Praveen Nagar vs State Nct Of Delhi
2012 Latest Caselaw 823 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

+                             Crl. Rev. P. No.335/2011

                                                  Date of Decision: 07.02.2012

Praveen Nagar                                               ......Petitioner
                              Through:     Mr. Joginder Tuli and Mr. Tarun
                                           Nanda, Advocates

                                     Versus

State NCT of Delhi                                         ...... Respondent
                              Through:     Mr. M.N. Dudeja, APP for State
                                           Ms. Dimple Vivek, Advocate for
                                           complainant

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


M.L. MEHTA, J. (Oral)

1. The petitioner has assailed the order dated 12.7.2011 passed by learned ASJ in appeal under Section 52 of Juvenile Justice (Care and Protection of Children) Act, 2000 against the order dated 13.12.2010 of Juvenile Justice Board (JJB) in case FIR No.88/2010 under Sections 302/364 IPC registered at Police Station Sonia Vihar.

2. The petitioner was facing trial before the JJB as juvenile. The complainant had filed an application disputing the juvenility of the petitioner and for his ossification test. The JJB held that as in an earlier case against the petitioner vide FIR No.202/2008 Police Station Khajuri Khas, it had declared him as juvenile and so the same could not be reviewed by it. Taking the said declaration regarding the petitioner to be a juvenile, the JJB rejected the

application of the complainant for conducting ossification test of the petitioner in order to determine his age afresh. The said application was filed by the complainant on the premise that there was no reliable evidence adduced by the petitioner to ascertain his age. It was the plea of the complainant that the petitioner was not a juvenile and his having been declared as juvenile in the earlier case FIR No.202/2008 Police Station Khajuri Khas was not correct and so his ossification test was required to be done in order to ascertain his age.

3. Since the JJB disallowed the request of the complainant for ossification test of the petitioner, the complainant took the matter in appeal before the learned ASJ who vide the impugned order directed ossification test of the petitioner and also directed JJB to conduct a fresh enquiry to determine his age. The learned ASJ in para 28 of the impugned order observed as under:

"Juvenile Justice Board is directed to conduct fresh inquiry to determine the age of respondent no.2 after seeking medical opinion from duly constituted medical board and also providing opportunities to both the parties to lead fresh evidence if they so desire, within 30 days on receipt of this order. In case age of juvenile in conflict with law is not found to be below 18 years on the date of offences on the basis of any conclusive proof in the light of aforesaid observation, Juvenile Justice Board shall be at liberty to pass any fresh order stating the age and declaring the status of juvenility."

4. The petitioner being aggrieved of this part of the impugned order has filed the instant petition before this Court.

5. I have heard learned counsel for the petitioner as also learned counsel

for the complainant and learned APP for the State and perused the record including that of JJB in FIR No.202/2008.

6. Vide the order dated 24.2.2010, JJB in case FIR No.202/2008 PS Khajuri Khas declared the petitioner as juvenile. Before arriving at this finding, the JJB conducted enquiry and in the process recorded statements of four witnesses as CW1 to CW4. The operative part of the order of JJB is under:

"In this matter four witnesses have been examined in respect of age of the child.

CW1 has produced the record of class 9th of the child. CW2 has also proved the record of his class 9th, CW4 has proved the record of class 8th. CW1 again appeared today and said that the child had appeared in class 10th examination but he had compartment and that he could not pass his 10th class. He further said that the date of birth of the child, as per school record is 17.12.1992.

All the four CWs have proved the date of birth of the child as 17.12.1992. If the child would have passed 10th class, he would have certificate of class 10th mentioning the same date of birth. The offence is of the year 2008 the child was below 18 years of age at the time of commission of offence. He is declared juvenile for the purpose of JJ Act and for present inquiry also."

7. It would be seen from above that in the first para of the aforesaid order, there is mention of three witnesses viz. CW1, CW2 and CW4, whereas in the second paragraph it is recorded that all the four witnesses have proved the date of birth of the petitioner as 17.12.1992. The learned counsel for the

complainant drew my attention to the testimony of CW3. This witness was shown School Leaving Certificate Mark 'A' which was produced by the petitioner. The witness stated that this certificate has not been issued from their school and the same does not bear the signatures of the Principal. He denied that the petitioner had studied in their school. He stated that this Mark 'A' pertains to the registration number 4125 and that as per their record this registration number related to one Pooja Rani daughter of Mahesh Chand who was admitted in the school on 4.1.1993. From the statement of CW1, it would be noted that this Mark 'A' was not in respect of petitioner. It is also noted that the date of birth as shown in Mark 'A' was 17.12.1992. Since this registration number 4125 was not in respect of the petitioner, but Pooja, this Mark 'A' showing the date of birth to be 17.12.1992 apparently did not relate to petitioner. The JJB seems to have overlooked this aspect and proceeded to record that all the CWs including CW3 have proved the date of birth of the petitioner to be 17.12.1992.

8. In the instant case, the question for determination of the age of the petitioner has arisen because of his involvement in a criminal case. 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 Rules prescribes 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.

9. In such a case, Clause (3) requires the Court or the Board, as the case may be, to conduct an enquiry by seeking evidence of the type as mentioned in Sub Clause (i), (ii) & (iii) of Clause (a) thereof as noted above. The evidence which was contemplated to be considered for conducting an enquiry comprised of Matriculation and equivalent certificate, if available, and in the absence thereof, the date of birth certificate from the school first attended and in the absence thereof, the date of birth certificate issued by the municipal corporation or municipal authority or a panchayat. Clause (d) of the said Rule provides that it was only in the absence of either of the above that the opinion of the Medical Board could be sought. It also provided that if exact assessment of the age could not be done, the benefit was to be given to the child or juvenile by considering his/ her age on lower side within the margin of one year. However, in such a case, the reasons were required to be recorded for giving such benefit.

10. With this procedure for conducting an enquiry, learned counsel for the complainant sought to submit that JJB could not have taken the age of the petitioner as that was declared in FIR No.202/2008 Police Station Khajuri Khas. Since the JJB had already declared the petitioner to be a juvenile in FIR No.202/2008 PS Khajuri Khas, apparently there did not appear to be any error in accepting the same to be in FIR No.88/2010. What has been noticed in view of above discussion is the fact of overlooking by JJB in the enquiry that was conducted in FIR No.202/2008 and not in the present case. Since JJB of its own could not have overruled its finding of earlier enquiry and the same has apparently resulted in miscarriage of justice, I am constrained to upset the said finding.

11. In view of foregoing discussions since there was no proper enquiry

conducted as regards the age of the petitioner, directing him for ossification test by learned ASJ was misplaced. As per Rule 12(3), the enquiry was to be conducted as mentioned in sub clause (i), (ii) and (iii) of Clause (a) thereof as noted above. Clause (d) of the said Rule could be pressed into only in the absence of evidence as provided either in sub clauses (i), (ii) and (iii) of clause (a). That being so, the ossification test under clause (d) as directed by learned ASJ was not called for at this stage in the absence of there being no specific findings by JJB in this regard.

12. Having regard to the facts and circumstances and in view of my above discussion, the impugned order is set aside and the matter is remanded back to JJB with the directions to conduct an enquiry afresh keeping in view the evidence of all CWs and then record a finding of fact as regards to the age of the petitioner. It is clarified that in case JJB was unable to come to any conclusion based on the testimony of CW1 to 4, it would be entitled to go ahead with the ossification test and then pass a reasoned order.

13. Since sufficient time has already elapsed and the trial has considerably delayed, JJB must complete the enquiry as aforesaid within two months from today.

14. The petition stands disposed of accordingly.

15. The parties are directed to appear before JJB on 25.2.2012 at 2 pm.

M.L. MEHTA (JUDGE) February 07, 2012 rd