Meghraj Sharma vs State Of U.P. And Anr.
2021 Latest Caselaw 7916 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment reserved on 17.6.2021.
 
Judgment delivered on 14.7.2021
 
Court No. - 6
 

 
Case :- CRIMINAL REVISION No. - 3449 of 2019
 

 
Revisionist :- Meghraj Sharma
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Sikandar B. Kochar
 
Counsel for Opposite Party :- G.A.,Sharique Ahmed
 

 
Hon'ble Pankaj Bhatia,J. 

1. Heard Sri Sikandar B. Kochar, counsel for the revisionist, Sri Sharique Ahmad, counsel appearing on behalf of the Opposite Party No. 2 as well as Sri Manoj Kumar Dwivedi, learned AGA appearing on behalf of the State and perused the record.

2. The present revision has been filed challenging the order dated 16.11.2018 passed by the Juvenile Justice Board, Kanpur Nagar in Misc. Case No. 6500036 of 2014 (State Vs. Meghraj Sharma and others) arising out of Case Crime No. 213 of 2013, under Sections 302, 201, 364A IPC, Police Station Swaroop Nagar, District Kanpur Nagar, whereby the claim of juvenility pleaded by the revisionist was rejected by the Court ,as well as the order dated 4.7.2019 passed by the Special Judge (POCSO Act)/Additional Sessions Judge, Court No. 7, Kanpur Nagar in Criminal Appeal No. 224 of 2018 (Meghraj Sharma Vs. State of U.P.),whereby the appeal filed against the order dated 16.11.2018 was dismissed.

Facts in brief:

3. Facts which are the genesis of the present dispute are that an FIR dated 23.12.2013 was registered as Case Crime No. 213 of 2013 against some unknown persons initially under Section 363 IPC which was subsequently converted into Section 364A, 302, 201 IPC, Police Station Swaroop Nagar, District Kanpur Nagar.

4. In the said FIR, the date of incident alleged was 22.12.2013. The investigations were carried out and a chargesheet dated 18.2.2014 was filed against the revisionist and the co-accused persons.

5.The revisionist claiming to be a juvenile on the basis of his High School Certificate indicating his date of birth as 21.4.1996, filed an application before Special Chief Judicial Magistrate, Kanpur Nagar, for being declared a juvenile. The Special Chief Judicial Magistrate relying on the High School Certificate declared the revisionist a juvenile vide order dated 2.4.2014. The said order dated 2.4.2014 was challenged by means of a Criminal Appeal No. 81 of 2014. The appeal too was dismissed vide order dated 14.9.2015 and the order declaring the revisionist a juvenile was upheld in appeal. Aggrieved against the said order passed by the appellate authority on 14.9.2015, a revision was preferred before this Court being Criminal Revision No. 3839 of 2015. This Court heard the matter and finally held that the Special Chief Judicial Magistrate did not have jurisdiction to decide the claim of juvenility and held that it was Juvenile Justice Board, which was empowered to decide the said question, as such, the appellate order was set aside and the matter was remanded for decision on the question of juvenility by the Juvenile Justice Board.

6. The Juvenile Justice Board by means of an order dated 16.11.2018, disbelieving the High School Certificate and placing reliance on the medical report, held that the revisionist was not a juvenile on the date of the incident. The Board determined the juvenility on the basis of procedure prescribed under the Rules framed by the State Government in 2004 .

7. The said order dated 16.11.2018 was challenged by the revisionist by filing Criminal Appeal No. 224 of 2018 before the Special Judge (POCSO Act)/Additional Sessions Judge, Court No. 7, Kanpur Nagar. The said appeal too was dismissed vide order dated 4.7.2019, thus the order of Juvenile Justice Board dated 16.11.2018 holding the revisionist to be major was upheld by the Appellate Court. The present revision has been filed challenging both the orders dated 16.11.2018 and order dated 4.7.2019.

8. Common ground between the parties is that the date of incident admittedly is 22.12.2013. It is well settled that the question of juvenility is to be determined on the date of the incident.

Submission of parties:

9. The submission of counsel for the revisionist is that while determining the juvenility, the Juvenile Justice Board has erred in not relying upon the Birth Certificate, which was available on record indicating the date of birth of the revisionist as 21.4.1996 and has erred in taking recourse to medical examination as well as other evidence while coming to a conclusion with regard to status of the revisionist as juvenile. His submission is that in terms of the provisions of the Juvenile Justice (Care And Protection Of Children) Act, 2000 (in short 'the Act 2000') the procedure for determining juvenility is prescribed under Section 7A which lays down the procedure to be followed when the claim of juvenility is raised before the Court. He argues that a specific procedure has been prescribed in Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short 'Rules 2007') for determining the juvenility. He further relies upon Section 68 of the Act 2000 which confers power on the State Government to make rules to carry out the purpose of the Act 2000 subject to the rider as prescribed under the proviso to Section 68 (1) of the Act 2000, which makes it clear that where the Central Government has framed model rules and the State Government although empowered to make rules has not framed the model rules as framed by the Central Government would prevail. He further argues that even in terms of the Rules 2007, it is specifically provided that the rules so framed by the State Government should be in conformity with the model rules framed by the Central Government. He emphasises that determination of age on basis of Rules of 2004 was bad in law and contrary to the mandate of Act and the settled law.

10. On the basis of the said submission, counsel for the revisionist argues that the Juvenile Justice Board as well as Appellate Court has erred in ignoring the mandate of the Act 2000 as well as Rules 2007 and have taken recourse to determine the age relying on medical examination and other evidence which is strictly prohibited. He further placed reliance on the judgment of the Full Bench of this Court in the Case of Jai Prakash Tiwari Vs. State of U.P. & another, 2016, 97 ACC 592. On the basis of the said submissions, he argues that the orders passed are contrary to the Act, 2000 and Rules, 2007 and the same deserves to be set aside, the revision should be allowed and the revisionist should be declared a juvenile based upon the High School Certificate, which is on record before this Court also.

11. Sri Sharique Ahmad, on the other hand, argues that in the light of the judgment in the case of Parag Bhati (juvenile) Vs. State of Uttar Pradesh, 2007 SCC (Crl.) 819, 2013 SCC online All, which places reliance on the earlier judgment of Abuzar Hossain alias Gulam Hossain Vs. State of West, (2012) 10 SCC 489, 2013 1 SCC (Cri.) 83, it is open before the Juvenile Justice Board to resort to procedure of conducting the medical examination if the Juvenile Justice Board has reasons to believe that the High School Certificate casts a doubt of it being obtained in a manner which is not prescribed under law or is fraudulent. He further argues that in terms of the material before the Juvenile Justice Board, as indicated in the impugned order, the Juvenile Justice Board was right in coming to the conclusion that matriculation certificate as produced by the juvenile was not worthy of reliance and no error can be found with regard to steps taken by the Juvenile Justice Board for determining the age of the juvenile which, on determination, has been found to be above 18 years of age.

12. Counsel for the Opposite Party further argues that the first submission of the revisionist that the determining process should be taken in accordance with the Rules 2007, does not merit acceptance as rules of Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004 (in short 'Rules 2004) and Rule 2007 of the Central Government, in sum and substance, are same and no prejudice is likely to be caused to the revisionist on account of determination based upon the Rules 2004.

13. Counsel for the revisionist, in rejoinder, argues that initially also the proceeding has travelled to this Court and this Court had entertained Criminal Revision No. 3839 of 2015 and finally vide order dated 15.5.2018, the matter was remanded for determination of the juvenility.

14. Sri Manoj Kumar Dwivedi and Sri O.P. Mishra, learned AGA appearing on behalf of the State strongly defend the orders and argue that the orders have been passed in accordance with law.

Statutory Provisions

15. Realizing that primary responsibility for ensuring the needs of the children is to be filled General Assembly of the United Nations adopted a Convention on the Rights of a Child on 20th November, 1989 and it was accepted that all the nations would adhere to the standards set therein.

16. In terms of the mandate of the Constitution as laid down in Article 15 (3), Clauses (e)(f) of Article 39, Article 45 and Article 47. The Government of India ratified the Convention on 11th December, 1992. Initially for ensuring the needs of the children in conflict with law was governed by the Juvenile Justice Act, 1986, however, subsequently, the Government of India having ratified the United Nations Convention on Child Rights enacted the ''Act' known as The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the ''JJ Act 2000').

17. Section 7A of the said JJ Act 2000 provides for the procedure to be followed when the claim of juvenility is raised before any Court and is as under:

"[7A. 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 inquiry, 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 order, and the sentence if any, passed by a court shall be deemed to have no effect].

18. Section 68 of the JJ Act 2000 empoweres the State Government to make rules to carry out the purposes of the Act. Section 68 (1) of the JJ Act 2000 is being quoted herein below as the same is relevant for the purpose of adjudication:

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: 1[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 that matter is made by the State Government and while making any such rules, so far as is practicable, they conform to such model rules.]

19. In terms of the powers conferred by virtue of Section 68 of the JJ Act 2000, the State Government framed rules known as The Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004 (hereinafter referred to as the ''Rules of 2004'). The said rules specifically provided for the manner of determining the age of the juvenile. Rule 22 of the said Rules of 2004 laid down the procedure to be followed by a Court in holding the inquiries. Rule 22 (5), which is relevant for the present case is quoted hereunder:

22. Procedure to be followed by the Board in holding inquiries and the determination of age. -

(5) In every case concerning a juvenile or child, the Board shall 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, and, when 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.

20. Subsequent thereto, the Central Government also framed rules which are known as The Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the ''Rules of 2007'). In the said Rule, Rule 12 specifically provided for the procedure to be followed by the Board while determining the age of the Juvenile. Rule 12 (3) relevant for the present case is as under:

"12 (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."

21. Subsequently, the Act itself has been amended by the Juvenile Justice (Care and Protection of Children) Act, 2015 and The Juvenile Justice (Care and Protection of Children) Model Rules, 2016.

22. In the present case, as the date of incident admittedly is 22.12.2013, the Act of 2015 and the Model Rules of 2016 would not apply and the determination is to be done on the basis of law as existed on the date of the incident i.e. on 22.12.2013.

23. Thus, on the basis of the submissions as made and on the basis of the statutory provisions that existed on the date of the incident what has to be determined is

(a) whether the claim of juvenility is to be decided on the basis of 2007 Rules or 2004 Rules; and

(b) whether the orders passed and impugned herein are in conformity with the statutory mandate.

24. The first submission of Sri Sharique Ahmed, counsel for the opposite party that there is no distinction in between the 2004 Rules or 2007 Rules in as much as the procedure adopted for determination of age prescribed is same under both the rules is not worthy of acceptance for the sole reasons that Rule 12 (3) (b) of the Rules 2007 specifically mandates the reliance on documents specified under clauses (i), (ii) and (iii) of Rule 3 (a) and in that order and permits the resort to constitution of a Medical Board only in the absence of any of Clauses (i), (ii) and (iii) of Rule 3 (a) of Rule 12, whereas in the Rules of 2004, the resort to medical opinion by a medical board is available only in the event of absence of the documents mentioned in Clause (1) to (3) of Rule 22 of Rules 2004. The other distinction between the said two Rules is that Rule 22 (5) in the order of priority prescribes three documents, which can be relied upon by the Board while determining the claim of juvenility being birth certificate given by a municipal authority, the date of birth certificate from the school first attended and matriculation and equivalent certificate, if available, whereas in the Rules of 2007, the order of documents, which can be relied upon by the Board while deciding the claim of juvenility are matriculation or equivalent certificate and ''in absence' thereof , the date of birth certificate from the school and in ''in absence', the birth certificate given by a corporation or a municipal authority. Comparison of the two is indicated hereinbelow:

Rule 22 (5) of the Rules, 2004

Rule 12 (3) of the Rules, 2007

(5) In every case concerning a juvenile or child, the Board shall 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, and, when 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.

(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.

25. Thus, the distinction as is clear from the 2004 Rules and 2007 Rules is that resort to the certificates enumerated in Clause (ii) and Clause (iii) of Rule 3 (a) of the 2007 Rules and in that order can be taken only ''in absence' of availability of the document as specified in Rule 12 (3) (a)(i).

26. The Full Bench of this Court had the occasion to consider the applicability of 2004 Rules vis-a-vis applicability of 2007 Rules in view of the conflict and in terms of the mandate of Section 68 of the JJ Act, 2000 the Full Bench, after dealing with the scope of the said two rules and after noticing the inconsistencies in between the said two rules finally in Jai Prakash Tiwari Vs. State of U.P. and another, 2016 (97) ACC 592 held as under:

"32. The procedure that has been provided for determining the question of juvenility under Central Rules as to how the question of juvenility is to be determined, the same will have a prevailing effect on U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004 as the State of Uttar Pradesh has not framed any rule in tune with the Central Rules referred to above and Central Rule would apply for the inquiry to be held until Rules in this regard are framed by the State of Uttar Pradesh, in view of this, answer to the question posed i.e. "whether the U.P. Juvenile Justice (Care & Protection of Children ) Rules 2004 need be recast consequent upon addition of section 7-A of the Juvenile Justice (Care & Protection of Children) Act, 2000 (as amended by Act No. 33 of 2006)" is 'Yes' as the provisions of the U.P. Juvenile Justice (Care & Protection of Children) Rules 2004 on its own after introduction of Section 7-A and keeping in view the provisions of the Central Rules until and unless it is not revamped and not at all brought in consonance with the provisions as are contained under the Juvenile Justice (Care & Protection of Children) Rules 2007, the same cannot be subscribed and in view of this, same needs to be modified.

33. The answer to the second question i.e. "And in case it is found that they need not be recast whether the U.P. Juvenile Justice (Care & Protection of Children )Rules 2004 framed by State Government or The Juvenile Justice (Care & Protection of Children) Rules 2007 framed by the Central Government shall apply to the matter, in Uttar Pradesh" is that it needs to be modified and till it is not revamped, on the issue of juvenility being raised, the answer to the said question will have to be found on the parameters of the provisions as are contained under The Juvenile Justice (Care & Protection of Children) Rules 2007 and the same shall apply to the matter in the State of Uttar Pradesh also."

27. In view of the specific decision of the Full Bench as quoted above, the argument of Sri Sharique Ahmed cannot be accepted and it is thus held that the only recourse available before the Board was to determine the question of juvenility on the basis of 2007 Rules. This answers the first question.

28. Coming to the second question as to whether the order of the Juvenile Justice Board dated 16.11.2018 is in conformity with the 2007 Rules or not .

29. The claim of juvenility by the revisionist was based upon the High School Certificate indicating the date of birth of the revisionist as 21.4.1996. Prior to date of birth recorded in the certificate being 21.4.1996 a certificate was issued to the revisionist indicating his date of birth as 21.4.1997 and as there were error in the said date of birth on an application filed by the revisionist, the date of birth was corrected by the Education Board to 21.4.1996 which Certificate was relied upon by the revisionist in support of his claim of juvenility. The Juvenile Justice Board observed that as the date of birth has been corrected from 21.4.1997 to 21.4.1996 the same was not trustworthy and the Board resorted to the procedure as laid down in Rule 22 (4) of the JJ Rules 2004 for determination of date of birth. Besides expressing suspicion on account of change of date of Birth, the Board has relied upon the statement of the mother of the juvenile to the effect that a birth certificate is available in the records of the Nagar Nigam whereas the report of police indicated that no such birth certificate existed in the records of Nagar Nigam. JJ Board further placed reliance upon the certificate issued by the NDMC to the effect that the address of the parents of the revisionist was forged. JJ Board further found that the statement of the parents of juvenile that the juvenile was born in Delhi was found to be untrue. After having cast doubt on the High School Certificate on the basis of the evidences, as discussed above, the Juvenile Justice Board further disbelieved the statement with regard to the primary education on the basis of the statement made by the mother and father of the juvenile. The JJ Board although considered the certificate on record issued by the Uttar Pradesh Education Board to the effect that the revisionist Meghraj Sharma, who appeared in the High School Examination in the year 2012 having Roll No. 1625284 and his date of birth was corrected from 21.4.1997 to 21.4.1996 did not rely upon the same, thus, having cast a doubt on the grounds as extracted above, the Board taking recourse to 2004 Rules proceeded to determine the age of the revisionist as 19 years, 8 months and 25 days as on the date of the incident on the basis of the medical examination alone and consequently the claim of juvenility stood rejected.

30. Having considered the reasoning of the Board as extracted above, I am of the firm view that the reasoning adopted in disbelieving the High School Certificate of the revisionist was wholly arbitrary in as much as the revisionist had got his date of birth in the certificate corrected from 21.4.1997 to 21.4.1996 by adopting the procedure established for change of date of birth and duly ordered by the Deputy Secretary of the Education Board permitting the correction of error in recording the date of birth in the High School Certificate. The JJ Board erred in disbelieving the certificate despite there being nothing on record to indicate that the certificate issued by the Board indicating the date of birth as 21.4.1996 was a forged or fabricated document and in any case change of date of birth from 21.4.1997 to 21.4.1996, that too, much prior to the date of the incident could not have enured any benefit to the revisionist as the age of the juvenile was actually increased. Once there is nothing on record to the effect that certificate issued by the Board was either forged or fabricated document, it could not have been disbelieved by the JJ Board, moreso, on the basis of the reasoning given by the JJ Board that the date of birth in the certificate was got changed from 21.4.1997 to 21.4.1996. Once the High School Certificate was on record, the resort to report of the Medical Board was not available to the Board in view of the specific mandate contained in Rule 12 (3) of the 2007 Rules. The appellate authority committed the same error while holding the order of the Board and resorted to the report of the Medical Board ignoring the High School Certificate holding the same to be suspicious for the reasons as recorded by the JJ Board.

31. The counsel for the parties have relied upon the judgments in which the first being Full Bench judgment of this Court in the case of Jai Prakash Tiwari Vs. State of U.P., 2016 (97) ACC 592, which I have already discussed hereinabove, which clearly laid down that in case of conflict the determination is to be done in accordance with the 2007 Rules. Being a judgment by Full Bench of this Court, I am bound by the said judgment and thus, I have no hesitation in holding that resort to determination under 2004 Rules was not available to the Board and the determination ought to have been done under the 2007 Rules alone.

32. The next judgment relied upon by the counsel for the revisionist is the judgment of the apex court in Ashwani Kumar Saxena Vs. State of M.P., 2013 SCC (Cri), 2012 9 SCC 570 wherein the Supreme Court after considering the scope of Section 7A of the 2000 Act and 2007 Rules specifically held as under:

"31. We also remind all Courts/Juvenile Justice 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.

32. "Age determination inquiry" contemplated under section 7A 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 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.

33. 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 Juvenile Justice Act also draws a presumption of the age of the Juvenility on its determination.

34. 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, Juvenile Justice Board or a Committee functioning under the Juvenile Justice 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."

33. The pronouncement of the Supreme Court is clear that the proceedings prescribed in 2007 Rules have to be followed strictly and only in the absence of the document specified in rule 12 (3)(a) can recourse be taken to the other methods prescribed.

34. Counsel for the Opposite Party, on the other hand, has placed reliance upon the judgment of the Supreme Court in the case of Parag Bhati (Juvenile) Through Legal Guardian Mother Rajni Bhati Vs. State of Uttar Pradesh and another, (2016) 12 Supreme Court Cases 744 wherein the Supreme Court considered the scope of Rule of 12 of 2007 Rules and specifically held as under:

"36. It is settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain (supra), an enquiry for determination of the age of the accused is permissible which has been done in the present case."

35. In the above judgment, the apex court holding that only if there is any doubt with regard to the the certificates as enumerated within Rule 12 (3)(a), the resort can be taken for determination of the age in the manner as prescribed by the Apex Court in the judgment in the case of Abuzar Hossain alias Gulam Hossain Vs. State of West, (2012) 10 SCC 489. The Supreme Court summarised the position as under:

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

(i) A claim of juvenility may be raised at any stage even after final disposal of the case. It may be raised for the first time before this Court as well after 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 appeal court.

(ii) 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.

(iii) 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 Rule 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 Singh10 the documents viz., school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7A and order an enquiry for determination of the age of the delinquent.

(iv) 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 age of the delinquent.

(v) 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 2000 Act are not defeated by hyper-technical approach and the persons who are entitled to get benefits of 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.

(vi) 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 threshold whenever raised."

36. In the same very judgment, one of the judges on the Bench T.S. Thakur, J. agreeing with the view of the other brother judges further clarified the position and recorded as under:

"39. Physical appearance of the accused is, therefore, a consideration that ought to permeate every determination under the Rule aforementioned no matter appearances are at times deceptive, and depend so much on the race or the region to which the person concerned belongs. Physical appearance can and ought to give an idea to the Court at the stage of the trial and even in appeal before the High Court, whether the claim made by the accused is so absurd or improbable that nothing short of documents referred to in this Rule 12 can satisfy the court about the need for an enquiry. The advantage of "physical appearance" of the accused may, however, be substantially lost, with passage of time, as longer the interval between the incident and the court's decision on the question of juvenility, the lesser the chances of the court making a correct assessment of the age of the accused. In cases where the claim is made in this Court for the first time, the advantage is further reduced as there is considerable time lapse between the incident and the hearing of the matter by this Court.

40. The second factor which must ever remain present in the mind of the Court is that the claim of juvenility may at times be made even in cases where the accused does not have any evidence, showing his date of birth, by reference to any public document like the register of births maintained by Municipal Authorities, Panchayats or hospitals nor any certificate from any school, as the accused was never admitted to any school. Even if admitted to a school no record regarding such admission may at times be available for production in the Court. Again there may be cases in which the accused may not be in a position to provide a birth certificate from the Corporation, the municipality or the Panchayat, for we know that registration of births and deaths may not be maintained and if maintained may not be regular and accurate, and at times truthful. Rule 12(3) of the Rules makes only three certificates relevant. These are enumerated in Sub- Rule 3(a)(i) to (iii) of the Rule which reads as under:

"(3)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;

41. Non-production of the above certificates or any one of them is not, however, fatal to the claim of juvenility, for Sub-Rule 3(b) to Rule 12 makes a provision for determination of the question on the basis of the medical examination of the accused in the ''absence' of the certificates. Rule 12(3)(b) runs as under:

"12(3) (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."

42. The expression ''absence' appearing in the above provision is not defined under the Act or the Rules. The word shall, therefore, be given its literal dictionary meaning which is provided by Concise Oxford dictionary as under:

"Being away from a place or person; time of being away; non- existence or lack of; inattenation due to thought of other things."

43. Black's Law Dictionary also explains the meaning of ''absence' as under:

"1. The state of being away from one's usual place of residence. 2. A failure to appear, or to be available and reachable, when expected. 3. Louisiana Law. The State of being an absent person - Also termed (in sense 3) absentia."

44. It is axiomatic that the use of the expression and the context in which the same has been used strongly suggests that ''absence' of the documents mentioned in Rule 12(3) (a)(i) to (iii) may be either because the same do not exist or the same cannot be produced by the person relying upon them. Mere non-production may not, therefore, disentitle the accused of the benefit of the Act nor can it tantamount to deliberate non-production, giving rise to an adverse inference unless the Court is in the peculiar facts and circumstances of a case of the opinion that the non-production is deliberate or intended to either mislead the Court or suppress the truth."

37. Thus, in the same very judgment as extracted above, the phrase ''in the absence of' as used in Rule 12 (3) (a) (i)(ii)(iii) has been further explained. Applying the ratio laid down by the Supreme Court to the facts of the case in hand it is clear that resort to the provisions of Rule 12 (3)(a)(iv) was not available to the board as there was no absence of the Matriculation Certificate.

38. The counsel for the Opposite Party has further also placed reliance on the judgment of the Supreme Court in the case of Om Prakash Vs. State of Rajasthan, 2012 (77) ACC 654 (SC) .

39. In the said case, the Court was of the view that in the event of there being insufficient evidence, on the basis of school records, to come to the conclusion of the age of the juvenile resort can be taken to the medical evidence. However, the said judgment will have no applicability to the present case as the High School Certificate was available on record .

40. In the said judgment, the Supreme Court after observing the earlier decisions of the Supreme Court in the case of Ashwani Kumar Saxena (supra), Abuzar Hossain alias Gulam Hossain (supra) and Parag Bhati (supra) proceeded to hold the matriculation certificate produced by the juvenile in the said case as being suspicious on the basis of the material on record including the affidavit filed by the Board i.e. CBSE to the effect that the date of birth was recorded purely on the basis of final list of student forwarded by the school. The Supreme Court further placed reliance upon the statement of Head Master of the school who deposed that the date of birth was indicated on the basis of the affidavit of the parents which could not be procured in the case of the student/accused in the said case. Thus, based upon the said material, the Supreme Court held the resort to Section 12 (3) (b) was justified. The said judgment has no applicability to the facts of the present case as in the present case, there is no such exercise carried out by the JJ Board while disbelieving the certificate issued by the Education Board.

41. Next judgment relied upon by the counsel for the Opposite Party is the judgment of this Court dated 16.8.2018 passed in Criminal Revision No. 64 of 2018, Brijesh Kumar Vs. State of UP. In the said judgment, the Court was confronted with the question of resort to Clause (b) of Rule 12 (3) in view of there being absence of the original High School Certificate and the reliance being placed upon the certificate which contained manipulations and interpolations. This Court after considering the plethora of judgments on the question of determination of juvenility held as under:

"Thus if no other evidence is led, either as to fabrication or manipulation in the school record or to create a reasonable doubt as to the correctness of school record or if there is no other contradictory stand taken by the accused as to the age disclosed on the strength of the school record, or there does not exist any other circumstance as may raise a reasonable doubt as to the genuineness or correctness of the school certificate or the date of birth of the claimant disclosed therein, then obviously the age claim made on the strength of the school certificate must be accepted and in that event, the Court concerned may remain advised to not unnecessarily examine any other evidence."

42. The Court took into consideration the fact that certificate relied upon was neither signed by the Secretary nor was there any explanation with regard to the difference with the name of the father of the student. I am afraid, the said judgment has no applicability to the facts of the present case.

43. The last case relied upon by the counsel for the Opposite Party is the judgment of the Supreme Court in the case of M.C. Gupta Vs. C.B.I., (2012) 8 Supreme Court Cases 669. The said judgment dealt with issue of repeal of the Act and the Supreme Court held that any person can be convicted for an offence in terms of the law as it existed at the time of the commission of the offence in terms of the law in force at that time. The said judgment, I am afraid, has no applicability to the facts of the present case.

44. On the basis of interpretation of law by Apex Court and discussed above, the salient features that can be culled out for determination of age of a juvenile under the 2007 Rules are:

(i) If Matriculation Certificate is available, only the same is to be relied upon for determination of age.

(ii) Matriculation Certificate can be disbelieved only if it is forged or fabricated which has to be adjudicated after enquiry and sufficient evidence to be dealt with in accordance with procedure established to hold a document as forged and fabricated.

(iii) If Matriculation Certificate is not available or in its absence alone can resort be taken to determination on basis of date of birth certificate from school first attended (Rule 3 (a) (ii) of the Rules 2007.)

(iv) If date of birth certificate is not available or is disbelieved if found to be forged and fabricated after the adjudication and considering the evidence and following the procedure for holding the document as forged and fabricated.

(v) Resort can be taken to the birth certificate given by the corporation or a municipal authority.

(vi) If the said birth certificate given by the corporation or a municipal authority is not available or is held to be forged and fabricated and not worthy of reliance after conducting the enquiry on the basis of evidences adduced, resort can be taken to Clause 12 (3) (b) of the Rules 2007.

45. In view of the discussions and the case laws referred to above, I am of the firm view that Board has committed error in determining the Juviniles claim by taking recourse to Rules of 2004 and has erred in not placing reliance on the High School Certificate, which is on record. Even otherwise also, the reasoning given by the Board in rejecting the claim of juvenility is wholly arbitrary.

46. In view thereof, the revision deserves to be allowed. The impugned order dated 4.7.2019 passed by the Special Judge (POCSO Act/Additional Sessions Judge, Court No. 7, Kanpur Nagar in Criminal Appeal No. 224 of 2018 and the impugned order dated 16.11.2018 passed by the Juvenile Justice Board, Kanpur Nagar in Misc. Case No. 6500036 of 2014, Case Crime No. 213 of 2013, under Sections 302, 201, 364-A IPC, Police Station Swaroop Nagar, District Kanpur Nagar are set aside and the revisionist is declared juvenile on the date of the commission of the alleged offence in view of his age being 21.4.1996 as indicated in the High School Certificate.

Order Date :- 14.7.2021

vinay