Kulwant Singh vs State of Punjab

Kanwaljit Singh Ahluwalia, J.

Criminal Misc. No. 1796 of 2012

Criminal Misc. Application is allowed.

Copy of matriculation certificate (Annexure P5) is taken on record.

Criminal Misc. No. M-129 of 2012

The present petition has been filed u/s 438 Cr.P.C. for grant of pre-arrest bail to the petitioner in case arising out of FIR No. 49 dated 20.5.2011, registered at Police Station Talwandi Sabo, District Bathinda, under Sections 307, 452, 506, 148 & 149 IPC and Section 25/54/59 of the Arms Act, 1959 (hereinafter referred to as "the Act").

The primary argument raised by learned counsel for the petitioner is that date of birth of petitioner is 9.12.1993, therefore, he is a delinquent juvenile in conflict with law and thus, he cannot be kept into custody against the mandate of law laid in Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "the Act").

This Court, on 4.1.2012, had passed the following order:

Counsel for the petitioner prays for a short adjournment to place on record matriculation certificate of the petitioner to show that he is less than eighteen years of age and as per Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, the petitioner is to be treated as a juvenile.

List on 10th January, 2012.

Pursuant thereto, learned counsel for the petitioner has placed on record matriculation certificate of the petitioner as Annexure P5. In Hari Ram v. State of Rajasthan and Another 2009 (2) RCR 878, reliance has been placed upon Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the Rules") and for determination of the age of a juvenile, it has been held that Rule 12(3)(b) of the Rules is to apply. Rule 12(3)(b) of the Rules reads as under:-

34...Sub-Rule (3) of Rule 12 indicates that the age determination inquiry by the Court or Board, by seeking evidence, is to be derived from :

(i) the matriculation or equivalent certificates, if available, and in the absence of the same;

(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;

Sub-Clause (b) of Rule 12(3) provides that only in the absence of any such document, would a medical opinion be sought for from a duly constituted Medical Board, which would declare the age of the juvenile or the child. In case exact assessment of the age cannot be done, the Court or the Board or as the case may be, the Child Welfare Committee, for reasons to be recorded by it, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on the lower side within a margin of one year.

Issue notice of motion.

On asking of the Court, Mr. B.S. Sra, Additional Advocate General, Punjab, accepts notice on behalf of the respondent. A copy of petition has been supplied to him. Mr. Sra has gone through the contents of the petition and has submitted that bail of a delinquent juvenile in conflict with law can only be decided u/s 12 of the Act, therefore, the Competent Authority, to decide his bail, is a Juvenile Justice Board (hereinafter referred to as "the Board").

I find merit in the contentions raised by learned counsel for the State. Accordingly, the present petition is disposed of by giving following directions:-

A) That the petitioner shall appear before the concerned Board within ten days from today.

B) For a period of ten days, the petitioner shall not be taken into custody and his arrest shall remain stayed.

C) The Board, on appearance of the petitioner, in accordance with the provisions of law, shall hold an inquiry and determine as to whether he is a juvenile or not.

D) On appearance before the Board, the petitioner shall file an application, for grant of pre-arrest bail, u/s 12 of the Act and till the inquiry is completed, the same shall be decided by the Board, in consonance with the provisions of law.

E) In case, the Board comes to conclusion that the petitioner is a juvenile, then he shall be dealt with in accordance with the provisions of the Act and the Rules made thereunder. If the Board comes to otherwise, then the petitioner will be at liberty to approach this Court to press his claim for grant of pre-arrest bail.