Anney Kamran vs State And Anr.
2006 Latest Caselaw 1286 Del

JUDGMENT

Badar Durrez Ahmed, J.

Page 2878

1. The learned Counsel for the petitioner submits that this Revision petition has been filed inasmuch as the petitioner is aggrieved by the order dated 26.5.2005 passed by the Juvenile Justice Board dismissing the petitioner's application of 12.5.2005 requesting for holding a full fledged inquiry with regard to the age of the accused Hasan Ali in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, (hereinafter referred to as the said Act.)

2. The facts leading to the filing of the present revision petition are that prior to the committal of the case by the Metropolitan Magistrate to the Sessions Court, on 13.2.2004 the Metropolitan Magistrate recorded the age of accused Hasan Ali as given by him to be 17 years. However, the learned Metropolitan Magistrate observed that from his appearance he did not appear less than 18 years of age. It was noted in the said order that the accused had stated that he did not go to school nor did he have any document to prove his age. At that stage, the learned Metropolitan Magistrate noted that he was satisfied that the accused was above 18 years of age. The case was committed to the Court of the Sessions Judge, Delhi by the same order dated 13.2.2004. Thereafter, some proceedings took place with regard to the age of the accused Hasan Ali before the Sessions Court. The accused Hasan Ali had moved an application before the Additional Sessions Judge seeking an order for conducting the ossification test so as to determine his correct age inasmuch as the accused claimed to be 15 years old whereas the police challan showed him as 21 years old. Apparently an ossification test was directed and the radiological examination, as recorded in the order dated 13.10.2004 passed by the learned Additional Sessions Judge, revealed that the age of the accused was between 16 to 18 years. However, in the order dated 13.10.2004 the learned Additional Sessions Judge relied on the report submitted by Inspector V.S. Ahlawat which in turn was based on the date of birth of the accused having been confirmed as 5.1.1988 from the hospital records. The learned Additional Sessions Judge concluded that the age of Hasan Ali was 16 years 25 days on the date of presentation of the challan, i.e., on 30.1.2004 and, accordingly, held that the accused was a juvenile and directed that he be produced before the Juvenile Justice Board. The exact words used by the learned Additional Sessions Judge while making the aforesaid order are, inter alia, as follows:

Further report has been filed by SHO with respect to verification of date of birth certificate of accused Hassan Ali S/O Nurul Islam. It is submitted by Inspector B.S. Ahlawat that as per report, the date of birth of accused has been confirmed as 5.1.88 from hospital record. It is clarified that earlier the same could not be confirmed as the photocopy Page 2879 of the date of birth certificate was not legible. Ld APP also submits that as per Radiological Examination on 5.6.04, the age of the accused has been opined to be between 16-18 years.

In view of the report submitted by the prosecution, the accused Hassan Ali was aged about 16 years and 25 days on the date of presentation of challan i.e. 30.1.04. The accused is accordingly a juvenile and required to be produced before Juvenile Justice Board.

3. By virtue of the said order dated 13.10.2004 the accused Hasan Ali was remanded to the observation home and a direction was passed for filing a separate charge sheet against the accused Hasan Ali before the Juvenile Justice Board. On 12.5.2005 the complainant moved an application before the Juvenile Justice Board praying for a full fledged inquiry into the age of accused Hasan Ali in accordance with the provisions of the said Act. This application was taken up for disposal and was dismissed by the Juvenile Justice Board by virtue of the impugned order dated 26.5.2005. The reasons for dismissal were as under:

The other plea taken by the applicant is that the the Board should hold full-fledged enquiry about the age of delinquent Hasan Ali who has already been declared a juvenile by the Ld. Sessions Court. On this account also, Juvenile Justice Board has no power at this stage and the only remedy lies with the applicant is to move to the superior Court in appeal or revision.

4. The learned Counsel for the petitioner referred to the provisions of Section 7 of the said Act as well as the provisions of Section 49 thereof. He submitted that the finding of the learned Additional Sessions Judge ought to be regarded only as an opinion and should be on the same footing as an opinion of a Magistrate under Section 7. Therefore, it was incumbent upon the Juvenile Justice Board to hold a full-fledged enquiry under Section 49 and record a definite finding with regard to the age of the accused. The Juvenile Justice Board has taken the order dated 13.10.2004 as a finding which was binding on the Juvenile Justice Board whereas in fact, according to the learned Counsel for the petitioner, that order was in the nature of a mere opinion. The learned Counsel for the petitioner placed reliance on a decision of a learned Single Judge of Calcutta High Court in the case of Sunil Das and Anr. v. State of West Bengal and Ors. 1992 (II) CHN 59.

5. The learned Counsel for the petitioner also referred to the certificate of birth, a copy of which at page 44 of the paper book, which was allegedly relied upon by the learned Additional Sessions Judge. The date of registration of the said birth certificate is given as 30.5.2004, that is, after the date of the incident. Though the Birth Certificate shows the date of birth of the accused as 5.1.1988, it is the contention of the petitioner that this birth certificate was procured only for the purpose of establishing that the accused Hasan Ali was a juvenile so as to get protection under the said Act. The birth certificate was procured after the date of the incident and, therefore, the same was suspect. A proper inquiry ought to have been held to determine the veracity and validity of this document.

6. The learned Counsel for the State referred to Section 6 of the said Act and Page 2880 in particular Sub-Section (2) thereof which clearly stipulates that the powers conferred on the Juvenile Justice Board by or under the said 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. According to her, the order passed by the learned Additional Sessions Judge on 13.10.2004 would be in exercise of the powers conferred under Section 6(2) and, therefore, it was not necessary for the Juvenile Justice Board to have conducted a full-fledged inquiry. The learned Counsel for the State, however, also submits that the State is not averse to the idea of giving another opportunity to the complainant to controvert the finding that the accused Hasan Ali was a juvenile.

7. In rejoinder, the learned Counsel for the petitioner submitted that the powers under Section 6(2) are to be exercised only at the stage of appeal, revision or during the course of proceedings under the Act and not when the matter comes originally before the Sessions Court. The order passed by the learned Additional Sessions Judge in the present case on 13.10.2004 was not in appeal or in revision or in proceedings under this Act but when the matter has been committed originally to him by the Court by the learned Metropolitan Magistrate. According to him, such situation is not covered by Section 6(2).

8. Before considering the rival contentions of the parties, it would be relevant to set out the material provisions of the said Act:

6. Powers of Juvenile Justice Board. - (1) Where a Board has been constituted for any district or a group of districts, such Board shall, notwithstanding anything contained in any other 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.
 

7.     Procedure to be followed by a Magistrate not empowered under the Act.-(1) When any Magistrate not empowered to exercise the powers of a Board under this Act is of the opinion that a person brought before him under any of the provisions of this Act (other than for the purpose of giving evidence), is a juvenile or the child, he shall without any delay record such opinion and forward the juvenile or the child and the record of the proceeding to the competent authority having jurisdiction over the proceeding.
 

(2)   The competent authority to which the proceeding is forwarded under Sub-section (1) shall hold the inquiry as if the juvenile or the child had originally been brought before it.
 

9. A plain reading of the aforesaid provisions makes it clear that insofar as a juvenile in conflict with law is concerned, the Juvenile Justice Board has exclusive power to deal with such a juvenile in respect of the proceedings under the said Act. Furthermore, by virtue of Section 7 if a Magistrate who is not empowered to exercise the powers of the Juvenile Justice Board, is of the opinion that a person brought before him is a juvenile then he is required to Page 2881 record such an opinion without delay and forward the juvenile and the record of the proceedings to the competent authority having jurisdiction under the Act. The meaning of this is clear that where any Magistrate who is not functioning as a Juvenile Justice Board feels that a person brought before him is a juvenile he has to record such an opinion and send such juvenile to be dealt with by the competent authority. Before a person can be sent to the competent authority for being dealt with in accordance with the said Act, the Magistrate has to record an opinion that such person is a juvenile as defined in Section 2(k) of the said Act. Section 7(2) provides that after the juvenile has been sent to the competent authority, the latter shall hold the 'inquiry' as if the juvenile or the child had originally been brought before it. This 'inquiry' has reference to the inquiry to be conducted by the Board under Section 14 of the Act and does not have reference to the inquiry for determination of age of a person under Section 49 of the said Act.

10. The provisions of Section 6(2) of the said Act also make it clear that the powers conferred on the Board by or under the said 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'. This provision has been relied upon by the learned Counsel for the State to submit that the learned Additional Sessions Judge had, in exercise of this power, determined the age of the accused Hasan Ali as 16 years and 25 days on the date of the challan. Therefore, no further determination of age was necessary by the Juvenile Justice Board. On the other hand, the learned Counsel for the petitioner had submitted, as indicated above, that the matter before the learned Additional Sessions Judge was neither an appeal nor a revision and it would also not fall within the expression 'or otherwise' because it did not relate to a proceedings under the Act. He relied upon the decision of the Calcutta High Court in the case of Sunil Das (supra) to indicate that after an opinion is formed by a Magistrate that a person before him is a juvenile and such person is sent to the appropriate Court for being dealt with under the provisions of the said Act, it is still incumbent upon the competent authority (Juvenile Justice Board) to make an Inquiry under Section 49 of the said Act. In Sunil Das (supra), a learned Single Judge of the Calcutta High Court observed as under:

7. Section 8(1) of the Juvenile Justice Act reflects the proper spirit and principle which also applies to any case before any Magistrate or Court not empowered to deal with a juvenile delinquent under the Juvenile Justice Act where any question or doubt is raised about the age of the accused. Going by that principle, if during the trial of a case in a Criminal Court any question of juvenility of any accused is raised before the Court it becomes incumbent upon the court to make a preliminary enquiry in the matter and form an opinion as to whether the person concerned is a juvenile and if the opinion is affirmative in that event the case has to be referred to the Juvenile Court for being dealt with under the Juvenile Justice Act, in which case the Juvenile Court shall yet make due enquiry under s. 32(1) of the Juvenile Justice Act about age of the person and record a finding whether the person concerned is a juvenile or not. However, if the opinion of the Criminal Court is otherwise, namely, that the person concerned was not a juvenile on the date of the occurrence, then the matter need not be referred to the Juvenile Court, but such Page 2882 opinion of court will be subject to revision by a superior Court.

11. One of the contentions raised before the Calcutta High Court was that the inquiry into the age of the person conducted by the Sessions Judge should not have been done and the matter ought to have been referred to the Juvenile Court. This argument was repelled by the Calcutta High Court as would be evident from the following:

... In the present case, therefore the learned Sessions Judge by embarking on an enquiry about the age of the petitioners instead of referring the matter to the Juvenile Court at that stage did nothing wrong and rather he adopted the correct procedure. The contention that the learned Sessions Judge should have referred the matter to the Juvenile Court instead of himself making an inquiry about the juvenility of the accused therefore stands overruled.

12. A reading of the aforesaid extracts makes it clear that the Calcutta High Court was of the view that it is well within the powers of the Sessions Court to embark upon an inquiry as to the age of a person instead of referring the matter to the Juvenile Court/Juvenile Justice Board. It is also clear that if the Sessions Court comes to the opinion that the person before it is not a juvenile then the matter ends there and need not be referred to the Juvenile Court/Juvenile Justice Board. Therefore, this opinion of the Sessions Court would still be subject to correction by a superior Court. But, if the Sessions Court upon an inquiry of a preliminary nature, forms an opinion that the person concerned is a juvenile then the case has to be referred to the Juvenile Court/Juvenile Justice Board for being dealt with under the said Act. It is, of course, observed in the decision of the Calcutta High Court that in such an eventuality the Juvenile Court 'shall yet make due inquiry under Section 32(1) of the Juvenile Justice Act about the age of the person and record a finding whether a person concerned is a juvenile or not'. It may be pointed out that in Sunil Das (supra), the Calcutta High Court was concerned with the Juvenile Justice Act, 1986. Sections 8 and 32 of that Act are pari materia the provisions of Section 7 and 49 of the present Act.

13. Although the learned Counsel for the parties did not make any reference to the other decision, there is a decision of this Court in Mohd. Lais v. State which has dealt with a similar situation. In Mohd Lais (supra) it was contended that the Sessions Judge can exercise powers of the Board in view of the provisions of the Section 7(3) of the Juvenile Justice Act, 1986 (which is identical to the provisions of Section 6(2) of the said Act). It was contended that in terms of expression 'or otherwise', the learned Additional Sessions Judge while dealing with an application for bail on behalf of the petitioner conducted an inquiry under Section 32 of the Juvenile Justice Act, 1986 and determined the age of the petitioner. It was the contention of the learned counsel that since on the basis of such inquiry held by the learned Additional Sessions Judge, a conclusion that the petitioner was a juvenile had been arrived at, the Juvenile Justice Board had no jurisdiction to conduct the inquiry afresh. Interestingly, in support of the Page 2883 submissions one of the decisions relied upon by the counsel in that case was that of Sunil Das (supra). The learned Counsel appearing for the State in that case however argued that under Section 7(3) of the Juvenile Justice Act, 1986 the Court of Session could exercise the powers conferred on the Board only when the proceedings of a case came before it in appeal or revision or in connection with any other proceedings under the Act. The learned Single Judge agreed with the submission made by the counsel for the petitioner that a further inquiry was not called for after the Sessions Judge had concluded that the petitioner was a juvenile. The Court held as under:

8. I have given my thoughtful consideration to the facts of the case and arguments advanced by the learned Counsel for the parties and I am of the view that the order dated 26th June, 1992 passed by the learned Additional Sessions Judge holding that the petitioner was juvenile, is valid and legal as the same has been passed by the learned Additional Sessions Judge in exercise of powers conferred upon him under Section 7(3) of the Act. I do not find any force in the submissions made by the learned Counsel for the State that such an order could be passed by the Court of Session only when the proceeding comes before the said Court in appeal or revision. The words 'or otherwise' clearly show that the learned Additional Sessions judge could pass such an order in a proceeding even other than appeal or revision before, him. I find support in the view taken by me from the decision of Calcutta High Court in the case of Sunil Das (supra). In this case a learned Single Judge of Calcutta High Court held that the learned Sessions Jude by embarking on an inquiry about the age of the petitioners instead of referring the matter to the Juvenile Court at that stage did nothing wrong and rather he adopted the correct procedure.

9. As a result of the above discussion the order dated 13th July, 1992 passed by the Court of Juvenile Justice directing fresh inquiry under Section 32 of the Act is set aside. The learned Court of Juvenile Justice is, however, directed to hear the application of the petitioner for bail afresh keeping in view the order dated 26th June, 1992 passed by the learned Additional Sessions Judge whereby it was held that the petitioner was juvenile at the time of commission of offence.

The petition stands disposed of.

14. In view of the decision of this Court in the case of Mohd. Lais (supra) as well as of the Calcutta High Court in Sunil Das (supra) there is no doubt that the learned Additional Sessions Judge had the power and it was well within his jurisdiction to determine the age of the accused Hasan Ali. This view is further fortified by referring to the decision of the Supreme Court in Ramdeo Chauhan v. State of Assam wherein it observed that even in the absence of an enquiry under the Act, the Sessions Court, after the case is committed to it has the power to make an enquiry and determine the age of the accused if it considers it necessary in the interests Page 2884 of justice or a prayer is made in that behalf. However, if one reads the decision in the Sunil Das (supra) carefully, one finds that there is a suggestion that even if the opinion of the Sessions Court is that a person before it is a juvenile and the juvenile is sent to the Juvenile Justice Board, it would still be incumbent upon the Juvenile Justice Board to hold an inquiry under Section 32(1) of the Juvenile Justice Act, 1986 (which is similar to Section 49 of the said Act). To my mind, the key lies in determining whether the Sessions Court merely formed an opinion or recorded a definitive finding with regard to the age of the accused. If it was merely an opinion then it would be open to the Juvenile Justice Board to conduct an inquiry into the age of the person who is apparently a Juvenile under Section 49 of the said Act. However, if the Sessions Court has returned a definite finding with regard to the age of the accused based upon an inquiry conducted by it then it would not be open to the Juvenile Justice Board to conduct an inquiry afresh under Section 49 of the said Act.

15. In the facts of the present case, it is apparent that the order dated 13.10.2004 passed by the learned Additional Sessions Judge was not merely an expression of an opinion to say a recording of a finding that the accused Hasan Ali was aged about 16 years and 25 days on the date of the presentation of the challan. This finding was apparently based on the report of the Inspector B.S. Ahlawat that the date of birth of the accused has been confirmed as 5.1.1988 from the hospital record. It was also based on the radiological examination conducted on 5.6.2004 wherein the opinion rendered was that the accused Hasan Ali was aged between 16 to 18 years. Therefore, in my view, the conclusion arrived at by the learned Additional Sessions Judge on 13.10.2004 was not a mere expression of an opinion with regard to the age of the accused Hasan Ali but was a definite finding indicating that the said accused was a juvenile. In such situation, no further inquiry could be undertaken by the Juvenile Justice Board under Section 49 of the said Act. This is exactly what has been held by the Juvenile Justice Board in the impugned order and, therefore, there is no infirmity in the same.

16. It must be mentioned that the finding of the learned Additional Sessions Judge with regard to the age of an accused is final insofar as the Juvenile Justice Board is concerned, but this does not mean that it is not open to challenge before a superior Court. In the present petition, however, the order dated 30.10.2004 of the learned Additional Sessions Judge wherein this finding is recorded, has not been challenged and, it is only the order passed by the Juvenile Justice Board which is challenged before this Court.

The Revision Petition is dismissed.