Sunny @ Jatin Yadav vs State Of U.P. And Anr.
2012 Latest Caselaw 6034 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

'AFR'
 

 
Court No. - 50
 
Case :- CRIMINAL REVISION No. - 975 of 2012
 

 
Petitioner :- Sunny @ Jatin Yadav
 
Respondent :- State Of U.P. And Anr.
 
Petitioner Counsel :- Sunil Vashisth
 
Respondent Counsel :- Govt. Advocate, R.N.Rai, R.P.Singh, Sunil Singh, V.K.Jaiswal
 

 
Hon'ble Manoj Misra,J.

Heard learned counsel for the revisionist, Sri R. N. Rai for the opposite party No.2 and the learned A.G.A for the State.

By this revision application, the revisionist has challenged the order dated 22.3.2012 passed by the Additional Sessions Judge, Court No.1, Ghaziabad in S.T. No.1082 of 2011, whereby the revisionist's claim of juvenility with reference to case Crime No.634 of 2011, P.S Kavinagar, District Ghaziabad, has been denied.

  The contention of the learned counsel for the revisionist is that the claim of juvenility has not been considered in the light of the provisions of sub-rule (3) of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as Rules, 2007). It is contended that in absence of any reliable certificate with respect to the date of birth of the revisionist, the court was under a legal obligation to take into consideration the medical opinion of a duly constituted medical board with regards to the age of the revisionist for the purpose of deciding the claim of juvenility. But the court below instead of relying on the medical opinion of the Chief Medical Officer, which disclosed his age as 17 years, took into consideration the physical appearance of the revisionist and arbitrarily added two years to the age determined through medical examination and rejected the claim of juvenility by holding the revisionist as 19 years of age. It is, accordingly, contended that the order of the court below is not legally justified and deserves to be set aside.

Per contra, Sri R.N. Rai, learned counsel for the opposite party No.2 submitted that under sub-rule (2) of Rule 12 of the Rules, 2007, the court is required to form an opinion on the basis of physical appearance as well as documents. It is contended that since the court below has formed an opinion on the basis of physical appearance of the claimant, the order passed by the court below cannot be said to be illegal or perverse. It has also been submitted that in the instant case, the medical opinion was not sought from a duly constituted medical board as contemplated by clause (b) of sub-rule (3) of Rule 12 of the Rules, 2007, therefore, the opinion rendered by the Chief Medical Officer was of no relevance.

Before examining the respective weight of the rival submissions it would be useful to examine the provisions governing the procedure to be followed in determination of age of an accused claiming juvenility. The procedure to be followed is laid in Rule 12 of the Rules, 2007. Sub-rule (1) of Rule 12 provides that the age of a juvenile in conflict with law shall be determined by the Court or the Board or as the case may be the Committee within a period of thirty days from the date of making of the application for that purpose. Sub-rule (2) of Rule 12 provides as follows:

"(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."

Whereas sub rule (3) of the Rules, 2007 provides as follows:

"(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 absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a Panchayat;

(b) and only in 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 cases 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.''

Relying on Clause (b) of sub-rule (3) of Rule 12 of the Rules, 2007, the learned counsel for the revisionist submitted that in the instant case as the court below had discarded the certificate obtained from the school and documents contemplated in (i), (ii) or (iii) of clause (a) were not available, medical opinion of a duly constituted Medical Board alone was relevant and ought to have been the basis for determining juvenility.

Having considered the rival submissions as also on perusal of record, I find that the Chief Medical Officer opined that the age of the revisionist was 17 years. However, the court below, taking into consideration the physical appearance of the revisionist, by applying the general law principle that there could be a variation of plus/ minus two years in the age determined through medical examination, added two years to the age of the claimant and, accordingly, determined the age of the claimant as 19 years. Hence, it rejected the claim of juvenility.

In my view the procedure adopted by the court below in determining the age of the revisionist is not legally sustainable. The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act) and the Rules framed thereunder provide for a special procedure with regards to determination of the age of a juvenile in conflict with law. Once a special procedure is prescribed, the age is to be determined in accordance with the special procedure provided by the Act and the Rules framed thereunder. The general principles for determination of the age are relegated to the background. Accordingly, the addition of two years to the age determined through medical examination, for deciding a claim of juvenility, was not legally justified and is in the teeth of the provisions of clause (b) of sub rule (3) of rule 12 of the Rules, 2007.

As regards the contention of the learned counsel for the opposite party no.2 that in view of sub rule (2) of Rule 12 of the Rules, 2007, the Court below was justified in taking into consideration the physical appearance of the claimant for the purpose of adding two years to the age determined by the Chief Medical Officer, suffice it to say that sub rule (2) is for drawing a prima facie opinion with regards to the age of a juvenile in conflict with law for the purpose of deciding as to whether he should be sent to the observation home or in jail. Whereas, sub rule (3) provides for the procedure to be followed in age determination inquiry, the verdict of which is final and conclusive. Moreover, it is for the duly constituted medical board to form an opinion with regards to the age of the juvenile. For this purpose it may rely on secondary sexual characteristics as well. It is not for the Court to add a year or two to the age determined by the medical board. Although it is always open for the Court, for reasons to be recorded, if considered necessary, give benefit to the child or juvenile by considering his age/ her age on lower side within the margin of one year. However, the Court may, in a suitable case, also find fault in the opinion rendered by the medical board and call for a fresh report from a duly constituted medical board. But under the provisions of the Act and the Rules, 2007 the Court or the Board or the Committee, as the case may be, cannot add two years to the age determined through medical examination and thereby reject the claim of juvenility.

At this stage, the learned counsel for the opposite party no.2 submitted that the opinion rendered with regards to the age of the revisionist was not by a duly constituted medical board, therefore, the matter may be remanded back to the court below.

For the reasons recorded above, I consider it appropriate to set aside the order passed by the court below and to remand the matter back to the court below to decide the matter afresh, in accordance with law and in the light of the observations made herein above.

The revision application is, accordingly, allowed. The order dated 22.3.2012 passed by the Additional Sessions Judge, Court No.1, Ghaziabad is, hereby, set aside. The court below shall decide the claim of juvenility afresh, in accordance with law, and if the Court is of the view that the opinion rendered by the Chief Medical Officer is not otherwise proper or is not by a duly constituted Medical Board, as contemplated in the Rules, 2007, it would obtain a fresh report from a duly constituted Medical Board and decide the claim accordingly.

It is expected that the aforesaid exercise shall be completed within a period of 30 days from the date of production of certified copy of this order.

With the aforesaid directions, the revision application stands disposed off.

Order Date :- 14.12.2012

G.S