Smt. Leena Katiyar vs State Of U.P. & 2 Others
2015 Latest Caselaw 633 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

'AFR'
 
Reserved on 01.05.2015
 
Delivered on 22.05.2015
 
									
 
Case :- CRIMINAL REVISION No. - 2490 of 2013
 

 
Revisionist :- Smt. Leena Katiyar
 
Opposite Party :- State Of U.P. & 2 Others
 
Counsel for Revisionist :- Akanksha Yadav
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Manoj Misra, J.

The instant revision has been filed by the informant of Case Crime No. 467 of 2007, P.S. Kotwali Fatehgarh, District Farrukhabad, against the order dated 23.08.2013 passed by the Special Judge (D.A.A.), Farrukhabad in S.S.T. No. 40 of 2007 by which the claim of juvenility raised by the opposite party No.2 has been accepted and the opposite party No.2 has been declared juvenile with reference to Case Crime No.467 of 2007.

The facts relevant to decide this case are being narrated herein below. The opposite party No.2, whose name was recorded in the remand-sheet as Happy @ Shivam @ Harsh, set up a claim of juvenility in respect of an incident dated 11.04.2007 of which first information report was registered as Case Crime No. 467 of 2007 at P.S. Kotwali Fatehgarh, District Farrukhabad. Juvenility was claimed on the basis of recorded date of birth 10.07.1989 in the high school pass certificate of the year 2004. The claim of juvenility was accepted by the Court below vide order dated 24.01.2008 against which Crl. Revision No. 595 of 2008 was preferred before this Court by the mother of the victim (the revisionist herein), which was disposed of by order dated 12.11.2010 thereby remitting the matter back to the trial court to pass a fresh order in accordance with the procedure prescribed in the Juvenile Justice (Care and Protestion of Children) Act, 2000 (hereinafter referred to as the Act, 2000) after considering the objections raised by the revisionist. It was specifically observed in the order of remand that the trial court will pass appropriate order in accordance with the law without being influenced by the order passed by this Court.

Pursuant to the order passed by this Court, the matter was re-examined by the court below. By the impugned order, the court below again accepted the claim of juvenility.

A perusal of the record would reveal that to support the claim of juvenility, several documents were produced like (a) transfer certificate from class 1 to 5; (b) transfer certificate from class 6 to 8; (c) transfer certificate from class 9 to 10; (d) transfer certificate from class 11 to 12; (e) High School Examination Admission Form; (f) High School Pass Certificate of the year 2004; (g) High School Mark-sheet of the year 2004; (h) High School Examination Gazette; (i) Intermediate Examination Certificate; (j) Intermediate Examination Mark-sheet; (k) passport of Shivam; (l) birth certificate issued by Nagar Palika Parishad, Farrukhabad; (m) character certificate of Shivam issued by Ramlal Ucchatar Madhyamik Vidhyalay, Paharpur, Shajahanpur; (n) certified copy of the service book of the father of Shivam, namely, Om Prakash Kateria; (o) identity card of Shivam issued by Venkateshwar College, New Delhi; (p) death certificate of the alleged elder brother of Shivam, namely, Harsh Kateria; and (q) Certificate issued by the doctor of District Jail Fatehgarh with regards to medical examination of Shivam.

In addition to above, oral evidence was led before the court below. The following witnesses were examined:

(a) C.W.1-Shivi George, Officer in charge, Saint Anthony Senior Secondary School, Fatehgarh; (b) C.W.2-Mahendra Pal Singh, clerk Aatmadev Gopalanand Intercollege, Ugarpur; (c) C.W.3- Kasim Hussain, clerk Sri Ramlal Singh Ucchatar Madhyamik Vidyalaya, Paharpur; (d) C.W.4-Om Prakash Katheria, the father of the accused-Shivam; (e) C.W.5- Balkrishna, Registration clerk, Sub-Registrar Office-II, Ghaziabad; (f) C.W.6- Mukul Kumar, Accounts clerk, S.V. Rozi Public School, Aliganj; (g) C.W.7- Ram Saran Lal, Retired Gram Panchayat Adhikari; (h) C.W.8-Shivram Singh, birth and death registration clerk, Nagar Palika Parishad, Farrukhabad; (i) C.W.9-Radheyshyam Dohrey, clerk, Nagar Palika Parishad, Fatehgarh; and (j) C.W.10- Chandramukhi Katheria (the mother of the accused-Shivam)

C.W.3 (Kasim Hussain) had proved the high school and intermediate transfer certificate as well as high school Gazette. C.W.4 (Om Prakash Katheria-the father of the accused-Shivam) as well as C.W.10 (Chandramukhi Katheria-the mother of the accused-Shivam) orally proved the date of birth of Shivam as recorded in the high school certificate. The informant (Smt. Leena Katiyar) had produced C.W.1 (Shivi George) to establish that a student by the name of Harsh Kateria son of Om Prakash Kateria had taken admission in Saint Anthony College and his date of birth was recorded as 02.12.1986.

On behalf of the informant, suggestion was made that in the police records the accused was named as Happy @ Shivam @ Harsh and even in the remand-sheet the name was incorporated as Happy @ Shivam @ Harsh, to which no objection was taken at the initial stage, therefore, the accused-Shivam @ Happy is no other person than Harsh whose date of birth was recorded in Saint Anthony College as 02.12.1986 and as such on the date of the incident i.e. 11.04.2007, the accused was aged about 21 years and was therefore not a juvenile.

To rebut the aforesaid suggestion, Om Prakash Kateria (C.W.4) and Smt. Chandramukhi Kateria (C.W.10), who are father and mother respectively of the accused-Shivam, took a case that Harsh was their elder son, who was born on 02.12.1986 and later, he died on 21.05.2000, whose death was also registered on 19.02.2001 of which a certificate was brought on record.

The informant had also raised a plea in the court below that in the bail application, the accused had taken a plea that he was availing various credit card facilities including one from ICICI Bank as well as Master Card from American City Bank which suggested that the accused was an adult inasmuch as for availing credit facility, a person must be eligible to enter into a contract whereas a minor cannot enter into a contract, therefore, any person who avails credit facility ought to be deemed an adult.

It appears that during pendency of the proceeding relating to the claim of juvenility set up by the opposite party No2, papers pertaining to bank account of the accused (Shivam) were called from the State Bank of India, which disclosed that in support of the bank account opening form there was a photocopy of a driving licence of Shivam @ Happy disclosing his date of birth as 10.07.1981. On the basis of the aforesaid driving license, the informant seriously contested the claim of juvenility raised by the accused (Shivam).

The court below in order to decide the claim of juvenility framed two points for consideration, namely, (a) whether Happy @ Shivam and Harsh are one and the same person or not?; and (b) whether Happy @ Shivam was born on 10.07.1989 or not and, if so, whether he was below the age of 18 years on the date of the incident or not?

To support the plea that Happy @ Shivam and Harsh are one and the same person, the informant placed much emphasis on the following facts: (a) that in the first remand-sheet, the name of accused (Shivam) was mentioned as Shivam @ Happy @ Harsh; (b) that in the charge-sheet also the name of Shivam @ Happy @ Harsh is mentioned; (c) that the bail applications were moved with all the three alias names and no where objection was raised with regards to the name of Shivam as Shivam @ Happy @ Harsh; and (d) that although a death certificate of Harsh has been brought on record but there was nothing to show that Harsh's birth was ever registered.

The court below inter alia placed reliance on the death certificate (paper no. 94A, Exhibit C-9), proved by C.W.7 (Ram Saran Lal), which indicated that Harsh son of Om Prakash Kateria died on 21.05.2000. The court below observed that mere absence of birth certificate of a person cannot go to prove that such person had not died or that he never existed. The court below further held that mere mention of a wrong alias name in the remand-sheet as well as charge-sheet would not go to show that Shivam @ Happy was also known as Harsh. The court below placed reliance on application (paper no. 10A/1 and 120A/3 which were dated 27.04.2007 and 30.04.2007) submitted by the informant to the Superintendent of Police where the accused was described as Shivam @ Happy. The court below also found that since there were separate educational records of Harsh and Shivam, therefore, it appeared that they were two different persons. The court below also placed reliance on a report submitted by the police being paper no. 132-A in which it was stated that in the family of Om Prakash Kateria and Chandramukhi Kateria, there were four daughters, namely, Km. Poonam, who died in the year 2000, Aarti, Dolly and Nidhi (who resided abroad) and, thereafter, there was one elder son Rahul, also known as Harsh, who is stated to have died in the year 2000, followed by Shivam @ Happy (the accused) and, thereafter, a son named Mohit. The court found that there was no documentary evidence to show that Happy @ Shivam @ Harsh are one and the same person. Accordingly, by placing reliance on the oral testimony of the father and mother of the accused as well as the documentary evidence, the court below came to a conclusion that Happy @ Shivam and Harsh were two different persons and that Harsh had died in the year 2000.

With regards to the age of Shivam @ Happy, the informant placed reliance on a medical report dated 27.11.2007 (paper no. 144-A/2) disclosing the age of the accused to be about 21 years. The informant also laid much emhasis on the fact that the accused had admittedly been using credit card facilities which suggested that he was an adult. The informant further placed reliance on an application moved by Chandramukhi Kateria, the mother of the accused-Shivam @ Happy, (paper no. 139-B) for the purpose of Ration facility in which the age of the accused was disclosed as 20 years. Reliance was also placed on driving license allegedly used by the accused to open account in the bank which disclosed his year of birth as 1981. Placing reliance on the aforesaid documents, the informant claimed that the claim of juvenility was based on false facts and, therefore, the same deserves to be rejected.

On the other hand, the accused (Shivam @ Happy) placed reliance on the entry in the high school pass certificate which disclosed his date of birth as 10.07.1989 as also on the birth certificate which was proved by C.W.8 (Shiv Ram Singh) and C.W.9 (Radhey Shyam Dohrey), both employees of Nagar Palika Parishad, Farrukhabad. The opinion of the medical report was challenged on the ground that the same was not proved in accordance with law and even the X-ray plate was not placed on record.

The court below discarded the entry of the age given in the application for the Ration Card on the ground that it did not disclose as to on what basis the said entry was made. The court below also discarded the claim that availing of credit facilities would conclusively prove that the person is an adult more so when there was no document to show that in the bank records, the accused was recorded as an adult. The court below though did not specifically discard the medical report but it did observe that the X-ray plate on the basis of which the medical report was prepared was not brought on record and it also noticed the submission made on behalf of the accused that in the medical report though fourteen teeth were shown in the upper as well as lower jaw but there was no mention with regards to the nature of the teeth present in the respective jaws. It also observed that, according to the medical jurisprudence of Modi, the fusion of the bones, mentioned in the report, may also indicate the age to be about 19 years and not 21 years as opined in the report. The Court below, however, placed reliance on the entry of date of birth in the high school certificate as also other documents which were duly proved by the evidence led before the Court. The Court, by observing that since primacy was to be given to the matriculation or equivalent certificate under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as 'Rules, 2007'), framed under the Act, 2000, declared the opposite party No.2 juvenile on the basis of his recorded date of birth 10.07.1989 which meant that on 11.04.2007 i.e. the date of the incident, the accused was about 17 years and 9 months old. While doing so, the court below placed reliance on the decision of the Apex Court in the case of Ashwini Kumar Saxena v. State of M.P. : 2012 (9) SCC 750.

SUBMISSIONS ON BEHALF OF REVISIONIST

The judgment and order passed by the court below has been assailed by Sri Prem Prakash Yadav, who appeared for the revisionist, on the following grounds:-

(a) Rules, 2007 were notified by the Central Government on 26.10.2007 whereas on the date of occurrence i.e. 11.04.2007, the rule framed by the State Government under Section 68 of the Act, 2000 namely U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004 (hereinafter referred to as 'Rules, 2004), were in force and, therefore, the claim of juvenility ought to have been decided in terms of the Rules, 2004 and not the Rules, 2007. More so, because the claim of juvenility was set up on 16.10.2007 i.e. before the notification of Rules, 2007. It was submitted that under the Rule, 2004 the Board while determining the age of a juvenile in conflict with law, by virtue of Rule 22 (5) of the Rules, 2004, was required to either obtain : -(i) a birth certificate given by a Corporation or a Municipal Authority; or (ii) a date of birth certificate from the school first attended; or (iii) matriculation or equivalent certificates, if available; and (iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding his age. The Rule 22(5) further provided that while passing orders in such cases the Board 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.

It was submitted that under the Rules, 2004, the enquiry to determine the true age of the claimant had a wider scope and it was not limited to finding out the date of birth recorded in the matriculation or equivalent certificate. It was also submitted that Central Rules framed under Section 68 of the Act, 2000 are 'Model Rules' and they have no binding effect as has been held by the Apex Court in the case of Pratap Singh v. State of Jharkhand and another : (2005) 3 SCC 551. It was submitted that primacy, therefore, cannot be given to the high school certificate, but the court below wrongly placed blind reliance on the date of birth entered in the high school certificate and did not take a conspectus of the entire evidence to determine the true age of the claimant as such its order is vitiated in law.

(b) That the age determination enquiry under Section 7 A as well as section 49 of the Act, 2000 is to be conducted in accordance with the provisions of the Code of Criminal Procedure by virtue of section 54(1) of the Act, 2000, therefore, the statutory power of taking evidence cannot be controlled or whittled down by any rule including Rule 12(3) of the Rules, 2007 or Rule 22 (5) of the State Rules, 2004, inasmuch as these rules are by way of subordinate legislation and they cannot take away the power of the Board/Court conferred upon them by the statute to determine the true age of the claimant.

It was submitted that the word 'due enquiry' finds mention in section 49(1) of the Act, 2000 whereas the word 'true age' finds mention in sub-section (2) of section 49 of the Act, 2000 signifying that there has to be an enquiry to determine the 'true age' of the claimant and, therefore, while holding such inquiry the Board/Court is not bound by the dictates of the rules which only act as a guiding force and cannot limit the discretion of the Court. The learned counsel for the revisionist also questioned the correctness of the decision of the apex court in the case of Ashwani Kumar Saxena (supra) on the ground that it fails to consider the provisions of sections 49 and 54 of the Act, 2000, which provide that the inquiry is to be conducted in accordance with the procedure provided by the Code of Criminal Procedure with an object to determine the true age. It was submitted that the court below while dealing with the claim of juvenility found itself bound by the Rules, 2007 so as to accept the claim on the basis of the date of birth entered in the High Scool Certificate even though it was not proved on record as to on what basis the date of birth was recorded in the educational records and in the process it gave no importance to other facts and circumstances proved on record as also medical evidence which negated the claim of juvenility therefore its order stands vitiated in law.

(c) That the plea of juvenility is to be set up and proved like a plea of alibi as such the burden is squarely on the claimant and, therefore, any weakness in the evidence led by the claimant would defeat his claim. Keeping in mind the above principle, if the evidence of the claimant is analysed the Court would come to a conclusion that the claimant failed to establish his claim of juvenility. In support of this plea para 32 of the apex court judgment in Om Prakash v. State of Rajasthan (2012) 5 SCC 201 was cited. To develop the aforesaid submission, it was submitted that the entry of the date of birth of the claimant recorded as 10.07.1989 in the school register of Swami Atmadev Gopalanand Intercollege, Ugarpur, Farrukhabad, where the opposite party No.2 was allegedly admitted in Class I and pursued his study up to Class VIII, was not proved in accordance with the law inasmuch as the entry is stated to have been recorded by one Kithori Lal, who was Daftari i.e. a class IV employee in the school. Whether such a class IV employee could enter the date of birth in official records as also whether he could be said to be authorised to make such entry, were pertinent questions of which there was no answer in the evidence. It was further submitted that even otherwise, the said entry could not be given much credence inasmuch as the mother of the claimant, namely, Smt. Chandramukhi Katheria was a manager of that school. It has been submitted that for an entry made in the scholar register to have evidentiary value, it must be proved that the same was entered by a person authorised to make such entry and since in the instant case from the testimony of Mahendra Pal Singh (C.W.2), who was a clerk of Swami Atmadev Gopalanand Intercollege, Ugarpur, Farrukhabad, it becomes clear that the person who made the entry of date of birth was a Daftari of the school, such entry was not at all reliable to assess the correct date of birth of the claimant. It has been submitted that for an entry to become admissible in evidence under Section 35 of the Evidence Act, the entry must be in any public or other official book, register or record or an electronic record and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by law of the country under which such book, register, or record or an electronic record is kept. It has been submitted that since the entry was not made by any person in the discharge of his official duty, such entry was not admissible under Section 35 of the Indian Evidence Act. It was submitted that although the high school Gazette was produced but the original of the high school certificate was not brought on record and as such the date of birth entry in the high school certificate was not admissible.

(d) That there were documentary evidence on record to show that on the date of the incident the claimant was an adult which fact was borne out from the entry in the motor driving licence which disclosed the date of birth of the claimant as 10.07.1981 and as the said driving licence was used as an identity for opening savings bank account in the name of the claimant in State Bank of India, Fatehgarh, the entry made therein bound the claimant as an admission of fact. Further, in the application given for issue of ration card, the age of the claimant was declared to be about 20 years as on 24.03.2006. Likewise, the claimant had been availing credit facility from various banks, therefore, it could be presumed that he was an adult inasmuch as a minor is incapable of entering into a contract by virtue of the provisions of section 26 of the Negotiable Instruments Act. In support of this submission reliance was placed on a decision of the Apex Court in the case of Om Prakash @ Raja v. State of Uttaranchal: (2003) 1 SCC 648, para 12 of the report, where the apex court affirmed the reasoning of the high court that since the person had an account in the bank and was also issued a pass book therefore it could be presumed that he was an adult.

(e) That it was established on record that the claimant (Shivam @ Happy) had an alias name Harsh inasmuch as in the remand-sheet the claimant's name was shown as Shivam @ Happy @ Harsh and this fact was not challenged by the claimant in his bail application. It has been submitted that it was duly proved on record by the testimony of C.W.1 (Sibbi George) that Harsh son of Om Prakash Katheria had taken admission in St. Anthony Senior Secondary School, Fatehgarh where his date of birth was recorded as 02.01.1986. It was submitted that when the father of the claimant found that his son (the claimant) could be bound by the date of birth of Harsh recorded in the scholar register, a false story was set up to show that Harsh was another son in the family, who died in the year 2000. It has been submitted that to show that Harsh died in the year 2000, a fictitious and fabricated death certificate dated 19.05.2001 was produced which indicated that it was in a format prescribed by 2003 rules meaning thereby that the death certificate could not have been issued in the year 2001 in the Form which itelf came into existence in the year 2003. It was also submitted that the Court had directed the police to enquire with regards to the family of the claimant and in the said enquiry although the name of Rahul @ Harsh is shown to be as one of the son of the parents of the claimant apart from the claimant himself but in that report itself it has been stated that from various sources it was learnt that Happy @ Shivam is also known as Harsh. It was thus claimed that since the identity of the claimant was in dispute as to whether he was Happy @ Shivam @ Harsh or he was only Happy @ Shivam, particularly when there were two dates of birth available on record i.e. for Shivam it was 10.07.1989 and for Harsh it was 02.12.1986, it was a fit case where the date of birth entries ought to have been discarded and reliance ought to have been placed on medical evidence which had disclosed the claimant to be about 21 years at the time when the medical examination was carried out i.e. in the year 2007. Meaning thereby that by no stretch of imagination the claimant was a minor on the date of the incident.

(f) Lastly, it has been submitted that the order impugned is in defiance of the direction given by this Court vide order dated 22.11.2010 passed in Crl. Revision No. 595 of 2008 inasmuch as the issues that were decided by the court below were not dealt with in the manner in which they ought to have been dealt with keeping in mind the observations made by this Court in its remand order dated 22.11.2010. It has been submitted that this Court, in its remand order dated 22.11.2010, had required the court below to take into consideration the opinion of the Medical Board which was the primary evidence for reaching to a conclusion about the age of the accused. It has been submitted that instead of giving weight to the opinion of the Medical Board, undue importance has been given to the entry of date of birth in the high school certificate.

In pith and substance, the submission of the learned counsel for the revisionist was that the determination of age carried out by the court below was in a mechanical manner by giving undue weightage to the date of birth entered in the High School Certificate when such entry was not reliable for various reasons detailed above.

It was also strenuously urged that since the claimant had taken the benefit of a driving licence as also of a credit card facility, he was estopped from claiming himself to be a minor.

SUBMISSIONS ON BEHALF OF OPPOSITE PARTIES 2 & 3

In response to the submissions of the learned counsel for the revisionist, Sri Vijay Bahadur Shivhare, who appeared on behalf of the opposite party Nos. 2 and 3, submitted that the high school pass certificate, the passport of the claimant and all other documents on which reliance was placed to claim juvenility were documents in existence since much prior to the date of the incident in respect of which juvenility was claimed, and in all these documents the date of birth of the claimant was shown as 10.07.1989. Therefore, any suggestion that entry made in these certificates were forged, fabricated or manipulated is completely baseless. It was submitted that in none of the documentary evidences including the scholar register, certificates, etc., except the police remand-sheet, the name Shivam is shown with an alias name of Harsh. It was submitted that nowhere Harsh is disclosed as alias name of Shivam, likewise, nowhere Shivam is reflected as alias of Harsh in the records. It was submitted that there was no occasion to have two different names for one person particularly when those entries were made much prior to the date of the incident. It was submitted that existence of two different persons named Harsh and Shivam was duly established by the testimony of the parents, who alone are the best person to disclose that Harsh and Shivam were two different persons. It was submitted that mere entry in the remand-sheet disclosing the name of Happy @ Shivam @ Harsh would not mean that the person who has been remanded to judicial custody has an alias name of Harsh. It was submitted that in the bail application, it was nowhere stated that Happy @ Shivam was also known as Harsh. It was submitted that the bail application only mentions that in the police record the name of Happy @ Shivam @ Harsh is mentioned which does not mean that the claimant's parents had admitted the position that Happy @ Shivam was the alias name of Harsh. It was submitted that availing of credit card facility would not make any difference inasmuch as in none of the credit cards or the bank accounts or the bank documents, the date of birth of the claimant was shown to be such which could have made him an adult on the date of the incident. It was also submitted that the existence of the motor driving licence in the bank records disclosing the date of birth as 10.07.1981 would not mean that the applicant was born on 10.07.1981 inasmuch as the bank certificate clearly indicated that in the bank account the date of birth of the applicant was recorded as 10.07.1989.It was submitted that the driving lincence was fabricated and its existence was never put to any of the claimant's witnesses. Even otherwise, it was nobody's case that the applicant was born on 10.07.1981. Even the medical evidence does not disclose that the applicant was born in the year 1981 as by that standard the applicant would have been found to be aged about 26 to 27 years at the time of medical examination. It was submitted that no reliance can be placed on the driving licence entry inasmuch as it was not proved on record. It was submitted that the high school entry is to be given primacy in view of the decision of the Apex Court in the case of Ashwini Kumar Saxena (supra) and the said entry was proved by production of the Gazette and there was no challenge that the applicant had not appeared in the high school examination or that he obtained high school certificate through an imposter or that the certificate was fabricated. It was submitted that the court below was legally justified in declaring the applicant juvenile. Lastly, it was submitted that since the claim regarding juvenility is essentially a question of fact therefore the finding returned on such question can only be disturbed if such finding has been arrived in violation of the settled legal principles and not otherwise. It was submitted that since the court below has recorded the finding after proper consideration of the material brought on record, the said finding cannot be interfered with in exercise of revisional power, therefore, the revision deserves to the dismissed.

It was also submitted that the court below has not violated any of the directions issued by this Court in its remand order inasmuch as this Court had specifically mandated that the court below would decide the case in accordance with law and would not be influenced by any observation made in the order of remand. It was submitted that since the court below has followed the law laid down by the Apex Court in the case of Ashwini Kumar Saxena (supra), the view taken by the court below cannot be said to be in violation of the law.

DISCUSSION

Having noticed the facts of the case and the rival submissions of the learned counsel for the parties, before proceeding to deal with the points raised, it would be useful to first examine the manner in which enquiry with regards to the claim of juvenility is to be conducted. Prior to insertion of Section 7-A in the Act, 2000, by Act No.33 of 2006, the statutory provisions governing the mode and manner of the inquiry in respect of claim of juvenility were contained in Sections 49 and 54 of the Act, 2000, which read as under:

"49. Presumption and determination of age.--(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or a child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be.

(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or a child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person."

"54. Procedure in inquiries, appeals and revision proceedings.--(1) Save as otherwise expressly provided by this Act, a competent authority while holding any inquiry under any of the provisions of this Act, shall follow such procedure as may be prescribed and subject thereto, shall follow, as far as may be, the procedure laid down in the Code of Criminal Procedure, 1973 (2 of 1974) for trials in summons cases.

(2) Save as otherwise expressly provided by or under this Act, the procedure to be followed in hearing appeals or revision proceedings under this Act shall be, as far as practicable, in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974)."

Competent Authority, as it occurs in Section 49 and 54 of the Act, 2000, has been defined in Section 2(g), as follows: "competent authority means in relation to children in need of care and protection a Committee and in relation to juveniles in conflict with law a Board". Section 6 of the Act, 2000 provides that: "(1) Where a Board has been constituted for any district, such Board shall, notwithstanding anything contained in any law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law. (2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise."

By Act No.33 of 2006, Section 7-A was inserted in the Act, 2000, which reads as follows:

"7-A. Procedure to be followed when claim of juvenility is raised before any court.--(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the Rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders, and the sentence if any, passed by a court shall be deemed to have no effect."

By insertion of section 7-A, the legislative intent was clear inasmuch as the claim of juvenility could be raised before any court and at any stage, and the court was conferred power to make an enquiry by taking such evidence as may be necessary to determine the age of such person with a rider that such claim shall be determined in terms of the provisions contained in the Act and the Rules made thereunder. To confer power to the Central Govt. to frame model rules to carry out the purposes of the Act, a proviso to sub section (1) of section 68 was inserted by Act No.33 of 2006. The amended sub section (1) to section 68 along with its proviso reads as under:

68. Power to make rules.--(1) The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the State Government may make rules under this section, and where any such model rules have been framed in respect of any such matter, they shall apply to the State until the rules in respect of the matter is made by the State Government and while making such rules, so far as practicable, they conform to such model rules.

Prior to the insertion of the proviso to sub section (1) of section 68 as well as sub section (3) of section 68 by Act No.33 of 2006, there was no provision enabling the Central Govt. to frame model rules in respect of all or any of the matters with respect to which the State Govt. could make rules under the said section. As a result by taking the aid of section 70, which enabled the Central Govt. to remove difficulties, Model Rules were framed in the year 2000 the validity of which came for consideration before a 5 judges Bench of the Apex Court in the case of Pratap Singh v. State of Jharkhand: (2005) 3 SCC 551. Hon'ble S. B. Sinha, J., one of the members of that Bench, in a separate judgment, partly dissenting from the majority view, discarded the Model Rules by holding that it had no statutory backing and held that the court thus would be entitled to apply the ordinary rules of evidence for the purpose of determining the age of the juvenile taking into consideration the provisions of section 35 of the Indian Evidence Act. The relevant observations are contained in paragraphs 107 to 112 of the report, which reads as under:

"107. We, however, do not agree that the Model Rules have been framed in terms of the provisions of the Act so as to attract the principles that rules validly framed are to be treated as part of the Act. It is one thing that the rules validly framed are to be treated as part of the Act as has been held in Chief Forest Conservator (Wildlife) v. Nisar Khan and National Insurance Co. Ltd. v. Swaran Singh but the said principle has no application herein as in terms of the provisions of the said Act, the Central Government does not have any authority to make any rules. In the absence of any rule-making power it cannot refer to the omnibus clause of power to remove difficulty inasmuch as it has not been stated that framing of any model rule is permissible if a difficulty arises in giving effect to the provision of the Act. The Central Government is a statutory functionary. Its functions are circumscribed by Section 70 of the Act only. It has not been authorised to make any rule. Such rule-making power has been entrusted only to the State. The Central Government has, thus, no say in the matter nor can it exercise such power by resorting to its power "to remove difficulties". Rule-making power is a separate power which has got nothing to do with the power to remove difficulty. By reason of the power to remove difficulty or doubt, the Central Government has not been conferred with any legislative power. The power to remove doubt or difficulty although is a statutory power but the same is not akin to a legislative power and, thus, thereby the provisions of the Act cannot be altered. [See Jalan Trading Co. (P) Ltd. v. Mill Mazdoor Union]

108. The age of the delinquent juvenile, therefore, cannot be determined in terms of Model Rule 62. Any law mandating the court to take into consideration certain documents over others in determining an issue, must be provided for only by law. Only a validly made law can take away the power of the court to appreciate evidence for the purpose of determination of such a question in the light of Section 35 of the Indian Evidence Act. It cannot be done by the Central Government in exercise of the executive power (See Union of India v. Naveen Jindal and State of U.P. v. Johri Mal.)

109. In Birad Mal Singhvi v. Anand Purohit this Court held:

"To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."

(emphasis supplied)

110. In Sushil Kumar v. Rakesh Kumar this Court as regards determination of age of a candidate in terms of Section 36(2) of the Representation of the People Act, 1951 observed:

"32. The age of a person in an election petition has to be determined not only on the basis of the materials placed on record but also upon taking into consideration the circumstances attending thereto. The initial burden to prove the allegations made in the election petition although was upon the election petitioner but for proving the facts which were within the special knowledge of the respondent, the burden was upon him in terms of Section 106 of the Evidence Act. It is also trite that when both parties have adduced evidence, the question of the onus of proof becomes academic [see Union of India v. Sugauli Sugar Works (P) Ltd. and Cox and Kings (Agents) Ltd. v. Workmen]. Furthermore, an admission on the part of a party to the lis shall be binding on him and in any event a presumption must be made that the same is taken to be established."

This Court therein followed, inter alia, Birad Mal Singhvi v. Anand Purohit and several other decisions.

111. The Court, therefore, must determine the age of the appellant herein keeping in view our aforementioned findings that the relevant date for reckoning the age of the juvenile would be the date of occurrence and not the date on which he was produced before the Board.

112. The upshot of the aforementioned discussions is:

(i) In terms of the 1986 Act, the age of the offender must be reckoned from the date when the alleged offence was committed.

(ii) The 2000 Act will have a limited application in the cases pending under the 1986 Act.

(iii) The Model Rules framed by the Central Government having no legal force cannot be given effect to.

(iv) The court, thus, would be entitled to apply the ordinary rules of evidence for the purpose of determining the age of the juvenile taking into consideration the provisions of Section 35 of the Indian Evidence Act."

It appears that the amendment brought by Act No.33 of 2006 was to obviate the outcome of the decision of the Apex Court in the case of Pratap Singh (supra), as has been observed in various decisions of the Apex Court (See Hari Ram v. State of Rajasthan:(2009) 13 SCC 211; Daya Nand v. State of Haryana: (2011) 2 SCC 224), so as to empower the Central Govt. to make rules. In fact, after the amendment, the Central Govt. made and notified the Rules, 2007, vide notification dated 26.10.2007, and those Rules came into effect from the date of the publication of notification in the Gazette of India, (Extra.), Part II, Section 3(i), dt. 26.10.2007.

The relevant provisions governing the procedure to be followed in determination of age of a juvenile in conflict with law is contained in Rule 12, which provides as follows:

"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 7-A, 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."

Rule 96 of the Rules, 2007 provides that until the new rules conforming to these rules are framed by the State Govt. concerned under Section 68 of the Act, 2000, the Rules, 2007 shall mutatis mutandis apply in that State.

Rule 97 of the Rules, 2007 provides that all pending cases which have not received a finality shall be dealt with and disposed of in terms of the provisions of the Act and the rules made thereunder. For convenience Rule 97 of the Rules, 2007 is being extracted herein below:

"97. Pending Cases.--(1) No juvenile in conflict with law or a child shall be denied the benefits of the Act and the rules made thereunder.

(2) All pending cases which have not received a finality shall be dealt with and disposed of in terms of the provisions of the Act and the rules made thereunder.

(3) Any juvenile in conflict with law, or a child shall be given the benefits under sub-rule (1) of this rule, and it is hereby clarified that such benefits shall be made available to all those accused who were juvenile or a child at the time of commission of an offence, even if they cease to be a juvenile or a child during the pendency of any inquiry or trial.

(4) While computing the period of detention or stay or sentence of a juvenile in conflict with law or of a child, all such period which the juvenile or the child has already spent in custody, detention, stay or sentence of imprisonment shall be counted as a part of the period of stay or detention or sentence of imprisonment contained in the final order of the court or the Board."

It is thus clear that Rule 12 of Rules, 2007, would become applicable to the age dermination enquiry with regards to the juvenility claim of the opposite party no.2 inasmuch as on the date of notification of Rules, 2007, the enquiry relating to his age had not attained finality. The argument of the learned counsel for the applicant that since the incident was of the date prior to the notification of the Rules, 2007 and the claim had also been set up prior to notification of the Rules, 2007, therefore, those Rules would not be applicable and instead inquiry ought to be conducted under the State Rules, 2004, is worthy of rejection in view of Rules 96 and 97 of the Rules, 2007.

The question that now crops up for consideration is as to what is the scope of the inquiry in a case where a claimant sets up a matriculation or high school pass certificate to disclose his date of birth.

In this regard it would be useful to refer to the decision of the Apex Court in the case of Ashwani Kumar Saxena (supra). In this case, the apex court, after considering various judgments as well as the provisions of the Act, 2000 as also the Rules, 2007, in paragraphs 23 to 32 of the report, observed as follows:

"23. We may in the light of the judgments referred to hereinbefore and the principles laid down therein while examining the scope of Section 7-A of the Act, Rule 12 of the 2007 Rules and Section 49 of the Act examine the scope and ambit of inquiry expected of a court, the Juvenile Justice Board and the Committee while dealing with a claim of juvenility.

24. We may, however, point out that none of the abovementioned judgments referred to earlier had examined the scope, meaning and content of Section 7-A of the Act, Rule 12 of the 2007 Rules and the nature of the inquiry contemplated in those provisions. For easy reference, let us extract Section 7-A of the Act and Rule 12 of the 2007 Rules:

"7-A. Procedure to be followed when claim of juvenility is raised before any court.--Already Quoted above

"12. Procedure to be followed in determination of age.--Already Quoted above"

25. Section 7-A, obliges the court only to make an inquiry, not an investigation or a trial, an inquiry not under the Code of Criminal Procedure, but under the JJ Act. The criminal courts, Juvenile Justice Board, committees, etc. we have noticed, proceed as if they are conducting a trial, inquiry, enquiry or investigation as per the Code. The statute requires the court or the Board only to make an "inquiry" and in what manner that inquiry has to be conducted is provided in the JJ Rules. Few of the expressions used in Section 7-A and Rule 12 are of considerable importance and a reference to them is necessary to understand the true scope and content of those provisions. Section 7-A has used the expressions "court shall make an inquiry", "take such evidence as may be necessary" and "but not an affidavit". The Court or the Board can accept as evidence something more than an affidavit i.e. the Court or the Board can accept documents, certificates, etc. as evidence, need not be oral evidence.

26. Rule 12 which has to be read along with Section 7-A has also used certain expressions which are also to be borne in mind. Rule 12(2) uses the expression "prima facie" and "on the basis of physical appearance" or "documents, if available". Rule 12(3) uses the expression "by seeking evidence by obtaining". These expressions in our view re-emphasise the fact that what is contemplated in Section 7-A and Rule 12 is only an inquiry. Further, the age determination inquiry has to be completed and age be determined within thirty days from the date of making the application; which is also an indication of the manner in which the inquiry has to be conducted and completed. The word "inquiry" has not been defined under the JJ Act, but Section 2(y) of the JJ Act says that all words and expressions used and not defined in the JJ Act but defined in the Code of Criminal Procedure, 1973 (2 of 1974), shall have the meanings respectively assigned to them in that Code.

27. 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) CrPC reads as follows:

"2. (g) ''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) CrPC reads as follows:

"2. (h) ''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 authorised by a Magistrate in this behalf;"

The expression "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.

28. 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 to some offences committed. We find in very many cases that the court/the Juvenile Justice 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 JJ Act, following the procedure laid down under Rule 12 and not following the procedure laid down under the Code.

29. The Code lays down the procedure to be followed in every investigation, inquiry or trial for every offence, whether under the 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 7-A 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 the inquiry.

30. Consequently, the procedure to be followed under the JJ 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 7-A of the Act. In 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 7-A read with Rule 12.

31. We also remind all courts/Juvenile Justice Boards and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate, etc. mentioned in Rules 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.

32. "Age determination inquiry" contemplated under Section 7-A of the Act read with 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 needs to 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 needs to 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 abovementioned 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.

(Emphasis Supplied)

After observing as above, the apex court deprecated the practice of the courts in making a roving enquiry with regards to the correctness of the date of birth entered in matriculation or equivalent certificates or other documents unless those documents or certificates were fabricated or manipulated. The relevant observations of the apex court are contained in paragraphs 34 and 35 of the report, which are being reproduced herein below:

"34. Age determination inquiry contemplated under the JJ Act and the 2007 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, Juvenile Justice Board or a committee functioning under the JJ 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 Juvenile Justice Board or the committee need to go for medical report for age determination.

35. We have come across several cases in which the 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."

(Emphasis Supplied)

The judgment in Ashwani Kumar Saxena's case (supra) has been consistently followed by the apex court in Jodhbir Singh v. State of Punjab: (2012) 13 SCC 591; Ranjeet Goswami v. State Of Jharkhand: (2014) 1 SCC 588; and Kulai Ibrahim @ Ibrahim v. State represented by the Inspector of Police, B-I, Bazar Police Station, Coimbatore: (2014) 12 SCC 332.

The law that emerges from the aforesaid decision of the Apex Court is that where there are certificates available, as contemplated by Rule 12 (3) (a) (i) of the Rules, 2007, the date of birth entered in such certificate is to be accepted for determining the age of the juvenile in conflict with law and the other evidences including opinion of the medical board would not be required unless it is shown that those documents or certificates are fabricated or manipulated. The age determination inquiry is to be conducted as per the Rules, 2007 and not as in the case of a trial.

At this stage it would be useful to refer to the contention of the learned counsel for revisionist assailing the correctness of the view taken by the apex court in Ashwani Kumar Saxena's case. Sri Prem Prakash Yadav submitted that Ashwani Kumar Saxena's case does not consider the true import of the provisions of Sections 49 and 54 of the Act, 2000. He submitted that sub section (1) of section 49 speaks of a due enquiry as to the age of the claimant whereas sub section (2) thereof says that the age so determined would be deemed to be the true age. Meaning thereby that an enquiry has to be to determine the true age and not merely to ascertain the certificate age. He further submitted that although sub section (1) of section 54 provides that the inquiry is to be conducted as per the procedure prescribed but there is nothing there to suggest that the age has to be determined as per the prescribed procedure. Rather it provides that procedure laid down in Code of Criminal Procedure for trials in summons case shall be followed. It has thus been urged that the view taken in Ashwani Kumar Saxena's case that the entry in matriculation or equivalent certificate has to be accepted as gospel truth is not the correct view.

The aforesaid submission of the learned counsel for the revisionist cannot be accepted inasmuch as by insertion of Section 7-A in the Act, 2000, the legislative intent becomes clear by a bare reading of its proviso that the claim of juvenility shall be dermined in terms of the provisions contained in that Act and the rules made thereunder. Therefore, section 7-A, being a special provision governing determination of juvenility claim as compared to sections 49 and 54 which relate to inquiries under the Act, 2000, would prevail.

Sri Prem Prakash contended that the judgment of the apex court in Ashwani Kumar Saxena's case does not lay down the correct law inasmuch as it takes away the discretion of the court to ascertain the true age of the juvenile in conflict with law, which is the object of the law. He submitted that provisions of Rule 12 (3) of the Rules, 2007 provide only a guiding principle to be followed while determining the age of the juvenile in conflict with law but they, in no way, take away the power of the Court to consider various evidences, facts and circumstances, so as to determine the true age of the juvenile in conflict with law. He placed reliance on observations made by the apex court in paragraph 48 of the judgment in Abuzar Hossain @ Gulam Hossain v. State of West Bengal : (2012) 10 SCC 489 where, in paragraph 48 of the report, it was observed as follows:

"48. If one were to adopt a wooden approach, one could say nothing short of a certificate, whether from the school or a municipal authority would satisfy the court's conscience, before directing an enquiry. But, then directing an enquiry is not the same thing as declaring the accused to be a juvenile. The standard of proof required is different for both. In the former, the court simply records a prima facie conclusion. In the latter, the court makes a declaration on evidence, that it scrutinises and accepts only if it is worthy of such acceptance. The approach at the stage of directing the enquiry has of necessity to be more liberal, lest, there is avoidable miscarriage of justice. Suffice it to say that while affidavits may not be generally accepted as a good enough basis for directing an enquiry, that they are not so accepted is not a rule of law but a rule of prudence. The Court would, therefore, in each case weigh the relevant factors, insist upon filing of better affidavits if the need so arises, and even direct, any additional information considered relevant including the information regarding the age of the parents, the age of siblings and the like, to be furnished before it decides on a case to case basis whether or not an enquiry under Section 7-A ought to be conducted. It will eventually depend on how the court evaluates such material for a prima facie conclusion that the court may or may not direct an enquiry."

Relying on the observations extracted herein above, the learned counsel for the revisionist contended that the certificates mentioned in Rule 12 (3) of the Rules, 2007 are to be used only for the purpose of drawing a prima facie satisfaction whether a full fledged inquiry is required under section 7-A of the Act, 2000 or not. But so far as actual determination of age is concerned the same is to be done on the basis of the weight of entire evidence available on record. It was submitted that the decision of a larger bench of the apex court in Abuzar Hossain's case would prevail and therefore blind reliance placed upon the decision of the apex court in Ashwani Kumar's case has vitiated the judgment and order of the court below.

I have carefully considered the judgment of the Apex Court in Abuzar Hossain' case (supra). In that case the question involved was as to when should a claim of juvenility be recognized and sent for determination when it is raised for the first time in appeal or before the apex court or raised in trial and appeal but not pressed and then pressed for the first time before the apex court or even raised for the first time after final disposal of the case. In that context the apex court had observed that if any of those certificates are produced a prima facie case for holding a full fledged enquiry to determine the age would be made out even though juvenility plea is raised after final disposal of the case or for the first time in appeal or before the apex court. The context in which the apex court gave its judgment in Abuzar Hossain's case becomes clear from paragraph 39 of the judgment (as per the report), which is being reproduced herein below:

"39. Now, we summarise the position which is as under:

39.1. A claim of juvenility may be raised at any stage even after the final disposal of the case. It may be raised for the first time before this Court as well after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in the appeal court.

39.2. For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility.

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 7-A and order an enquiry for determination of the age of the delinquent.

39.4. An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of the age of the delinquent.

39.5. The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hypertechnical approach and the persons who are entitled to get benefits of the 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.

39.6. Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at the threshold whenever raised."

(Emphasis Supplied)

A careful perusal of the decision of the apex court in Abuzar Hossain's case (supra), particularly the context in which it was made, would go to show that it no where dilutes the view taken by it in Ashwani Kumar Saxena's case. Rather, a perusal of the observations made in paragraph 39.5 of the judgment in Abuzar Hossain's case confirms the view taken by the apex court in Ashwani Kumar Saxena's case that there should not be a roving inquiry with regard to the correctness of the entry made in the certificates.

In view of the discussion made above, neither the law laid down in Ashwani Kumar Saxena's case is contrary to the larger bench decision in Abuzar Hossain's case nor it has been diluted in any way. Therefore the entry in a matriculation or any equivalent certificate, in view of the law as it stands, can be discarded only if it can be shown that the certificate is fabricated or manipulated.

A document can be said to be fabricated if it has been forged. Forgery/ fabrication is easy to establish by verification from original records. But, whether a document/ certificate has been manipulated or not, the Court has to ascertain on the strength of the evidence brought on record. Manipulation may be of different types. There may be manipulation in the entry of relevant data. Like say the date of birth in the original records may be different than what is reflected in the certificate. Manipulation may also be by way of unauthorised alterations of relevant data in the certificate. There may also be a case where, by manipulation, a person may be able to obtain a certificate or degree even though he may have never been to any school or college. There may also be a case where the certificate or degree may have been obtained with the help of an impostor. There may also be a situation where there may be multiple matriculation or equivalent certificates of a same person, which may reflect manipulation. These are few illustrations of manipulations. But where manipulation is established, the Court can always use its discretion to discard the certificate and take other permissible evidences into consideration for ascertaining the age of the claimant. There may also be instances where matriculation certificate may have been obtained after the incident in connection with which juvenility is claimed. In such cases also, the Court has to be circumspect and must satisfy itself that the certificate has not been obtained by manipulation. But to show that a certificate/ document has been obtained by manipulation, the burden is on the person who alleges so. To prove that the certificate was obtained by manipulation cogent evidence must be led to demonstrate such manipulation. In a case where by cogent evidence the Court is apprised of such manipulation, the Court can always enter into the correctness of the entries by taking such evidence as it may deem necessary. But where there is no challenge with regards to the authenticity of the matriculation or equivalent certificate produced by the claimant, or where there is no stand that the claimant had obtained the certificate through manipulation, the correctness of the date of birth entered in such certificate cannot be tested in an age determination inquiry of a juvenile in view of the provisions of Section 7-A of the Act, 2000 read with Rule 12 (3) of the Rules, 2007 as has been held by the Apex Court in Ashwani Kumar Saxena's case (supra).

In the instant case, the fact that the claimant had passed High School was duly proved by production of the relevant gazette scroll by the person in possession of the record, which disclosed the date of birth of the claimant as 10.07.1989. There is no challenge to the authenticity of the document. No evidence has been led to demonstrate that the claimant never appeared in the high school examination or that he never studied in any school or for that matter he is completely illiterate. There is also no evidence to show that the claimant gave multiple matriculate or equivalent examinations, with different dates of birth. No doubt, an effort was made to suggest that the claimant was nobody else than Harsh whose year of birth was recorded in school records as 1986. But there is no positive evidence to suggest that in any official school record other than the police record, which were all prepared after the incident, Shivam was stated to be an alias of Harsh or vice versa. Further, the parents had come in evidence and had disclosed that they had another son by the name of Harsh of which there was no evidence in rebuttal. It is not a case where any positive evidence may have been led by way of examination of some relative or neighbour of the claimant to suggest that there never existed any person by the name of Harsh other than Shivam himself. The reference to police report that from sources it was learnt that Shivam is also known as Happy @ Harsh, does not serve the cause much, inasmuch as the sources from where such information was got have not been disclosed. More so, the police report is ambivalent as it also discloses that there was an elder son named Rahul who was also known as Harsh. Therefore, even if there may be some discrepancy in the death certificate of Harsh that by itself would not be sufficient for the Court to conclude that Shivam is nobody else than Harsh.

Further, the production of driving license by the State Bank of India along with account opening form of Shivam does not cut much ice inasmuch as in the certificate issued by the Banker the date of birth of Shivam in the bank account is shown to be 10.7.1989 whereas the driving license discloses 1981 as the year of birth, which is nobody's case.

Heavy reliance was placed on use of credit cards by the claimant so as to suggest that he was an adult inasmuch as credit cards could never be issued in favour of a minor. But no effort was made to summon the records of the concerned Banks to demonstrate that there the claimant was shown as an adult. The reliance placed on the judgment of the apex court in the case of Om Prakash @ Raja v. State of Uttaranchal: (2003) 1 SCC 648 so as to contend that use of banking facility by the claimant, by itself, would indicate that he is an adult is not applicable to the facts of the instant case inasmuch as in Om Prakash's case (supra), the claimant had furnished no proof of age and, in fact, in his statement recorded under section 313 CrPC had disclosed his age to be 20 years as would be clear from paragraph 12 of the report.

So far as medical evidence is concerned that was open to be considered only in a case if the matriculation or equivalent certificate had not been there or had been discarded as fabricated or manipulated.

So far as the contention that the court below ignored the direction of this Court to consider medical evidence, which was the primary evidence, suffice it to say that this court in its order of remand had clearly mandated the court below to consider the claim in accordance with law. On the date of passing the remand order, the apex court's decision in the case of Ashwani Kumar Saxena (supra) had not been delivered whereas on the date of decision by the court below, pursuant to remand, the decision of Ashwani Kumar Saxena squarely covered the field, therefore, the decision of the court below cannot be faulted on that ground.

There is another aspect of the matter, which is, as to why there would be manipulation in the date of birth documents on the part of the claimant inasmuch as all his documents i.e. High School Certificate (2004), Intermediate Pass Certificate (2006) and even the Passport (2001) had been in existence since prior to the date of the incident, which disclosed his date of birth as 10.7.1989. Therefore, even if in some application, like say an application to the Ration Card Officer, a casual reference is made by one of the parents that Shivam is aged about 20 years, it would not wipe off the entries with respect to his date of birth in earlier records.

The contention that no evidence was led to show that the entry in scholar register was made by the officer authorised so as to conform with the provisions of Section 35 of the Evidence Act, cannot convince the Court to discard the date of birth entered in the high school certificate in view of the decision of the apex Court in Ashwani Kumar Saxena's case (supra), particularly when it was proved by production of relevant record and there was no evidence led to show that the documents were fabricated or manipulated.

Under the circumstances, this Court is of the view that the order of the court below does not suffer from any legal infirmity, which may call for interference in revisional jurisdiction. The revision is therefore dismissed. There is no order as to costs. The record of the court below pertaining to claim of juvenility shall be sent back forthwith.

Order Date:- 22.05.2015

Sunil Kr Tiwari