Delhi High Court
Deepak Kumar vs State on 12 March, 2012
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 156/2011 & Crl.M.A. No. 4096/2011(Stay)
% Reserved on:5th March, 2012
Decided on: 12th March, 2012
DEEPAK KUMAR ..... Petitioner
Through: Mr. M.L. Sharma & Mr. P.S. Yadav,
Advocates
versus
STATE ..... Respondent
Through: Mr. Mukesh Gupta, APP for the State.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By the present petition, the Petitioner challenges the order dated 16th
March, 2011 passed by the learned Addl. Sessions Judge declaring him not
to be a juvenile on the date of alleged incident and thus dismissing the
application of the Petitioner seeking the benefit of juvenility according to
Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules,
2007(in short „JJ Rules).
2. Learned counsel for the Petitioner contends that in view of the school
certificate having been verified, the learned Trial Court ought to have relied
the same in terms of Rule 12 of the J.J. Rules and should not have got the
ossification test of the Petitioner conducted.
3. Learned APP for the State on the other hand contends that the
Petitioner had given two certificates. As regards the certificate issued by the
Municipal Corporation of Delhi (MCD), no entry was found. Thus, the birth
certificate No. 920 dated 30th December, 1993 filed by the Petitioner was a
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forged document. Further the Petitioner was admitted in Shri Bhopal Singh
Public Junior High School, Bagpat, Uttar Pradesh directly in the fifth
standard where his date of birth was mentioned as 4th December, 1993. This
date of birth was mentioned without any corresponding municipal record and
hence the learned Trial Court rightly rejected the same and got the
ossification test conducted. As per the ossification test, the age of the
Petitioner was opined to be between 19 to 20 years and hence on the date of
incident, the Petitioner was over 18 years of age.
4. I have heard learned counsel for the parties. Briefly, the facts of the
case are that FIR No. 121/2010 under Section 376 IPC was registered at PS
Bhalswa Dairy. The offence allegedly took place in the intervening night of
8th-9th August, 2010 and the Petitioner is in judicial custody since 1 st
September, 2010. According to the Petitioner, he is a juvenile. As per the
school leaving certificate and the birth certificate issued by the MCD, the
Petitioner was born on 4th December, 1993, so on the date of alleged incident
he was 16 years and 9 months old and thus entitled to the benefit of
juvenility. The Petitioner filed an application on 12th January, 2011 seeking
directions to verify the school leaving certificate as well as the date of birth
certificate issued by the MCD. The investigating officer verified the school
leaving certificate from the first attended school. The date of birth was
found to be correct. However in the MCD no such record was found
available and thus the Trial Court directed Petitioner‟s father to place on
record the original birth certificate issued by the MCD. Since Petitioner‟s
father could not bring the original MCD certificate, the Petitioner filed
another application dated 19th February, 2011 under Section 7(A) of the
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Juvenile Justice (Care and Protection) Act, 2000(in short J.J. Act) and Rule
12 of the J.J. Rules for conducting the ossification test to determine the
juvenility. The medical board of Babu Jagjivan Ram Hospital examined
the Petitioner on 25th February, 2011 and opined that the estimated age of the
Petitioner was between 19 to 20 years.
5. By the impugned order, the learned Trial Court held that in view of the
ossification test, the Petitioner was not a juvenile and hence dismissed the
application. No doubt, the Petitioner has not produced the original MCD
certificate. Moreover, from the verification it was found that the purported
photocopy of the MCD certificate relied upon by the Petitioner was an
incorrect document as no record was found in this regard. However, the
moot question in the matter is whether the learned Trial Court conducted a
proper enquiry to determine the age of the Petitioner or not. It may be noted
that the learned Trial Court only called for a verification report from the
school where the Petitioner studied. No enquiry in regard to this certificate
was conducted. No statement of the concerned Principal or the investigating
officer, who conducted the verification, was recorded to ascertain the truth.
In a case like this where the MCD certificate was found to be incorrect, the
learned Trial Court ought to have summoned and examined the Principal or
the concerned officer of Shri Bhopal Singh Public Junior School to come to
the conclusion whether the school leaving certificate submitted by the
Petitioner can be relied upon or not. In terms of Rule 12 of the J.J. Rules,
only after the school leaving certificate was found to be not genuine or could
not be relied upon, the learned Addl. Sessions Judge could have adopted the
procedure of getting the ossification test done.
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6. Rule 12 of the JJ Rules provides:-
"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
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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.
(4) If the age of a juvenile or child or the juvenile in
conflict with law is found to be below 18 years on the date of
offence, on the basis of any of the conclusive proof specified in
sub-rule (3), the court or the Board or as the case may be the
Committee shall in writing pass an order stating the age and
declaring the status of juvenility or otherwise, for the purpose of
the Act and these rules and a copy of the order shall be given to
such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of section 7A, section 64 of the Act
and these rules, no further inquiry shall be conducted by the
court or the Board after examining and obtaining the certificate
or any other documentary proof referred to in sub-rule (3) of
this rule.
(6) The provisions contained in this rule shall also apply
to those disposed off cases, where the status of juvenility has
not been determined in accordance with the provisions
contained in sub-rule (3) and the Act, requiring dispensation of
the sentence under the Act for passing appropriate order in the
interest of the juvenile in conflict with law"
Crl. Rev.P.156/2011
7. In Arnit Das v. State of Bihar, (2000) 5 SCC 488, the Hon‟ble
Supreme Court held that while dealing with a question of determination of
the age of an accused, for the purpose of finding out whether he is a juvenile
or not, a hyper-technical approach should not be adopted while appreciating
the evidence adduced on behalf of the accused in support of the plea that he
is a juvenile and if two views may be possible on the same evidence, the
Court should lean in favour of holding the accused to be juvenile in
borderline cases.
8. In Ravinder Singh Gorkhi v. State of U.P., (2006) 5 SCC 584 with
regard to the entries made in School Leaving Certificate, their Lordship‟s
observed as under:-
"17. The school-leaving certificate was said to have been
issued in the year 1998. A bare perusal of the said certificate
would show that the appellant was said to have been admitted
on 1-8-1967 and his name was struck off from the roll of the
institution on 6-5-1972. The said school-leaving certificate was
not issued in the ordinary course of business of the school.
There is nothing on record to show that the said date of birth
was recorded in a register maintained by the school in terms of
the requirements of law as contained in Section 35 of the
Evidence Act. No statement has further been made by the said
Headmaster that either of the parents of the appellant who
accompanied him to the school at the time of his admission
therein made any statement or submitted any proof in regard
thereto. The entries made in the school-leaving certificate,
evidently had been prepared for the purpose of the case. All the
necessary columns were filled up including the character of the
appellant. It was not the case of the said Headmaster that before
he had made entries in the register, age was verified. If any
register in regular course of business was maintained in the
school, there was no reason as to why the same had not been
produced."
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9. In the present case though there is ample evidence on record to reject
the MCD certificate produced by the Petitioner, however, no enquiry
regarding the School Leaving Certificate has been conducted by the learned
Trial Court. Neither the statement of the Headmaster nor any official of the
school has been recorded by the learned Trial Court to discard the same. In
fact, neither in the impugned order nor in the Trial Court file any reasoning
has been rendered to discredit the School Leaving Certificate. In view of
Rule 12, JJ Rules only after the School Leaving Certificate is found
unreliable, the Trial Court could have considered the ossification test.
10. In view of the facts and circumstances of the case, order dated 16 th
August, 2011 is set aside. The learned Trial Court is directed to conduct an
enquiry in terms of Rule 12 of the J.J. Rules. Only after conducting an
enquiry on the School Leaving Certificate and finding the same to be
unreliable, the learned Trial Court will resort to the report of ossification test
and come to the conclusion as to whether the Petitioner is a juvenile or not.
The parties will appear before the learned Trial Court on 26th March, 2012.
11. Petition and application are disposed of. Trial Court record be sent
back.
(MUKTA GUPTA)
JUDGE
MARCH 12, 2012
dk
Crl. Rev.P.156/2011
