Allahabad High Court
Shane Abbas vs State Of U.P. And Another on 24 March, 2022
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 93 Case :- CRIMINAL REVISION No. - 944 of 2017 Revisionist :- Shane Abbas Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Krishna Dutt Tiwari Counsel for Opposite Party :- G.A.,Firoz Haider,Nazrul Islam Jafri Hon'ble Shamim Ahmed,J.
1. This revision is directed against the judgment and order dated 09.03.2017 passed by Special Judge (POCSO Act) Additional Sessions Judge Court No. 12 Moradabad in Appeal No. 207/2016 (Shane Abbas Vs. Kumar Fiza Zaidi) dismissing the appeal of the present revisionist and confirmed the order dated 20.10.2016 passed by Juvenile Justice Board Moradabad in Case No. 77/2016 arising out of Case Crime No. 237/2016, under Sections 302, 120B I.P.C. Police Station Civil Lines, District Moradabad, by which the opposite party No.2-Kumari Fiza Naseem Zaidi has been declared juvenile.
2. The brief facts of the present case is that on 25.02.2016 opposite party No.2-Kumari Fiza Naseem Zaidi and others have committed brutal murder of the brother of the revisionist, who was practising advocate and returning from kachery (District Court). The opposite party No.2 raised the plea of her juvenility before the Juvenile Justice Board Moradabad and after considering the material evidence the Juvenile Justice Board, Moradabad vide order dated 20.10.2016 allowed the application of the opposite party no.2 and she was declared juvenile. Thereafter, the present revisionist filed an appeal against the order dated 20.10.2016 before the Special Judge (POCSO Act) Additional Sessions Judge Court No. 12 Moradabad bearing Criminal Appeal No. 207/2016 (Shane Abbas Vs. Kumari Fiza Zaidi) raising objection that the date of birth of the opposite party No.2-Kumari Fiza Naseem Zaidi as per the certificate issued by the Municipal Corporation Moradabad is 16.11.1998 and according to the High School Certificate her date of birth is 16.11.1999 and as per Medical report (X-ray report) her age is 19 years, even then learned courts below have not considered the same and passed the impugned order. Several other grounds were taken while assailing the impugned order passed by the court below.
3. I have heard the learned counsel for the parties and perused the record.
4. Before this Court proceeds further to assess the evidence and to consider and decide the case on merits, it shall be appropriate to examine the nature and scope of enquiry as contemplated under the law.
5. Hon'ble Apex Court in the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh and others 2021 0 Supreme (SC) 698 in paras 18,19, 20, 21, 22, 23, 24, 25, 26, 27 has held as under:
"18. The JJ Act, 2015 is a sequel to the Juvenile Justice (Care and Protectiion of Children ) Act 2000 (hereinafter referred to as the ''JJ Act, 2000') which has since been repealed. Under the JJ Act, 2000, an amendment was made by Act 33 of 2006 with effect from 22.8.2006 under which Section 7A of was inserted which reads as under:
"7A. Procedure to be followed when claim of juvenility is raised before any court.-- (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect." of Section 49 of the said Act reads as under:
"49. Presumption and determination of age.-
(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person."
19. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the ''JJ Rules, 2007') prescribed the procedures for determination of age. Rule 12 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 -
(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 Ihe 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 of 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."
20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining : (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. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year. If a juvenile in conflict with law was found to be below 18 years, an order had to be passed declaring the status of the juvenility by the Court. The said procedure was also applicable to dispose off cases where the status of the juvenility had not been determined in accordance with the Act and the Rules made thereunder.
21. On repeal of JJ Act, 2000 and on the enforcement of JJ Act, 2015, the procedure to be followed when a claim of juvenility is raised before any court, other than a Board is stipulated under Section 9 (2) & (3). The same reads as under -
"2) 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, or if the court itself is of the opinion that the person 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:
Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.
(3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect."
There is no corresponding Rule to determine juvenility akin to Rule 12 of the JJ Rules, 2007.
22. On the other hand, under section 94 of the JJ Act, 2015, a presumption is raised that when a person is brought before the JJ Board or the Child Welfare Committee (''Committee' for short) (other than for the purpose of giving evidence) and the said person is a child, the JJ Board or the Committee shall record such observation stating the age of 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. But where the said Board or the Committee has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the JJ Board or the Committee, 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. The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of the Act, be deemed to be the true age of that person. For immediate reference section 94 of JJ Act, 2015 is extracted as under:
"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 of 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 -
a) 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;
b) the birth certificate given by a corporation or a municipal authority or a panchayat;
c) 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.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
23. Under section 7A of JJ Act, 2000 which was inserted by an amendment with effect from 22.08.2006, provision was made to claim juvenility by contending that the accused person was a juvenile on the date of commission of the offence and in such a case, on the evidence taken on record, a finding regarding the age of such person had to be recorded by the court, other than a JJ Board. The claim for juvenility could be raised before any Court and at any stage, even after the final disposal of a case and such claim had to be determined in terms of the said Act and the rules made thereunder. If the Court found a person to be a juvenile on the date of commission of offence under sub-section (1) of section 7A of the JJ Act, 2000, it had to forward the juvenile to the JJ Board for passing appropriate orders and the sentence, if any, passed by a Court would not have any effect. However, under the JJ Act, 2015, a provision corresponding to section 7A of the JJ Act, 2000, is in the form of sub-Section 2 of Section 9 of the said Act, which has been extracted above.
24. Further, unlike section 49 of JJ Act, 2000, section 94 of JJ Act, 2015 provides for presumption and determination of age if the Juvenile Justice Board or the Committee has reasonable grounds to doubt whether the person brought before it is a child or not. It shall undertake the process of determination of age by seeking evidence such as:
(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; and
(iii) 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.
25. The difference in the procedure under the two enactments could be discerned as under:
(i) As per JJ Act, 2015 in the absence of requisite documents as mentioned in Sub-section (2) of Section 94(a) and (b), there is provision for determination of the age by an ossification test or any other medical age related test to be conducted on the orders of the Committee or the JJ Board as per Section 94 of the said Act; whereas, under Rule 12 of the JJ Rules, 2007, in the absence of relevant documents, a medical opinion had to be sought from a duly constituted Medical Board which would declare the age of the juvenile or child.
(ii) With regard to the documents to be provided as evidence, what was provided under Rule 12 of the JJ Rules, 2007 has been provided under sub-section 2 of section 94 of the JJ Act, 2015 as a substantive provision.
(iii) Under Section 49 of the JJ Act, 2000, where it appeared to a competent authority that a person brought before it was a juvenile or a child, then such authority could, after making an inquiry and taking such evidence as was necessary, record a finding as to the juvenility of such person and state the age of such person as nearly as may be. Sub-section (2) of Section 49 stated that no order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order had been made is not a juvenile and the age recorded by the competent authority to be the age of person so brought before it, for the purpose of the Act, be deemed to be the true age of that person.
26. But, under Section 94 of the JJ Act, 2015, which also deals with presumption and determination of age, the Committee or the JJ Board has to record such observation stating the age of the child as nearly as may be and proceed with the inquiry without waiting for further confirmation of the age. It is only when the Committee or the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, it can undertake the process of age determination, by seeking evidence.
27. Sub-section (3) of Section 94 states that the age recorded by the Committee or the JJ Board to be the age of the persons so brought before it shall, for the purpose of the Act, be deemed to be the true age of that person. Thus, there is a finality attached to the determination of the age recorded and it is only in a case where reasonable grounds exist for doubt as to whether the person brought before the Committee or the Board is a child or not, that a process of age determination by seeking evidence has to be undertaken.
6. The Supreme Court of India in Ashwani Kumar Saxena Vs. State of M.P. in Criminal Appeal No. 1403 of 2021 (decided on 13.09.2012), examined the scope of an enquiry expected from a Court, the Juvenile Justice Board and the Committee in the light of earlier judgements and was pleased to observe in para-27 as under:-
"Section 7A, 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 J.J. Act. Criminal Courts, JJ Board, Committees etc., we have noticed, proceed as if they are conducting a trial, inquiry, enquiry or investigation as per the Code. Statute requires the Court or the Board only to make an ''inquiry' and in what manner that inquiry has to be conducted is provided in JJ Rules. Few of the expressions used in Section 7A 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 7A has used the expression "court shall make an inquiry", "take such evidence as may be necessary" and "but not an affidavit". 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."
7. The Hon'ble Supreme Court held that the enquiry on the point of juvenility has nothing to do with the enquiry as contemplated under other legislations and gave an opinion in paras-32, 34 and 36 of the aforesaid judgment of Ashwani Kumar Saxena (supra) as below:
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.
34. "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 necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
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.
8. In Jabar Singh Vs. Dinesh and another - (2010) 3 SCC 757, Hon'ble Apex Court Court considered a situation wherein the entry of date of birth in the admission form of the school records or transfer certificates did not satisfy the condition laid down under Section 35 of the Evidence Act, i.e., the said entry was not in any public or official register and was not made either by a public servant, in the discharge of his official duty or by any person in performance of a duty specially enjoined by the law of the country and therefore the said evidence was not relevant for the purpose of determining the age of the accused in the said case. In the aforesaid case, this Court set aside the order of the High Court in revision and confirmed the order of the trial Court holding that the accused therein was a juvenile at the time of the commission of the alleged offence.
9. Hon'ble Apex Court in the case of Ram Vijay Singh Vs. State of Uttar Pradesh- 2021 CriLJ 2805, has observed as under :
"the ossification test is not the sole criterion of age determination and a blind and mechanical view regarding the age of the person cannot be adopted solely on the basis of medical opinion by radiological examination. Though, radiological examination is a useful guiding factor for determining the age of a person, the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other circumstances. The relevant paragraphs of the said judgment are extracted as under: "14. We find that the procedure prescribed in Rule 12 is not materially different than the provisions of Section 94 of the Act to determine the age of the person There are minor variations as the Rule 12(3)(a)(i) and (ii) have been clubbed together with slight change in the language. Section 94 of the Act does not contain the provisions regarding benefit of margin of age to be given to the child or juvenile as was provided in Rule 12(30(b) of the Rules. The importance of ossification test has not undergone change with the enactment of Section 94 of the Act. The reliability of the ossification test remains vulnerable as was Under Rule 12 of the Rules."
10. Hon'ble Apex Court in the Case of Shah Nawaz Vs. State of U.P. and others reported in AIR 2011SC3107 in paras 7, 8, 9, 10, 11 and 12 has held as under:
"7) In Raju and another Vs. State of Haryana (2010) 3 SCC 235, this Court had admitted "mark sheet" as one of the proof in determining the age of the accused person. In that case, the appellants therein Raju and Mangli along with Anil alias Balli and Sucha Singh were sent up for trial for allegedly having committed an offence punishable under Section 302 read with Section 34 of the IPC. Accused Sucha Singh was found to be a juvenile and his case was separated for separate trial under the Act. Others were convicted under Section 302 read with Section 34 of the IPC and were sentenced to imprisonment for life and to pay a fine of Rs. 5,000/-. Apart from contending on the merits of the prosecution case, insofar as appellant No. 1, Raju, is concerned, the counsel appearing for him submitted that on the date of the incident that is on (31.03.1994), he was a juvenile and as per his mark sheet, wherein his date of birth was recorded as 1977, he was less than 17 years of age on the date of the incident. Learned counsel submitted that having regard to the recent decision of this Court in Hari Ram Vs. State of Rajasthan and another, (2009) 13 SCC 211, appellant No. 1 must be held to have been a minor on the date of the incident and the provisions of the Act would apply in his case. Learned counsel further contended that the appellant No. 1 would have to be dealt with under the provisions of the said Act in keeping with the decision in the aforesaid case. On merits, while accepting the claim of the learned counsel for accused-appellant, this Court altered the conviction and sentence and convicted under Section 304 Part I read with Section 34 IPC instead of Section 302 read with Section 34 IPC. As far as appellant No. 1, namely, Raju was concerned, while accepting the entry relating to date of birth in the mark sheet referred his case to the Board in terms of Section 20 of the Act to be dealt under the provisions of the said Act in keeping with the provision of Section 15 thereof. It is clear from the said decision that this Court has accepted mark sheet as one of the proof for determining the age of an accused person.
8) Similarly, this Court has treated the date of birth in School Leaving Certificate as valid proof in determining the age of an accused person. In Bhoop Ram Vs. State of U.P. (1989) 3 SCC 1, this Court considered whether the appellant therein is entitled lesser imprisonment than imprisonment for life and should have been treated as a "child" within the meaning of Section 2(4) of the U.P. Children Act, 1951 (1 of 1952). The following conclusion in para 7 is relevant which reads as under:-
"7.....The first is that the appellant has produced a school certificate which carries the date 24-6-1960 against the column "date of birth". There is no material before us to hold that the school certificate does not relate to the appellant or that the entries therein are not correct in their particulars.... "
It is clear from the above decision that this Court relied on the entry made in the column "date of birth" in the School Leaving Certificate.
9) In Rajinder Chandra Vs. State of Chhattisgarh and another (2002) 2 SCC 287, this Court once again considered the entry relating to date of birth in the mark sheet and concluded as under:
"5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das v. State of Bihar this Court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court, squarely applies to the facts of the present case.
10) In Arnit Das v. State of Bihar (2000) 5 SCC 488, the Court held that while dealing with a question of determination of the age of an accused, for the purpose of finding out whether he is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he is a juvenile and if two views may be possible on the same evidence, the court should lean in favour of holding the accused to be juvenile in borderline cases.
11) In Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584 with regard to the entries made in School Leaving Certificate, this Court has observed as under:- "17. The school-leaving certificate was said to have been issued in the year 1998. A bare perusal of the said certificate would show that the appellant was said to have been admitted on 1-8-1967 and his name was struck off from the roll of the institution on 6-5-1972. The said school-leaving certificate was not issued in the ordinary course of business of the school. There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Evidence Act. No statement has further been made by the said Headmaster that either of the parents of the appellant who accompanied him to the school at the time of his admission therein made any statement or submitted any proof in regard thereto. The entries made in the school-leaving certificate, evidently had been prepared for the purpose of the case. All the necessary columns were filled up including the character of the appellant. It was not the case of the said Headmaster that before he had made entries in the register, age was verified. If any register in regular course of business was maintained in the school, there was no reason as to why the same had not been produced."
12) In Pradeep Kumar Vs. State of U.P. 1995 Supp (4) SCC 419, this Court considered the commission of offence by persons below 16 years of age. The question before a three- Judge Bench was whether each of the appellants in those appeals was a child within the meaning of Section 2(4) of the U.P. Children Act, 1951 and as such on conviction under Section 302 read with Section 34 IPC should have been sent to an approved school for detention till the age of 18 years. At the time of granting special leave, appellant, by name, Jagdish produced High School Certificate, according to which he was about 15 years of age at the time of occurrence. Appellant - Krishan Kant produced horoscope which showed that he was 13 years of age at the time of occurrence. So far as appellant - Pradeep was concerned, a medical report was called for by this Court which disclosed that his date of birth as 07.01.1959 was acceptable on the basis of various tests conducted by the medical authorities. In the above factual scenario/details, this Court concluded as under:-
"3. It is thus proved to the satisfaction of this Court that on the date of occurrence, the appellants had not completed 16 years of age and as such they should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment on conviction under Section 302/34 of the Act"
After saying so and after finding that the appellants were aged more than 30 years, this Court directed not to send them to an approved school under the U.P. Children Act for detention, while sustaining the conviction of the appellants under all the charges framed against them, quashed the sentences awarded to them and ordered their release forthwith."
11. In case of Parag Bhati (Juvenile through Legal Guardian-Mother-Smt. Rajini Bhati v. State of Uttar Pradesh and another - (2016) 12 SCC 744, Ho'ble Apex Court observed as under:
"34. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled to the special protection under the JJ Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the Courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice.
35. The benefit of the principle of benevolent legislation attached to the JJ Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well-planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law cannot be allowed to come to his rescue. (Emphasis added) From the above decision, it is clear that the purpose of Juvenile Justice Act, 2000 is not to give shelter to the accused of grave and heinous offences.
36. It is settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness of date of birth, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain, an enquiry for determination of the age of the accused is permissible which has been done in the present case."
12. Hon'ble Apex Court in the case of Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal reported in 2012 (10) SCC 489, a three judge Bench considered questions arising under the JJAct and the rules framed thereunder. After a detailed consideration of earlier judgments of the Apex Court on this issue, the larger bench of the apex Court, laid down as under:
39. Now, we summarise the position which is as under:
(i) A claim of juvenility may be raised at any stage even after final disposal of the case. It may be raised for the first time before this Court as well after final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in appeal court.
(ii) For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility.
(iii) As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rule 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may 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 that they must be prima facie accepted or rejected. In Akbar Sheikh and Pawan these documents were not found prima facie credible while in Jitendra Singh the documents viz., school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Seciton 7A and order an enquiry for determination of the age of the delinquent.
(iv) An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of age of the delinquent.
(v) The 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 courts 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.
(vi) Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at threshold whenever raised.
13. I have perused the judgment passed by both the courts below.
14. Section 8 of The Juvenile Justice (Care and Protection of Children) Act, 2015 provides the powers, functions and responsibilities of the Board, which reads as under:-
(1) Notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, the Board constituted for any district shall have the power to deal exclusively with all the proceedings under this Act, relating to children in conflict with law, in the area of jurisdiction of such Board.
(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Children's Court, when the proceedings come before them under section 19 or in appeal, revision or otherwise.
(3) The functions and responsibilities of the Board shall include--
(a) ensuring the informed participation of the child and the parent or guardian, in every step of the process;
(b) ensuring that the child's rights are protected throughout the process of apprehending the child, inquiry, aftercare and rehabilitation;
(c) ensuring availability of legal aid for the child through the legal services institutions;
(d) wherever necessary the Board shall provide an interpreter or translator, having such qualifications, experience, and on payment of such fees as may be prescribed, to the child if he fails to understand the language used in the proceedings;
(e) directing the Probation Officer, or in case a Probation Officer is not available to the Child Welfare Officer or a social worker, to undertake a social investigation into the case and submit a social investigation report within a period of fifteen days from the date of first production before the Board to ascertain the circumstances in which the alleged offence was committed;
(f) adjudicate and dispose of cases of children in conflict with law in accordance with the process of inquiry specified in section 14;
(g) transferring to the Committee, matters concerning the child alleged to be in conflict with law, stated to be in need of care and protection at any stage, thereby recognising that a child in conflict with law can also be a child in need of care simultaneously and there is a need for the Committee and the Board to be both involved;
(h) disposing of the matter and passing a final order that includes an individual care plan for the child's rehabilitation, including follow up by the Probation Officer or the District Child Protection Unit or a member of a non-governmental organisation, as may be required;
(i) conducting inquiry for declaring fit persons regarding care of children in conflict with law;
(j) conducting at least one inspection visit every month of residential facilities for children in conflict with law and recommend action for improvement in quality of services to the District Child Protection Unit and the State Government;
(k) order the police for registration of first information report for offences committed against any child in conflict with law, under this Act or any other law for the time being in force, on a complaint made in this regard;
(l) order the police for registration of first information report for offences committed against any child in need of care and protection, under this Act or any other law for the time being in force, on a written complaint by a Committee in this regard;
(m) conducting regular inspection of jails meant for adults to check if any child is lodged in such jails and take immediate measures for transfer of such a child to the observation home; and
(n) any other function as may be prescribed.
15. Section 9 of The Juvenile Justice (Care and Protection of Children) Act, 2015 provides procedure to be followed by a Magistrate who has not been empowered under this Act, reads as under:
(1) When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction.
(2) 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, or if the court itself is of the opinion that the person 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:
Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.
(3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.
(4) In case a person under this section is required to be kept in protective custody, while the person's claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety.
16. Section 18 of the Act, 2015 provides that if it is found that any child below the age of 16 years has committed a heinous offence, then, notwithstanding anything contrary contained in any other law for the time being in force, may pass orders like allowing child to go home after advice or admonition or to direct the child to participate in group counselling or perform community service or may be released on probation of good conduct or he may be sent to special home for such period not exceeding three years etc. Perusal of provisions of the Act, 2015 establish that in no case the child below sixteen years of age having committed an heinous offence can be detained as convict in regular jails. The punishment as provided under the above provisions is basically of reformative nature. The general principles of care and protection of children as given in Chapter 2 of J. J. Act also include a principle of repatriation and restoration of every child with his family at the earliest.
17. Section 94 of the Act, 2015 provides presumption and determination of age of juvenile and such presumption is not conclusive to prove the case and is rebutable on the evidence lead by the aggrieved parties. Section 94 of the Act, 2015 is reproduced herein below:
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 of 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.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
18. In the M.R. Register of K.C.M. School, Civil Lines, Moradabad, in which the opposite party No.2 has studied from Class VII to XI, the name of the opposite party No.2 was registered at serial No. 16352 and it has also been proved by the statement of the Principal of the said institution and on the M.R. Register of K.G.Methodist School Civil Lines, Moradabad in which the opposite party No.2 studied from Class 2 to 3 her name was registered as Serial No. 537 and the Manager of the said institution stated on oath this fact. Further, Principal G.K.Vailhm College Moradabad, in which the opposite party No.2 had studied in Class Nursery, has also stated on oath that on the M.R. Register her name was registered at Serial No. 521 and thus it is beyond doubt that from K.G. to XI the date of birth of the opposite party No.2 was registered as 16.11.1999 and this Court is satisfied that all the entry relating to date of birth entered is one of the valid proofs of evidence for determination of age and it has also been proved by the statement of the Principal of the said institutions, therefore, undoubtedly opposite party No.2 was juvenile aged about 16 years 03 months and 09 days on the date of incident and there is no dispute as per the school record.
It is settled position in law that if the matriculation or equivalent certificates are available and there is no other material evidence to create doubt on the date of birth mentioned in the matriculation or equivalent certificate or genuineness of the certificate, then the date of birth mentioned in the matriculation certificate shall be treated as date of birth of the accused/juvenile. However, if there is any doubt, further enquiry shall be made and the Board/Court shall be justified to determine the age of the accused/juvenile claiming juvenility, on the basis of medical opinion from a duly constituted medical board. In view of the provision of Section 94 (2) of the Act, 2015 while making enquiry for determining the age of an accused/juvenile who is involved in a grave and heinous offence, the Board/Court should be more careful and conscious and once the the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available and is proved then there was no justification to consider the age certificate issued by Municipal Corporation, Moradabad for determining the age of the accused-opposite party No.2 or determining the age by the medical Board.
In the present case in the school certificate from Class UKG to XI the date of birth of the opposite party No.2 is recorded as 16.11.1999, therefore, undoubtedly opposite party No.2 was juvenile on the date of incident, therefore, objection of the revisionist has no force that she is not juvenile on the date of incident.
The Court below has rightly considered the certificate issued by the Board from where the opposite party No.2 has passed her matriculation examination in which her date of birth is recorded as 16.11.1999 and the court below has passed the impugned order considering the provision of Section 94 (2) of the Act, 2015.
19. In view of the aforesaid discussion and considering the above proposition of law laid down by the Hon'ble Apex Court, I am in full agreement and I find no illegality or perversity in the impugned order dated 09.03.2017 passed by Special Judge (POCSO Act) Additional Sessions Judge Court No. 12 Moradabad in Appeal No. 207/2016 (Shane Abbas Vs. Kumar Fiza Zaidi) dismissing the appeal of the present revisionist and confirmed the order dated 20.10.2016 passed by Juvenile Justice Board Moradabad in Case No. 77/2016 arising out of Case Crime No. 237/2016, under Sections 302, 120B I.P.C. Police Station Civil Lines, District Moradabad.
20. Accordingly, the revision does not require any interference by this Court and is hereby dismissed.
21. The file is consigned to record.
22. Let the copy of this judgment and order be placed before he Registrar General, High Court, Allahabad to communicate the same to all the District Judges and the Presiding Officer of all the Juvenile Justice Board of the districts for its necessary compliance.
Order Date :- 24.03.2022 Arvind