Delhi High Court

Vikas @ Sonu vs State Of Nct Of Delhi on 9 November, 2011

Author: M. L. Mehta

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                       Crl. MC No.1108/2010

                                      Reserved on: 02.11.2011
                                    Pronounced on: 09.11.2011

VIKAS @ SONU                                      ...... Petitioner

                        Through:    Mr. Vikram Singh Saini and
                                    Mr. Sunil Raghav, Advocates

                              Versus

State of NCT of Delhi                             ...... Respondent

                        Through:    Ms. Fizani Husain, APP for
                                    State with Insp. Sanjay Kumar


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                   Yes
2.     To be referred to the Reporter or not ?        Yes
3.     Whether the judgment should be reported
       in the Digest ?                                Yes

M.L. MEHTA, J.

1. This is a petition under Section 482 Cr.P.C preferred by the

petitioner for quashing of the impugned order dated 23.1.2010

passed by learned ASJ whereby the petitioner's application for

declaring him juvenile under Amended Section 7(A) of the Juvenile

Justice Act was dismissed and his claim of juvenility was rejected.

2. The petitioner along with other co-accused was involved in

a case under Section 365/302/34 IPC. The petitioner claimed to be

juvenile at the time of alleged commission of offence. The other

co-accused Mohar Pal also claimed to be a juvenile. Both of them

have filed applications for transferring their case to Juvenile

Justice Board claiming themselves to be juvenile. The petitioner

claimed to be aged about 15 years and 2 months at the time of

occurrence of alleged offence and having studied up to 5th class at

Gomti Prathmik Vidyalaya, Attroli, Aligarh. In support of these

contentions, he filed school leaving certificate issued by the

school and counter signed by the District Basic Education Officer,

Aligarh. The Magistrate sent the said certificate for verification as

per which the same was reported to be forged. The detailed

report was given by District Basic Education Officer, Aligarh dated

28.3.2009. Thereafter, the concerned MM directed for ossification

test of the petitioner in a government hospital and as per which

he was reported to be aged more than 20 years. The verification

report was also sought from the SHO concerned who vide report

dated 2.9.2009 given by constable Inderraj reported the date of

birth of the petitioner to be 4.9.1993 as per school certificate. The

certificate issued by the Principal stating the date of birth of the

petitioner to be 4.9.1993 was also annexed along with the report.

The learned ASJ while replying upon the verification report dated

28.3.2009 issued by the District Basic Education Officer, Aligarh

and discarding the verification report of constable Inderraj

recorded as under:

"v) The school leaving certificate of the accused Vikas Chauhan @ Sonu was verified on two occasions. The verification report dated 26.3.2009 issued by Dr. Mukesh Kumar Singh, District Basic Education Officer, Aligarh is appears to be genuine and more authentic. In the said report, it is stated that the school leaving certificate submitted by the accused Vikas Chauhan @ Sonu is forged. The District Basic Education Officer, Aligarh passed his findings on the basis of inquiries made by Deputy Basic Education Officer-III namely Shri Jagdish Prasad Pachori. Report is detailed one where all the records have been examined. The subsequent report given by the constable Indu Raj does not inspire any confidence as it is based on the school records maintained in Gomti Prathmik Vidyalaya which have already been found not correct by the District Basic Education Officer, Aligarh. As per the ossification test, the accused. Vikas Chauhan @ Sonu is also found to be more than 20 years. After considering all facts, the application filed by the Vikas Chauhan @ Sonu is dismissed. "

3. However, with regard to the school leaving certificate

of co-accused Mohar Pal who had also claimed to be a juvenile

with his date of birth to be 2.1.1993 as per the school leaving

certificate duly verified and whose age was also reported to be 20

years as per the ossification test, the learned ASJ recorded that,

"The correctness of the entry recording the age of accused Mohar

Pal is seriously disputed by the State and accordingly it will be

appropriate to ask the accused Mohar Pal to lead evidence in

support of his actual date of birth/age." Accordingly the matter

was adjourned for recording the evidence on behalf of co-accused

Mohar Pal to prove his assertion of being a juvenile.

4. From the above, it is seen that on the one hand there was a

report submitted by the SHO verifying from the Principal of the

school about the age of the petitioner being 4.9.1993 as per

school record and on the other hand there was a report of District

Basic Education Officer dated 28.3.2009 stating therein that the

school leaving certificate issued by the principal of the school

showing the date of birth of the petitioner to be 4.9.1993 to be a

forged and fabricated document. Then there was also a report of

ossification test mentioning the age of the petitioner to be over

20 years. Learned ASJ proceeded to record that the report of

District Basic Education Officer appears to be genuine and more

authentic than the report of constable Inder Raj submitted by the

SHO. The submission of learned counsel for the petitioner was

that there was no reason or basis for learned ASJ to rely upon the

report of District Basic Education Officer and to discard the

verification report submitted by the SHO after verifying the date

of birth from the principal of the school. He also submitted that an

inquiry was required to be conducted by the concerned court

before recording the finding as regards the juvenility of the

petitioner. The learned counsel for the petitioner relied upon the

judgment of this Court in Puneet Vasudeva v State [2009(2)

JCC 1415].

5. Undisputedly, a delinquent juvenile has to be dealt under

the provisions of Juvenile Justice Act, 1958, which are curative

and reformative in nature than punitive. The benefit of provisions

of this Act are available to a juvenile only i.e. a boy who had not

attained the age of 16 years or a girl who has not attained the

age of 18 years on the date of occurrence thereby granting them

a special status as a class. That being so, the age of the accused

persons on the date of occurrence has its own importance.

Section 54 of this Act provides that an inquiry ought to be made

under any of the provisions of this Act. This section reads as

under:

"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)."

6. The above section provides that the procedure laid down

under the Code of Criminal Procedure in summoning cases shall

be followed as far as may be. The procedure for trial in

summoning cases is provided in Chapter XX of the Code.

7. Section 14 of the Act makes it obligatory to make an inquiry

about the age of the accused and for that purpose to take such

evidence as may be necessary. Rule 12 of the Juvenile Justice

(Care & Protection) Rules, 2007 also prescribes for the procedure

to be followed in deciding juvenility. From the scheme of

provisions of this Act, it would be seen that a due inquiry is

required to be conducted by the Magistrate by taking such

evidence as may be deemed necessary in the manner as

prescribed for trial in summoning cases under the Code for

arriving at a finding as regards the accused being a juvenile or

not. In other words, the age is required to be determined on the

basis of evidence that may be adduced and other materials in

support thereto.

8. From the aforesaid provisions, it is also seen that there

cannot be any hard and fast rule as to what in the given case

would be the evidence to be sufficient to arrive at such a finding.

All will depend upon the nature and the quality of the evidence

that may be presented before the Court for recording such

finding. In a situation like the one in hand where there is a school

record being relied upon by the school as correct, but being

treated by the District Basic Education Officer as forged, the right

course was not to rely upon the one and discard the other, but to

arrive at the truth of the matter by examining the concerned and

relevant witnesses with the record. This was all the more

necessary in view of there being large difference of five years

about the age of the delinquent as per the ossification test report.

Such an inquiry could only be held by recording oral evidence

with right of cross examination to be given to the opposite side.

Since the petitioner was claiming to be a juvenile, the onus was

primarily upon him to prove his claim by examining his witnesses

who of course shall be subject to the opportunity of cross

examination by the opposite side. The learned ASJ seems to have

chosen to rely upon the report of the District Basic Education

Officer even without examining him and affording any opportunity

of cross examination to the petitioner. In the case of Ravinder

Singh Gorkhi v State of U.P. [2006(2) JCC 856], with regard to

the manner of proving the entry regarding date of birth in the

school register, the Supreme Court held as under:-

22. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms f Section 35 of the Evidence Act, the register maintained in ordinary course of business by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder: (i) it should be in the nature of the entry in any public or official register; (ii) it must state a fact in issue or relevant fact; (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and