HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 44 Case :- CRIMINAL REVISION No. - 2504 of 2013 Revisionist :- Gaurav Katiyar Opposite Party :- State Of U.P. & 2 Others Counsel for Revisionist :- Akhil Kumar Shukla Counsel for Opposite Party :- Govt. Advocate,S.K.Tripathi Hon'ble Bharat Bhushan,J.
1. Heard Dr. S.B.Singh, learned counsel for the revisionist, Sri R.S.Pandey, learned counsel for respondent no. 2 and learned AGA for the State.
2. This criminal revision is directed against the appellate judgment dated 13.8.2013 passed by Additional Sessions Judge/Special Judge (S.C./S.T. Act), Kannauj passed in Criminal Appeal No. 30 of 2012 (Raju Gupta versus State of U.P. and another) setting aside the judgment and order dated 16.6.2012 passed by Juvenile Justice Board, Kannauj in Case crime no. 542 of 2011 under sections 363, 366, 376 IPC, Police Station Kotwali, District Kannauj whereby revisionist was declared juvenile under Juvenile Justice (Care and Protection of Children) Act, 2000 (in short, Juvenile Justice Act) and Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short, Rules 2007).
3. Brief facts are that a First Information Report (in short, FIR) was lodged alleging that revisionist Gaurav Katiyar enticed away the minor daughter of complainant. Victim's statement under section 161 Cr.P.C. was recorded subsequent to her recovery wherein she reportedly denied allegations against the revisionist. However, Police continued investigation and thereafter filed charge-sheet against revisionist Gaurav Katiyar. During pendency of this criminal trial, an application was moved on behalf of Gaurav Katiyar before Juvenile Justice Board claiming juvenility. The Juvenile Justice Board conducted enquiry and during the course of enquiry, the statement of Daroga Singh, Assistant teacher, Ganga Ram Balak Ram Inter College, Umran, Kannauj, Smt. Soni Katiyar, Clerk, Shiv Saraswati Gyan Mandir, Saraimeer, Kannauj and Smt. Reeta Katiyar, mother of the revisionist were recorded. After considering all the materials available on record, especially considering the date of birth enshired in High School certificate, revisionist Gaurav Katiyar was declared juvenile by Juvenile Justice Board, Kannauj vide order dated 16.6.2012. Feeling aggreived, informant filed a Criminal Appeal No. 30 of 2012 (Raju Gupta versus State of U.P. And another) claiming that Juvenile Justice Board had wrongly ascertained the age of the revisionist. Informant relied upon the Votor I.D.Card /voter register and discrepancies enshired in oral testimonies of Smt. Reeta Katiyar. The appellate court relying upon the judgment in Sushil Kumar versus Rakesh Kumar (2003) 8 S.C.C. 673 agreed with the contention of the appellant and set aside the order dated 16.6.2012 passed by Juvenile Justice Board, Kannauj vide order dated 13.8.2013. This order is under challenge before this Court in the revisional jurisdiction.
4. A comprehensive legislation has been enacted for dealing with the juveniles in conflict with law. Juvenile Justice Act created a separate structure for the trial of juveniles. The Rules 2007 has laid-down a detailed procedure for ascertaining the age of juvenile, said to be in conflict with law. Rule 12 of the Juvenile Rules, 2007 has delineated a detailed and clear procedure for determination of age of juvenile in conflict with law. Rule 12 of the Juvenile Rules 2007 provides that in every case concerning a child or a juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or as the case may, by obtaining the matriculation or equivalent certificates, if available, and in absence whereof the date of birth certificate from the school (other than a play school) first attended and in the absence whereof the birth certificate given by a corporation or a municipal authority or a Panchayat, and only in the absence of all of the aforesaid documents, the medical opinion will be sought from a duly constituted Medical Board. It is pertinent to point out that a seriatim has been prescribed under the rule itself. This order cannot ordinarily be disturbed, meaning thereby that if the High School certificate is available then the trial court cannot seek medical opinion for determination of age if such certificate is found to be genuine.
5. A bare perusal of the aforesaid provisions demonstrates that a clear cut parameters have been fixed for judge to acertain the age of juvenile. The Juvenile Justice Board are not required or expected ordinarily to go beyond the Rule-12 of Rules 2007. The order of Juvenile Justice Board dated 16.6.2012 clearly shows that the High School certificate was indeed placed on record which indicated the date of birth of revisionist as 21.12.1993. The incident admittedly occurred on 15.9.2011. In calculation, the Juvenile Justice Board found that revisionist was below the age of 18 years on the date of incident. The matter should have rested at this stage. Unfortunately, the appellate court carried a roving enquiry without disclosing reasons for disbelieving the High School certificate. Infact, High School certificate of U.P. Board was not discussed in detail. The court discussed the oral testimonies of mother of the revisionist and voter list as well as certificates issued by the earlier schools and on finding some discrepancies, the order of the Juvenile Justice Board was set aside. In this connection, the appellate court also relied upon the judgment in Sushil Kumar case (Supra). Before further discussing the order of the appellate court, it is pertinent to point out that the judgment of Sushil Kumar case(Supra) was not delivered in relation to Juvenile Justice Act. In that case whole dispute related to the petition under Representation of the People Act, 1951 and in this connection, certain observations were made by the Apex Court regarding the age of a particular person. In the instant case, age determination has to be done under the provisions of Juvenile Justice Act and Rules 2007. No extraneous material can be considered if the certificate mentioned in Rule-12 (3) (i) (ii) (iii) are available and have not been declared fabricated or false. The Apex Court in Ashwani Kumar Saxena vs State Of M.P (2012) 9 S.C.C. 750 has held that age determination of any claimant of juvenility has to be made in accordance with the provisions of Juvenile Justice Act and Rules 2007. The relevant paragraphs of the judgment of Apex Court are reproduced below :-
"10. Let us now examine the meaning of the words inquiry, enquiry, investigation and trial as we see in the Code of Criminal Procedure and their several meanings attributed to those expressions.
"Inquiry" as defined in Section 2(g), Cr.P.C. reads as follows:
"Inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.
The word "enquiry" is not defined under the Code of Criminal Procedure which is an act of asking for information and also consideration of some evidence, may be documentary.
"Investigation" as defined in section 2(h), Cr.P.C. reads as follows:
"Investigation includes all the proceedings under this code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
The expressions "trial" has not been defined in the Code of Criminal Procedure but must be understood in the light of the expressions "inquiry" or "investigation" as contained in sections 2(g) and 2(h) of the Code of Criminal Procedure."
The expression "trial" has been generally understood as the examination by court of issues of fact and law in a case for the purpose of rendering the judgment relating some offences committed. We find in very many cases that the Court /the J.J. Board while determining the claim of juvenility forget that what they are expected to do is not to conduct an inquiry under Section 2(g) of the Code of Criminal Procedure, but an inquiry under the J.J. Act, following the procedure laid under Rule 12 and not following the procedure laid down under the Code.
The Code lays down the procedure to be followed in every investigation, inquiry or trial for every offence, whether under the Indian Penal Code or under other Penal laws. The Code makes provisions for not only investigation, inquiry into or trial for offences but also inquiries into certain specific matters. The procedure laid down for inquiring into the specific matters under the Code naturally cannot be applied in inquiring into other matters like the claim of juvenility under Section 7A read with Rule 12 of the 2007 Rules. In other words, the law regarding the procedure to be followed in such inquiry must be found in the enactment conferring jurisdiction to hold inquiry.
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.
We also remind all Courts/J.J. Board and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate etc. mentioned in Rule 12 (3) (a) (i) to (iii). The courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection.
11. "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.
Once the court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in subsection (5) or Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the Rule 12. Further, Section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination.
11.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.
12. We have come across several cases in which trial courts have examined a large number of witnesses on either side including the conduct of ossification test and calling for odontology report, even in cases, where matriculation or equivalent certificate, the date of birth certificate from the school last or first attended, the birth certificate given by a corporation or a municipal authority or a panchayat are made available. We have also come across cases where even the courts in the large number of cases express doubts over certificates produced and carry on detailed probe which is totally unwarranted."
6. Considering the law laid-down by the Apex Court, the appellate court was precluded from considering extraneous material when reliable High School certificate was available. The appellate court relied upon extraneous material and law laid-down in Sushil Kumar cas(Supra), which in fact was not applicable in the instant case. Accordingly, the criminal revision is allowed and the judgment and order dated 13.8.2013 passed by Additional Sessions Judge/Special Judge (S.C./S.T. Act), Kannauj passed in Criminal Appeal No. 30 of 2012 (Raju Gupta versus State of U.P. and another) is set aside and the order dated 16.6.2012 passed by Juvenile Justice Board, Kannauj is restored.
7. Let a copy of this order be sent to trial court through the Sessions Judge, Kannauj within two weeks.
Order Date :- 28.9.2015 SU.