Madhya Pradesh High Court
Sonu Jadugar Alias Ajhar Khan vs The State Of Madhya Pradesh on 30 June, 2016
CRR-1204-2015
(SONU JADUGAR ALIAS AJHAR KHAN Vs THE STATE OF MADHYA PRADESH)
30-06-2016
HIGH COURT OF MADHYA PRADESH : JABALPUR
SB: HON'BLE SHRI JUSTICE J.P. GUPTA
Criminal Revision No.1204/2015
Sonu Jadugar @ Ajhar Khan
Vs.
State of M.P. And another
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Shri Manish Tiwari, Advocate for the applicant.
Shri Akhilesh Singh, P.L for the respondent no. 1 / State.
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ORDER
(Delivered on day of June, 2016) The applicant has filed this criminal revision under Section 397 / 401 of the Code of Criminal Procedure challenging the legality; propriety and correctness of the order dated 12.5.2015 passed in Session Trial No.4/15 by learned First Additional Sessions Judge, Chhatarpur, whereby application filed under section 7-A of Juvenile Justice (Care and Protection of Children) Act, 2000 by the applicant has been rejected holding that at the time of incident the applicant was not a juvenile.
2. Factual matrix of the case are that against the applicant Session Trial no. 4/15 under section 307/34 of the IPC is pending before the learned First Additional Sessions Judge, Chhatarpur. The allegation against the applicant-accused is that on 13.10.2014 the respondent no.2 / complainant Ramji Soni went with the applicant-accused with another co-accused on motorcycle which was driven by one Julfar who suddenly stopped motorcycle. When the complainant asked why he stopped motorcycle whereupon the applicant-accused fired two gun shots upon the complainant / respondent no. 2 and thereafter, he ran away from the spot. The complainant / respondent no. 2 informed the police about the incident. On the basis of that report, the police registered a criminal case at Crime No.485/2015 against the applicant-accused and another co-accused Julfar. During trial, the applicant-accused had filed an application under Section 7.A of the Juvenile Justice (Care and Protection of Children) Act, 2000 before the learned trial Judge stating that on the date of incident i.e. on 13.10.2014 he was below the age of 18 years as his date of birth is 31.5.1997 but the learned trial Judge after inquiry rejected the application, against which, the present revision petition has been preferred on the ground that the impugned order is contrary to law. Learned trial Judge has failed to appreciate the scope and procedure of the inquiry and has totally ignored the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, therefore, the finding is perverse, illegal and incorrect. Learned counsel for the applicant has contended that the applicant, to prove his date of birth as 31.5.1997, has filed copy of Scholar Register of the school which is Ex.PC(1), where the applicant has first attended other than a play school. This document is also supported by the statement of father of applicant namely Umardaraj Khan (PW-2) and the teacher of the school concerned namely Gourav Kumar (PW-1) but the learned lower court has ignored the aforesaid evidence and held unreliable on the basis of statement of staff nurse of the District Hospital, Chhatarpur namely Smt. Rajni Sharma (PW-3) who has stated that in the record of birth register of the District Hospital, Chhatarpur, dated 31.7.1997 there is no entry about the birth of the applicant as a child of Vahida Begum W/o. Umardaraj while, father of the applicant, Umardaraj (PW-2) has stated in his statement that birth of his son i.e. the present applicant was taken place in the District Hospital, Chhatarpur and the same facts have been mentioned in the birth certificate Ex.PC(2) issued by the Municipality, Chhatarpur. Learned lower court has taken very hyper-technical view and expected from the applicant that he must have proved his case beyond reasonable doubt, in which, he has failed and has recorded the aforesaid finding which is contrary to law and unsustainable. In support of his case, learned counsel for the applicant has placed reliance on the judgments of the Hon'ble Apex Court in the case of Ashwani Kumar Saxena vs. State of M.P., AIR 2013 SC 553 and Abuzar Hossain @ Gulam Hossain vs. State of West Bengal, AIR 2013 SC 1020.
3. Learned Panel Lawyer appearing on behalf of the State opposing the submissions made on behalf of the applicant- accused has argued in support of the impugned order and prayed for rejection of the revision petition.
4. Having considered the submissions made by learned counsel for both the parties and on perusal of the record, it is evident that learned lower court has failed to understand the scope and procedure of the inquiry under section 7 (1) (kha) of the Act, 2000 to determine the claim of the applicant with regard to juvenility.
5. In the case of Ashwani Kumar (supra) the Hon'ble Apex court has categorically examined the scope and procedure of the inquiry required under the Act to adjudicate the claim of the juvenility to achieve the object of the Act. In this regard, it is beneficial to re-produce relevant paragraphs 32, 36 and 37 of the judgment which reads as under :-
32. Consequently, the procedure to be followed under the J.J. Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules. We cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the court exercising powers under section 7A of the Act. Many of the cases, we have come across, it is seen that the Criminal Courts are still having the hangover of the procedure of trial or inquiry under the Code as if they are trying an offence under the Penal laws forgetting the fact that the specific procedure has been laid down in section 7A read with Rule 12.
36. 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.
37. We have come across several cases in which 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.
6. In this regard the Apex Court in the case of Abuzar Hossain @ Gulam Hossain (supra) has also observed here as under :-
âThe Court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in 2000 Act are not defeated by hyper- technical approach and the persons who are entitled to get benefits of 2000 Act get such benefits. The Court should not be unnecessarily influenced by any general impression that in schools the parents / guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima-facie on the touchstone of preponderance of probability.â
7. From the aforesaid case laws it is crystal clear that adjudication of the claim of juvenility to be done strictly as per the procedure prescribed by Rule 12 of the Rule, 2007 which reads here 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 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; 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 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 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, 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 subrule(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.
8. With regard to the aforesaid provision, the Hon'ble Apex court in the case of Ashwani Kumar (Supra) has also made it clear that in which manner procedure prescribed under Rule 12 of the Rules, 2007 is required to be followed. The relevant paras 34 and 35 are reproduced here as under :-
34. âAge determination inquiryâ 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 necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
35. 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.
9. In the aforesaid legal position, legality, propriety and correctness of the findings of the learned lower court are required to be examined. In the instant case, on behalf of the applicant before the learned lower court, two documents were produced to prove his date of birth as 31.5.1997. First document is Ex.PC(1) which is scholar register of Kamla Nehru Highe Secondary School, Chhatarpur, in which, it is mentioned that the applicant was admitted in the school first time on 13.8.2004 in class first and his date of birth is mentioned as 31.5.1997 and this document has been proved by the teacher of the school namely Gourav Kumar (PW-1) and his statement has remained unchallenged. Another document produced by the applicant-accused is birth certificate issued by the Municipality, Chhatarpur under the provisions of Births and Deaths Certificate, 1969 which is Ex.PC(2). This certificate has been issued on 9.2.2015 means after the date of incident, in which, the place of birth is mentioned as District Hospital, Chhatarpur but in the record of District Hospital, Chhatarpur there is no entry regarding the birth of the applicant as stated by Smt. Rajni Sharma, Staff Nurse of the District Hospital on the basis of relevant birth register. On the basis of this statement, learned trial court has came to the conclusion that birth certificate Ex.PC(2) is false and the applicant-accused has failed to prove his date of birth as 31.5.1997.
10. The manner, in which, appreciation has been done by the learned lower court in adjudicating the claim of juvenility is not correct and contrary to law and as mentioned earlier, the Hon'ble Apex court has categorically stated in the case of Abuzar Hossain (supra) that the matter should be considered prima-facie on touchstone of preponderance of probability, it means the fact is not required to be proved beyond reasonable doubt. In this case, learned lower court has ignored this principle and expected from the applicant that he should prove his claim of juvenility beyond reasonable doubt.
11. The learned lower court has also ignored procedure prescribed under Rule 12 of the Rules, 2007, in which, relevant documents are to be considered chronologically. As per Rules,
(i) if there is a case where matriculation or equivalent certificate is available then only it shall be considered in absence of it, (ii) in next order the date of birth from the school (other than a play school) first attended shall be considered, (iii) in absence of the aforesaid document, birth certificate given by a Corporation or a Municipal authority or a Panchayat shall be considered and (iv) in absence of the aforesaid document, medical opinion given by the duly constituted Medical Board shall be considered.
12. In the present case, no document regarding matriculation or Higher Secondary School Certificate is available, therefore, birth certificate other an a play school first attended shall be considered and other documentary evidence in this regard are not required to be considered. The Scholar register Ex.PC(1) is the document which comes in the purview of documents prescribed under Rule 12 (3) a (ii) of the Rules, 2007, which is also proved by the statement of the teacher of the school concerned. Accordingly, in this case, the date of birth shall be considered to be proved as per Scholar Register Ex.PC(1), in which, the date of birth of the applicant is mentioned as 31.5.1997. Consequently, at the time of incident, the applicant was below the age of 18 years and thus, he was juvenile.
13. The evidence of birth certificate which is issued after the incident is not required to be considered in this case. In view of the law laid down in the case of Ashwani Kumar (Supra), on the doubt of correctness of the document i.e. Birth Certificate Ex.PC(2) it cannot be held that the applicant / accused has failed to prove his date of birth as 31.5.1997.
14. In view of the aforesaid discussion, the order passed by the learned lower court is not just and proper and not sustainable in the eyes of law as it cause miscarriage of justice. Hence, the impugned order is set-aside. It is held that the applicant has proved his date of birth as 31.5.1997 and thus, on the date of incident, he was below the age of 18 years. Thus, he was a juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2000. Accordingly, the entire proceedings pending against the applicant in S. T. No.4/15 before the learned First Additional Sessions Judge, Chhatarpur are hereby quashed and the learned lower Court is directed to send the case of the applicant-accused to the Juvenile Justice Board as required under Section 7 (a) of the Juvenile Justice Act.
15. Consequently, this criminal revision is allowed and disposed of accordingly.
A copy of this order be sent to the lower court concerned for information and its compliance.
(J.P. Gupta) Judge /06/2016 JP/-
(J. P. GUPTA) JUDGE