Delhi High Court
Mohd. Wasim vs State on 9 December, 2011
Author: S.Ravindra Bhat
*IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON: DECEMBER 09, 2011
+ CRL. APPEAL No. 1008/2011
MOHD WASIM ..... Appellant
Through Mr. R.M. Tufail with Mr. Vishal Sehispal, Advs.
versus
STATE ..... Respondent
Through Mr. Sanjay Lao, APP
AND
+ CRL.A. 1180/2011
MOHD SHAHNAWAZ @ TARIK ..... Appellant
Through None
versus
STATE ..... Respondent
Through Mr. Sanjay Lao, APP
AND
+ CRL.A. 1245/2011
MOHD. TANVEER ..... Appellant
Through Mr. S.B. Dandapani, Adv.
versus
STATE (GOVT. OF NCT) DELHI ..... Respondent
Through Mr. Sanjay Lao, APP
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MS. JUSTICE PRATIBHA RANI
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
Crl. M.A. No. 9630/2011 in Crl. Appeal No. 1008/2011
1. This is an application seeking enquiry in terms of Section 7-A of Juvenile Justice (Care and Protection of Children) Act, 2000. The applicant was convicted for the offence punishable under Sections 364-A/506/120-B IPC.
2. By an order dated 31st October, 2011, after issuing notice, the Court had required the applicant's father (in this case) to furnish the following particulars:-
(1) the number of children, the sequence of their births and their approximate dates and/or years of birth;
(2) copies of Ration Card or any other documents, revealing the number of family members and their relative ages, their places of birth, date of marriage of the appellant's parents;
(3) any other proof of date of birth, such as the School Certificate, Voter ID Card (including the appellant's parents as well as other siblings' details). These were to be in an affidavit and which had to also enclose the relevant documents adverted to by it.
3. On the subsequent date of hearing, the learned counsel had stated that he had instructions to withdraw the application. This Court at that time had required that an affidavit (of the applicant) be filed in this regard. Now, the applicant has filed an affidavit which inter alia states as follows:-
"1. That I am the appellant in this case and conversant with the facts and circumstances of the case and hence I am competent to swear the present affidavit.
2. That my parents do not have any documentary proof in their possession showing my age. Therefore I want to withdraw my application under Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, bearing Criminal M. No. 9630/2011.
3. That the contents of the present affidavit have been read over to me in my vernacular language and the same have been understood by me."
4. It is evident from the above that the applicant is clear in his mind that since the Court desired certain particulars from him and he is unable to provide them, he wishes to withdraw the application. However, the Court sees the issue differently. Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 reads as follows:-
"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 recognized 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 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."
5. A facial reading of the above provision would show that the Court is under a duty to hold an enquiry once the applicant claims that he was a juvenile as on the date of incident. In order to further the legislative intention of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and to guide the courts, Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 was framed. The material portion of this Rule reads 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."
6. The above Rule mandates the sequence which the Courts have to adopt while determining the age of an applicant and deciding whether he was a juvenile on the date of incident. Clause (i), (ii) and (iii) of Rule 12(3)(a) mandate that documentary evidence of a particular kind have to be firstly taken into consideration and it is only thereafter, that the Court can take recourse to Rule 12(3)(b) and direct the necessary medical tests.
7. A large number of applications have been received by this court in pending as well as fresh appeals where the accused/appellants have claimed that they were juvenile as on the date of incidents. In a majority of these, the applicants due to poverty, ignorance or lack of education or a combination of all of them do not furnish any particulars. These have posed dilemmas to the Courts. There appears to be no uniformity in practice in the nature of pleadings required in such applications. In the circumstances, we hereby direct that applications under Section 7-A filed before this court should either contain or be supported by affidavits containing relevant information such as:-
(i) the names, place of residence and birth of the party and his parents;
(ii) the number of children, sequence of their births and their approximate dates and/or years of births, (of the parents of the applicant). This would include information as to both living and deceased children so as to assist the Courts in their task;
(iii) Copies of any of the following documents such as:-
(a) Ration Card;
(b) Voter ID Card or any other extracts;
(c) Extract of Village record or registers which may or may not include the particulars of the children but would have a bearing on fixing their age and date of birth; and
(d) any other proof of date of birth such as Village or Taluka or District School Certificate, or Voter ID Card of any family member which disclose their date of birth or age and so on.
The above directions would apply to applications under Section 7-A of the Juvenile Justice Act, and shall be suitably incorporated in the form of practice directions and possible amendment of the Rules. The Registry shall however take care that absence of some particulars should not lead to injustice; the application or affidavit should contain at least some particulars.
8. Having regard to the latest affidavit filed by the applicant in this case, we are of the opinion that this is an appropriate case where the enquiry would have to proceed in terms of Rule 12(3)(b) of Juvenile Justice (Care and Protection of Children) Rules, 2007. We, therefore, direct that the concerned trial court should hold an enquiry. It is also open for the trial court after recording the statement of the applicant and others including and/or near relatives, to independently take steps for summoning any of the documents mentioned above and thereafter proceed further (if necessary), to direct medical examination including ossification test of the applicant. The enquiry shall be completed within eight weeks. The applicant shall be produced before the trial court on 15th December, 2011. The trial court record shall be sent back for this purpose and returned on conclusion of enquiry, with the report to this Court. This court shall consider the report of the trial court on 27th February, 2012 along with Crl. Appeal Nos. 1180/2011 and 1245/2011.
A copy of this order be sent to the Registrar General for necessary action/compliance of the directions passed by this Court in para-7 of this order.
S. RAVINDRA BHAT (JUDGE)
PRATIBHA RANI
(JUDGE)
DECEMBER 09, 2011
(Sd)
