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Judgment
Arunachalam, J.—The Petitioner was shown as one of the accused in C.C. No. 5 of 1985 on the file of the Additional Sessions Judge,
Periyar District at Erode. In Cr. No. 478 of 1984 registered on the file of Gopichettipalayam police station three persons were shown as accused.
The Petitioner and another Shanmugham are stated to be the sons of one Duraiswami, yet another accused in the same crime. The Judicial Second
Class Magistrate, Gopichettipalayam, in his committal proceedings found the Petitioner and Shanmugham to be juveniles and therefore, split up
their case from that of the adult accused Duraiswami and committed both the cases for trial to the Court of Session, Periyar District at Erode.
The learned magistrate had the Petitioner and Shanmugham radiologically examined. Subsequently, the Radiologist Dr. A. Murugesan was
examined as C.W.1. The evidence of C.W.1 was that Shanmugham was aged 14 years, Dr. Kali Goundar was examined as C.W.2. and it is his
evidence that the age of the Petitioner then was 17 years. After complying with the formalities contemplated u/s 207 Code of Criminal Procedure
the case against the juveniles was also forwarded to the Sessions Court.
When the learned Sessions Judge took up enquiry against the juvenile accused, learned Public Prosecutor chose to represent that the Petitioner
herein was an adult accused. Therefore, the learned Sessions Judge furnished yet another opportunity to the prosecution to adduce evidence
regarding the age of the Petitioner. In the Sessions Court one Yesuraj, Headmaster of Sacred Mariyannai Primary School was examined as
C.W.1. He deposed that Dhanapal son of Ramasami was admitted in the Fourth Standard on 25-6-1973. The date of birth of the said Dhanapal is
found in the record was 20-5-1965. On 31-3-1977, record-sheet of the said Dhanapal was returned to admit him in a different school. Since
Dhanapal could not be admitted in any other school he was re-admitted on 20-6-1977 in the same school. C.W.1 stated in Court that he had with
him the relevant records to show the date of birth of the said Dhanapal, whom he identified to be the Petitioner herein. While cross examined, he
had stated that some parents used to give a higher age for their children at the time of admission and he was not aware if the recorded age of
Dhanapal also belonged to that category. C.W.1 also stated in his evidence that at the time of admission of Dhanapal, a record sheet from
Odakkattur school was produced and the same had been returned to Dhanapal when he stopped attending school. It is clear from the records that
no documents were marked before the court of Session. It is, therefore, apparent that the evidence of C.W.1 is available for scrutiny without the
documents themselves being marked and tested by cross examination. The learned Sessions Judge arrived at the conclusion that since the
occurrence had taken place on 17.4.1984, the Petitioner was not a juvenile on that date since the evidence of C.W.1 would show that the
Petitioner was born on 20-5-1965. While commenting upon the declaration of age by the Committal Magistrate the learned Sessions Judge held
that the opinion of the Radiologist was only approximate. He further found that if the date of birth as spoken to by C.W.1 Yesuraj was not correct,
the onus was on the Petitioner to disprove it. In that view, the case against the Petitioner was again split up by the Court of Session and remitted to
the committal magistrate to take the case on file over again and commit the Petitioner for trial as an adult accused. It is this order of the Court of
Session which is challenged in this revision.
Learned Counsel for the Petitioner contended that the Court of Session had erred in remitting the matter to the committal Court especially when
the committal Court had declared the age of the Petitioner as contemplated u/s 37 of the Tamil Nadu Children Act subsequent to recording of
medical evidence. It was further contended that the order of the committal Court cannot be invalidated by any subsequent proof, that the age of the
Petitioner had not been correctly stated to that court and the sessions court must have confirmed the age presumed or declared by the committal
court to be the true age of the Petitioners.
I have heard Mr. R. Shanmughasundaram, learned Additional Public Prosecutor on these contentions. To appreciate the contentions of the
learned Counsel for the Petitioner it will be necessary to consider the provisions of Section 37 of the Tamil Nadu Children Act, extracted
hereunder:
Presumption and determination of age:
(1) Where a person, whether charged with an offence or not, is brought before any Court otherwise than for the purpose of giving evidence, and it
appears, to the court that he is a child or young person, the court shall make due inquiry as to the age of that person and for the purpose shall take
such evidence as may be forthcoming at the hearing of that case, but an order or judgment of the court shall not be invalidated by any subsequent
proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of the
person so brought before it shall, for the purpose of this Act, be deemed, to be the true age of that person, and, where it appears to the court that
the person so brought before it is of the age of eighteen years or upwards, the person shall for the purposes of this Act be deemed not to be a child
or young person.
2) No court shall in appeal or revision interfere with any presumption or declaration as to age made under Sub-section (1).
In terms of this Section, a person whether charged with an offence or not when produced before any Court otherwise than or giving evidence, if it
appeared to that court that the person so produced was a child or young person, the court was bound to make due inquiry as to the age of that
person and for the said purpose, take all such evidence as may be forthcoming at the hearing of that case. This Section further specifics that the
order of judgment of the court shall not be invalidated by any subsequent proof that the age of that person had not been correctly stated and the
age presumed or declared by the court to be the age of the person so brought before it shall, for the purpose of this Act, be deemed, to be the true
age of that person. Sub-section (2) is also very relevant for it specifies that no Court in appeal or revision shall interfere with any presumption or
declaration as to age made under Sub-section (1).
It is very clear that by following the provisions of Section 37 of the Tamil Nadu Children Act, the Committal Magistrate had declared the age of
the Petitioner as 17 years. The said declaration brings the Petitioner within the definition of ''young person'' contemplated u/s 3(2) of the Act. The
prosecution had not chosen to place before the committal magistrate the evidence of Yesurai examined before the Court of Session. The
magistrate, therefore, was justified in declaring the age of the Petitioner on the evidence which had been placed before him. As a matter of fact, the
committal court had acted suo motu and conducted an inquiry with the help of medical experts to arrive at a definite conclusion regarding the age
of the Petitioner before declaring the same u/s 37 of the Tamil Nadu Children Act. The learned magistrate haying strictly followed the procedure
u/s 37 of the said Act and declared the age of the Petitioner, in law it will not be possible to invalidate the said declaration by subsequent proof that
the age of the Petitioner had not been correctly stated before the committal court. The haphazard way in which the prosecution had sought to
invalidate the declaration of age made by the committal court cannot but be commented upon. Though the learned Sessions Judge chose to
examine Yesuraj as C.W.1 he had not bestowed care to have the documentary evidence brought on record to furnish sufficient opportunity to the
Petitioner to challenge the same. As a matter of fact, the very exercise indulged in by the learned Sessions Judge does not appear to have the
sanction of law.
The, learned Additional Public Prosecutor sought to contend that the age of the accused may have to be fixed only by the trial Court, which is
the Court of Session in this case and, therefore, the fixation of the age of the Petitioner by the committal magistrate can be of no significance. I am
unable to agree with this contention for, the clear wording of Section 37 of the Tamil Nadu Children Act will not allow, such an interpretation. Rule
56 of the Criminal Rules of Practice States that in every case in which the precise age of an accused person is relevant to the determination of the
sentence or order to be passed, evidence should be taken on the question and whenever necessary the opinion of a medical expert should be
obtained. This is precisely what the learned committal magistrate had done.
A division Bench of this Court in Pichiguntle Katti Ramudu v. Emperor 1931 M.W.N. 261 : 34 L.W. 896 held that due enquiry and
ascertainment of age was essential. It is worthwhile to extract the observations of the Bench as hereunder:
It is quite clear that Section 37 of the Children Act requires that a ""due enquiry"" into age shall be made and that evidence shall be taken. We have
noticed a tendency among Judges and Magistrates to be content with the most perfunctory enquiry and to find that an accused is a young person
on most inadequate evidence. The burden of proof in such a matter must be on the accused, though, naturally, in any case of doubt, the Judge
would be careful to give him the benefit of the doubt. But the doubt must be real. It is obviously most desirable from several points of view that a
declaration of age u/s 37 should not be made except on adequate and proper evidence. In the first place, it is important, from the point of view of
the public interest, that criminals should suffer the legal penalty for their offences and not escape on an unduly lenient finding as to age. In the next, a
proper enquiry and finding are essential, for the declaration of age is final and cannot be interfered with in appeal or revision. Lastly, there is the
question of the length of detention in the Certified School.
In Crl. R.C. No. 1073 of 1961, Veeraswami, J. as he then was, had occasion to consider the scope of Section 37 of the Tamil Nadu Children
Act. In the case dealt with by the learned Judge, the District Magistrate, Chingleput, on the basis of a medical certificate, found that the age of
Ganesan, one of the persons dealt with by him, was 14 years. The certificate issued by the Doctor did not itself indicate as to how the age of
Ganesan was estimated. The learned Judge found that the certificate itself was not legal evidence and it had to be proved like any other document.
In that context, the learned Judge observed as hereunder:
As a matter of fact, Section 37(1) of the Madras Children Act, 1920, prescribes that when the age of the child is in question, the Court shall make
due enquiry as to the age and for that purpose shall take such evidence as may be forthcoming at the hearing of the case. It is only when that
enquiry is held as directed under Sub-section (1) of Section 37, that any declaration made on the basis of such enquiry will come within the scope
of Sub-section (2) of Section 37.
In that view, the learned Judge directed the District Magistrate to hold an enquiry as to the precise age of Ganesan, if necessary, by directing a
radiological examination.
A division Bench of this Court in R.T. No. 14 of 1965, finding that varying versions had been given by the Appellant as regards his age held in
its judgment dated 16-7-1965, that it was the duty of the Sessions Court to have caused medical examination of the Appellant to be taken and
recorded a finding as to the age of the Appellant. In that context, the following observations were made:
This High Court has issued repeated circulars to the Sessions Judges giving directions to be followed by them and to make an accurate record of
the age of the accused in murder cases. Some of the circulars have been printed at pages 383 and 384 of the Criminal Rules of Practice and
Circular Orders. Thus in High Court Proceedings No. 774 of 1954 dated 4-10-1954 a circular has been issued about the verification of the age of
the accused charged of murder and instructions have been given in that circular. The High Court has directed by that circular that the Sessions
Judges and Magistrates should follow the procedure mentioned in the circular and make an accurate record of the age of the accused in murder
cases. The High Court has issued another circular P.D is No. 674/48 dated 10-11-1948 directing that in cases in which the accused give their age
as under 21 years or who appear to the Court to be less than 21 years, the trial court should record a definite finding as to the age of the accused
on medical evidence as in the event of conviction such a finding is very important in order to determine whether either the Madras Borstal Schools
Act (ACT V of 1926) or the Madras Probation of Offenders Act (ACT III of 1937) should be applied to a particular case. The learned Sessions
Judge has failed to carry out these instructions with the result that we were constrained to call for a finding regarding the age of the Appellant.
Thereafter, in pursuance of the orders of the Division Bench of this Court, a radiologist was examined and the age of the Appellant therein was
declared.
In Ganesan v. Inspector of Police 1989 L.W. (Crl). 530, while considering similar provisions under the Juvenile Justice Act, I took the view
that the trial Judge cannot merely record a finding based on the certificate by the Radiologist if the person who claims himself to be a Juvenile was
ready and willing to place the material in his possession before Court by examination of other witnesses or himself to justify the stand taken by him
regarding his age. Before arriving at a conclusion, about the age of the person brought before him, the trial Judge should make a due enquiry as to
the age of that person and for that purpose he should take such evidence as may be necessary and should record a finding regarding his age. In
that case, the Radiologist was not examined and opportunity was not furnished to the Petitioner therein to cross-examine the Radiologist. I have
stated therein that the certificate of the Radiologist would not be admissible u/s 293, Code of Criminal Procedure, without the examination of the
Radiologist. This actually was the same principle enunciated by Veeraswami, J. as he then was, in Crl. R.C. No. 1073 of 1961.
In Chinnathambi, In re 1961 M.L.J. (Crl.) 671, the Andhra Pradesh High Court has considered the scope of revisional jurisdiction of the High
Court in the context of the duty cast on the magistrates to conduct due enquiry and fix the correct age of juvenile offenders. It was stated by the
Andhra Pradesh High Court that the fixation of the age of the juvenile offenders was important as it had a bearing on the question as to how the
person was to be dealt with. The fact that an age as presumed or declared by the Magistrate without making proper enquiry cannot be interfered
with by another in appeal or revision does not mean that a Magistrate may disregard the mandatory provisions of Section 37(1) altogether. Such
provision in the Act makes it all the more necessary that the trial Magistrate, who has to fix the age by due inquiry, should not fail to hold a due
inquiry and fix the age correctly for the purposes of the case. It will be relevant to extract the following observations of the Andhra Pradesh High
Court:
In these cases, the learned Magistrate has failed to hold an inquiry or ascertain the age as required in the mandatory provisions of Section 37(1) of
the Act. The filing of the age is important as it has a bearing on the question as to whether the person is a child or a young person and on the
question as to how the person is to he dealt with i.e., u/s 29(1) or u/s 29(3). The fact that an age as presumed or declared by the Magistrate
without making proper inquiry cannot be interfered with by another Court in appeal or revision does not mean that a Magistrate may disregard the
mandatory provisions of Section 37(1) altogether. Such a provision in the Act makes it all the more necessary that the trial Magistrate (who has to
fix the age by due inquiry) should not fail to hold a due inquiry and fix the age correctly for the purposes of the case. The attention of Juvenile
Magistrates is drawn to the observation of the Madras High Court in Pichiguntla Katti Ramudu Vs. Emperor,
It is quite clear that Section 37, Children Act, requires that a ""due enquiry"" into age shall be made and that evidence shall be taken. We have
noticed a tendency among Judges and Magistrates to be content with the most perfunctory enquiry and to find that an accused is a young person
on most inadequate evidence.... It is obviously most desirable from several points of view that n declaration of age u/s 37 should not be made
except on adequate and proper evidence.
In that particular case, the boy was convicted of the offence of murder u/s 302, Indian Penal Code and the evidence of one doctor was recorded
regarding his age. In cases u/s 29 also, the provisions of Section 37(1) regarding the fixing of age by the Magistrate by due inquiry have to be
strictly complied with.
The legal position is thus clear that once the Court before which a person had been produced, had conducted due inquiry, as in this case, and
declared the age of that person to be 17 years, it shall not be invalidated by any subsequent proof that the age of that person had not been
correctly stated to Court. A reading of Sections 37(1) and (2) together would positively show that the exercise indulged by the learned Sessions
Judge in this ease did not have the sanction of law. If that be so, the order of the learned Sessions Judge cannot be sustained. This revision is,
therefore, allowed, The order of the learned Sessions Judge dated 21-11-1985 in C.C. No. 5 of 1985 shall stand set aside and the order of the
Judicial Second Class Magistrate, Gopichettipalayam, in C.C. No. 216 of 1985 shall stand restored.
Before parting with this case, it must be stated that the prosecution as well as the defence owe a duty to diligently place before the Court of
first instance all the available evidence to facilitate declaration of age by the Court be it under the provisions of the Tamil Nadu Children Act, since
repealed, or under the provisions of the current Juvenile Justice Act. One cannot overlook that the community interest would require criminals to
suffer legal penalty for the offence committed by them and cannot be allowed to escape the clutches of law, on an unduly lenient finding as to age;
at the same time it cannot also be overlooked that the benefits of this social legislation cannot be denied to persons, who really deserve it, they
being juveniles. A heavy responsibility is cast on the Courts to hold a proper inquiry before the age of the person brought before it, is presumed or
declared, since such declaration or presumption has to be deemed to be final once conclusion is arrived at, that inquiry had been duly made.