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Judgment
Present Criminal Revision has been preferred by the Revisionist who is complainant in Crime No 134 of 2013 assailing the order dated 2.11.2013 whereby his criminal appeal No 69 of 2013 has been dismissed by the Addl Sessions Judge J.P.Nagar and upheld the order dated 18.09.2013 passed in case no 31 of 2013, by the Juvenile Justice Board, Amroha, whereby the Opp Party No 2 had been declared as Juvenile. The charges against the accused are under section 306, 504 IPC.
The issue that crops up for consideration in the instant revision is whether the Juvenile Justice Board has rightly declared Opp Party No 2 as Juvenile, according to Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007?
In the present matter following documents and evidence were filed by the Opp Party No 2, before the Juvenile Justice Board in order to prove the case of being juvenile.
(1)Transfer Certificate of the Opp Party No 2 issued by Beena Primary Pathshala Dariapur wherein the date of birth is mentioned as 18.06.1997.
(2)Transfer Certificate of the Opp Party No 2 issued by Tynno Tots Junior High School Amroha wherein date of birth of Opp Party No 2 is mentioned as 15.02.1996.
(3) C.W 1(Sanjeev Kumar) teacher of Primary School Dariapur has stated in evidence that- ^^Nk= iou dk izos'k d{kk 03 esa lu 14-07-03 eas gqvk Fkk blesa firk dk uke Hkqyu flag ,oa ekrk dk uke ek;k vafdr gS tks xzke lSjriqjk dk fuoklh gS blesa Nk= dk tUefrfFk 18-06-97 vafdr gSA
छात्र ने कक्षा 03 से जो पूर्व प्रा0 पाठशाला पचोदरा में अध्ययन किया है प्रवेश सं0 464 अंकित है।"
छात्र पवन का पंजिका में एसआर पंजिका पर 464 छात्र पवन का नाम अंकित है कक्षा 05 उतीर्ण करने की तिथि 30.6.05 है।
(4) C.W 2 (Kukund Singh), father of the accused has stated in his evidence that- ^^igys ipksdjk izk Ldwy esa i<+k Fkk ckn esa izk fo|ky; nfj;kiqj esa i<+k gS chuw izk0 ikB'kkyk nfj;kiqj gS nksuksa Ldwyksa esa izos'k djkus esjh iRuh xbZ Fkh esjh iRuh us vUnkts ls gh iou dh mez fy[kokbZ Fkh eq>s /;ku ugha fd nksuksa Ldwyksa esa tUefrfFk D;k fy[kokbZ Fkh tUe ls lEcaf/kr dksbZ izek.k i= ugha gS mldh mez vUnkts ls fy[kh xbZ FkhA^^
The Juvenile Justice Board after considering the documents and other materials on record came to the conclusion by order dated 18.9.2013 that-
''अतः समस्त शैक्षणिक अभिलेखों के परिशीलन के उपरान्त किशोर न्याय बोर्ड का यह अभिमत है कि शैक्षिणक अभिलेखों के आधार पर अभियुक्त की जन्मतिथि 18/06/1997 है जबकि घटना दिनांक 07.06.13 की बताई गई है। अतः अभियुक्त की आयु शैक्षणिक प्रपत्रों के आधार पर घटना की दिनांक को 15 वर्ष 11 माह 19 दिन निर्धारित की जाती है। अभियुक्त बोर्ड के समक्ष भी उपस्थित हुआ है वह देखने में भी प्रथम दृष्टया 18 वर्ष से कम की आयु का लगता है। अतः किशोर के संरक्षक द्वारा दिया गया किशोर घोषित किए जाने का प्रार्थनापत्र स्वीकार किए जाने योग्य है।"
The Revisionist filed appeal which was dismissed on 2.11.2013, wherein it has been held that-
''प्रत्युत्तरदाता पवन कुमार की ओर से अवर न्यायालय की पत्रावली पर दाखिल जो बीनू प्राईमरी पाठशाला, दरियापुर के स्थानांतरण प्रमाणपत्र की असल प्रति कागज सं0-7 ख/50 है, उसमें पवन कुमार की जन्मतिथि 18.06.1997 दर्शायी गई है और इसके साथ रिपोर्ट 7 ख/52, जो खण्ड शिक्षा अधिकारी, वि0ख0 जोया द्वारा निर्गत की गई है, उसमें पवन कुमार को कक्षा 3 से कक्षा 5 तक शिक्षा ग्रहण करना बताया है और जो स्थानांतरण प्रमाणपत्र कागज सं0-7 ख/10, डाया प्रति टाईनी टाट्स जू0हा0 स्कूल, अमरोहा, जिला जे0पी0नगर है, उसमें पवन कुमार की जन्म तिथि 15.02.1996 दर्शायी गई है और घटना दिनांक 07.06.2013 की है। दोनों ही प्रार्थना पत्रों के हिसाब से अभियुक्त की आयु घटना की दिनांक को अट्ठारह (18) वर्ष से कम थी। अतः विद्वान अवर न्यायालय द्वारा पारित आक्षिप्त आदेश दिनांकित 18.09.2013 पारित कर अभियुक्त को किशोर घोषित करने में त्रुटि नहीं की गई है। अपीलार्थी/वादी द्वारा इन प्रमाणपत्रों के विरूद्ध कोई ऐसा साक्ष्य प्रस्तुत किया गया है, जिसके आधार पर यह माना जा सके कि ये प्रमाणपत्र असल टी.सी. व फोटो प्रति टी.सी. सही नहीं है।
तद्नुसार अपील बलहीन है और खारिज होने योग्य है।"
The learned counsel for the revisionist argues and submits that father of the accused had filed only School Leaving Certificate but he was unable to file any birth certificate of the accused Pawan. He further submits that the Head Master of the Primary School of Pachkaura has denied in his statement about any admission of accused Pawan. He also submits that the medical examination of the accused Pawan Kumar had not been conducted. He also submits that the trial will be vitiated regard being had to the view of the judgment passed by this Court in Sher Singh @ Sheru Vs State of U.P. reported at 2016 (97) ACC 324.
Per contra, the learned counsel for the Opp Party contents that the order impugned is correct and from the documents produced and statement made before the Board, the age of the Opp Party was less than 18 years on the date of occurrence. Therefore, there is no need to interfere with the impugned judgment.
For the present matter, it is apt to mention the Relevant Rule which is Rule 12 of Juvenile Justice (Care and Protection of Children) Rules 2007. The aforesaid Rule 12 being germane to the controversy is quoted below.
Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 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 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 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.
According to above rule 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 to be juvenile on the basis of medical opinion from a duly constituted medical board. 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.
Hon'ble Supreme Court in a recent case of Nagendra vs State of U.P. (2017 ) 11 SCC 598 has held that-
"(3) Having given our thoughtful consideration to the submission advanced at the hands of the learned counsel for the appellant we are satisfied that a school leaving certificate is not a relevant consideration to determine the juvenility of an accused/convict under Rule 12 (3) thereof. The aforementioned statutory provision was not considered by this Court while deciding Ranjeet Goswami case. The same cannot therefore be any precedential value in terms of the statutory provisions, referred to herein above."
In another matter Hon'ble Supreme Court in case of Parag Bhatt Vs State of U.P. (2016 ) 12 SCC 744 has considered the following issue:
" (12) The only point for consideration before this Court is : whether in the facts and circumstances of the present case when the date of birth mentioned in the matriculation certificate is doubtful, the ossification test can be the last resort to prove the juvenility of the accused."
And came to the conclusion that:-
"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 regard 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 doge or dupe the arms of law, cannot be allowed to come to his rescue.
35.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 o the date of birth then as laid down by the court in Abuzar Hossain, an enquiry for determination of the age of the accused is permissible which has been done in the present case."
Para 39.3 of Abuzar Hussain Vs State of West Bengal (2012) 10 SCC 439 is quoted below being relevant for the adjudication of the present matter.
" 39.3. 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 Rules 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 Section 7A and order an enquiry for determination of the age of the delinquent.
In view of the above mentioned position of law, I consider the fact and circumstance of the present case.
(a) In the present case, there are two Transfer Certificates which have been produced before the Juvenile Justice Board which show dateof birth of the Opp Party to be as 18.06.1997 and 15.02.1996. Further the averment made by the witnesses that they are not sure about the date of birth of Opp Party no 2. Therefore, in these circumstances, the said documents cannot be treated as conclusive proof of the date of birth.
(b) Hon'ble Supreme Court in the matter of Nagendra (supra) has held that that the School Leaving Certificate is not a relevant consideration to determine the juvenility. Therefore, the Juvenile Justice Board has committed error in relying upon the School Leaving Certificate in a very casual manner.
(c ) The appellate court has also adopted a very casual approach and committed grave error in observing that-
''दोनों ही प्रार्थना पत्रों के हिसाब से अभियुक्त की आयु घटना की दिनांक को अट्ठारह (18) वर्ष से कम थी। अतः विद्वान अवर न्यायालय द्वारा पारित आक्षिप्त आदेश दिनांकित 18.09.2013 पारित कर अभियुक्त को किशोर घोषित करने में त्रुटि नहीं की गई है।"
(d) The Juvenile Justice Board has not followed the procedure prescribed in Rule 12 of Rules 2007 and when there was doubt in the date of birth mentioned in the documents produced by the accused and when no document as mentioned in Rule 12 (3) (a) (I) (ii) or (iii) of Rules 2007 was produced, the correct course would be to follow the procedure prescribed in Rule (12) (3) (b) and medical opinion ought to have been called for.
In the conspectus of the above discussion, it is clear that Juvenile Justice Board has not followed the procedure prescribed in Rule 12 and wrongly declared the Opp party no 2 as Juvenile on the basis of a document (Transfer Certificate) which is not even a document prescribed in Rules.
In view of the above discussion, the revision petition is allowed and order dated 2.11.2013 passed by junveile Justice Board is set aside. The matter is remanded to the Juvenile Justice Board, Amroha to reconsider the case strictly in accordance with law in terms of Rule 12 of the Juvenile Justice (Care & Protection of Children) Act 2015 and the rules framed thereunder.
The accused is on bail. His bail bonds are cancelled. He shall surrender before the trial court within a period of four weeks or otherwise the bail bonds shall stand cancelled.