equivalent certificate, the date of birth certificate from the school last or first attended, the birth certificate given by a corporation or a municipal authority or a panchayat are made available. We have also come across cases where even the courts in the large number of cases express doubts over certificates produced and carry on detailed probe which is totally unwarranted."
15. In the light of afore-stated legal position, reverting back to the facts of the case, it may be noted that the petitioner has filed the date of birth certificate issued by the Head- Master of Middle School Bharuhi, Sihawal, District Sidhi, which was issued on the basis of the entry made at Serial No.549 dated 23.06.2004 on page no.133 of the Scholar- Register, which was kept during the normal course of business. The entry was proved by the incumbent Head- Master of the school deposing in his official capacity. In addition thereto, the petitioner has filed Class IX mark-sheet issued by Government Higher Secondary School, Tarka, District Sidhi. The petitioner has also filed a mark-sheet issued by the Board of Secondary Education Madhya Pradesh, Bhopal, for High School Certificate Examination, 2015. The authenticity or genuineness of these documents have not been questioned by the State. The only argument that has been advanced is that the father of the petitioner had no definite knowledge regarding the date of birth of the petitioner and the entry regarding the date of birth of the petitioner was made on the basis of conjectures and surmises. As such, the date of birth mentioned in school record cannot be relied upon. As already observed, the Supreme Court has cautioned the Courts in the case of Akhilesh Yadav (supra) that a roving inquiry doubting the date of birth given in the school record, is not to be conducted. If the school records are maintained in ordinary course of business, the Court or Juvenile Justice Board is not expected to conduct a detailed probe to go behind the certificates issued on the basis of such records to examine their correctness.
16. In the instant case, the learned trial Judge seems to have done just that. The Court has cast its net wide and has also pressed into service the documents such as driving licence, to discredit the date of birth mentioned in school record. Since, in this case, the relevant entry in the Scholar Register was made in the year 2004, when there was no cloud over the date of birth of the petitioner and the authenticity or genuineness of the school record was not under challenge, in view of express provision of sub-section (2) of section 94 of the 2015 Act, the Court ought to have looked no further. Moreover, the entry in the Road Transport Office relied upon by the State, has not been supported by any application for driving licence made by the petitioner or any documents or affidavit filed before the Transport authorities in support of such application. Therefore, the assumption that no driving licence would have been issued to the petitioner, if he had not completed 18 years of age, was unwarranted. In any case, if the petitioner had given false affidavit or had filed forged certificate in support of his application for obtaining a driving licence, the State is free to take appropriate action in that regard but in the face of the school record, genuineness or authenticity whereof has not been challenged, the driving licence could not have been relied upon to discredit the entry of date of birth in those records.
17. In aforesaid view of the matter, the trial Court erred in holding that the petitioner had attained the age of 18 years on the date of the offence; therefore, the finding is liable to be set aside.
18. On the basis of foregoing discussion, the impugned order is set aside. It is held that the petitioner had not attained the age of 18 years on the date of the offence; as such, he is a child in conflict with the law. The trial Court is directed to proceed further in the matter, accordingly.
(C V SIRPURKAR) JUDGE b