Asrar @ Loveloo @ Lovely vs State
2012 Latest Caselaw 6742 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI


                                   DECIDED ON : 26th November 2012.


+     Crl.M.A.No. 1086/2011 and Crl.M.(Bail) No.1695/2010 in
      CRL.A. 1412/2010

      ASRAR @ LOVELOO @ LOVELY                 ..... Appellant
                  Through: Mr. R. M. Tufail, Mr. Vishal Raj and
                           Mr. Anwar A. Khan, Advocates

                     versus

      STATE                                               ..... Respondent
                              Through:   Ms. Richa Kapoor, APP for the State.


      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
      HON'BLE MR. JUSTICE S.P.GARG

SANJIV KHANNA, J. (ORAL)

1. This order will dispose of the application under Section 7A of

the Juvenile Justice (Care and Protection of Children) Act, 2000 ('Act' for

short) filed by the appellant claiming that he was a juvenile i.e. less than 18

years of age on the date of the alleged occurrence.

2. On the said application vide order dated 18.07.2011 a medical

board was directed to be constituted by Medical Superintendent, AIIMS at

the first instance. The said medical board submitted their report inter alia

opining that the appellant was more than 27 years of age as on 27.05.2011.

Thus as per the said report the appellant was about 20 years plus on the date

of offence.

3. This report was contested by the appellant on various grounds

including medical literature. By order dated 30.09.2011 the Division Bench

recorded that some doubt about the age of the appellant still persisted inspite

of the report. By the said order the appellant was directed to be released on

interim bail on furnishing personal bond in the sum of Rs. 20,000/- with one

surety of the like amount to the satisfaction of the Trial Court. This interim

bail was valid for a period of eight weeks and has continued from time to

time thereafter.

4. The queries raised by the appellant were referred by the court to

the medical board for their opinion and clarification. The medical board

thereafter vide their letter dated 16.12.2011 submitted their answer to the

queries raised. The said report was considered by the Division Bench and in

the order dated 17.01.2012, it was recorded that the appellant had submitted

that the clarification issued by the medical board should be read as

benefitting the appellant i.e., in his favour. The Court upon noticing several

facet, after hearing the parties, directed as under:-

"After hearing parties, we are of the opinion that the procedure to be adopted by the Court under Section 7A of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 if of an enquiry. The provision enables the Court to be flexible in its approach. If in a given case, an applicant claims to be a juvenile and a report furnished against him is sought o be contested/the contestant and the applicant seek to cross-examine the expert on the basis of relevant material, the Court may devise such procedure a sis expedient. Having regard to this fact, this Court is of the opinion that the most appropriate method to be adopted at this stage would be to require the Trial Court to conduct an enquiry as to the age of the juvenile as on the date of the incident, i.e. 28.03.2003, specifically as to the medical evidence placed on the record. If any of the parties wishes summoning of the experts or any of them, for that purpose, the Trial Court shall take suitable steps in that regard. The expert's deposition as well as the cross-examination shall be recorded and the Trial Court shall indicate/discuss it in its report. We clarify that it is open to the applicant to lead evidence, both documentary or oral as he may deem appropriate. The Trial Court is requested to complete the proceedings at its earliest convenience, and at any case within ten weeks from today. Its report shall be placed on record before the next date of hearing. The parties are directed to be present before the Trial Court on 30.01.2012. The Registry shall ensure that the original records are transmitted to the Trial Court forthwith. List before the Court on 16.04.2012."

5. Thereafter a report dated 31.03.2012 was submitted by the Trial

Court inter alia observing that the appellant was a juvenile, aged about 17

years and 4 months on the date of the occurrence. This opinion was given

after giving benefit of two years to the appellant and was solely based upon

the Ossification test report and the decisions of the Supreme Courts and the

High Courts that the Ossification Tests were not exact or precise and

advantage of upto two years can be granted to the accused.

6. The aforesaid report was considered by the Court and vide order

dated 16.05.2012, it was directed as under:-

"We had heard the applicant's application - Crl.M.A. 1086/2011, alleging that he was juvenile. On an overall consideration of the materials, we are of the opinion that to decide the issue of juvenility, it would not be appropriate in the peculiar circumstances of the case to go only by the medical evidence. There are other materials also which require to be considered. In these circumstances, it would be appropriate that further enquiry on the application under Section-7A should be conducted by the Trial Court.

Parties are directed to be present before the Trial Court which shall consider the submissions and take into account such materials as exists on the record and which may be brought on record by both the parties. The report of the Trial Court shall be furnished to this Court within 12 weeks."

7. It is clear from the aforesaid order that the Division Bench

(S.Ravindra Bhat, J. and S.P.Garg, J.) was not satisfied with the report and

felt that it was not in compliance with the directions given in the order dated

17.01.2012.

8. Now the Trial Court has submitted a report dated 31.07.2012.

In the said report, the Trial Court has come to the conclusion that the

appellant was not a juvenile on the date of the offence as he was 19 years 3

months and 18 days old on the said date. The Trial Court has held that the

appellant was admitted to the MCD Primary School, Jahangirpuri on

12.12.1990 and at the time of admission his date of birth, as mentioned by

the parents and as recorded was 05.05.84. This being the school first

attended, as per Rule 12(3)(a)(iii) of the Juvenile Justice (Care & Protection

of Children) Rules, 2007 ('Rules' for short) was binding. The Trial Court

has also referred to Voter I-card No. CRJ1217066 issued to the appellant on

01.01.2005, wherein the appellant had given his age as 21 years. As per the

ration card, his year of birth was recorded/declared to be 1983.

9. The Trial Court has rejected the contention of the appellant

relying upon the MCD birth certificate, inter alia, recording the following

findings:-

"Secondly it has been reported by the SHO Police Station Jahangir Puri (vide report dated 4.7.2012 also placed on record) and not controverted by the Ld. Counsel for the convict that during the pendency of the

appeal in the Hon'ble High Court the convict Asrar @ Lovely @ Loveloo had filed a MCD birth certificate which he claimed belonged to him bearing No. 9297 having registration No. 3493 dated 27.12.1991 in which the date of birth of the child was mentioned as 11.12.1991 but in the said certificate the name of the child was not mentioned. On the asking of the Hon'ble Court the said certificate was got verified from the Sub Registrar (Birth & Death), Civil Line Zone, MCD and it was reported that the said certificate was issued on 27.12.1991 vide registration No. 3493 in respect of a male child whose parents are Smt. Saira Banu and Sh. Mustaq Ali R/o K-378, Jahangir Puri, Delhi but the name of the child was not available in the MCD record as well as in the certificate. On further inquiry it was revealed that Asrar @ Loveloo had also filed a Crl. MC No. 571/2011 in the Delhi High Court in case FIR No. 53/10, under Section 307/34 IPC, PS Jahangir Puri for quashing the FIR wherein he had submitted the photocopy of the Election Voter I Card no. CRJ1217066 and photocopy of secondary school examination 2009 certificate of his younger brother namely Israr Ali @ Peeru in which the age of the convict was shown as 21 years as on 1.1.2005 and it was thereby disclosed that the date of birth of his younger brother Israr Ali @ Perru was 27.12.1991 and it was also thereafter revealed that in fact the Birth Certificate issued by MCD on 27.12.1991 bearing No. 9297 having registration no. 3493 was of his younger brother Israr Ali @ Peeru and not of Asrar Ali @ Loveloo the convict before this Court. This being so, in any case, the date of birth of Asrar Ali @ Loveloo would be prior to the year 1991.

10. The appellant before the Trial Court had relied upon the

certificate issued by the Pradhan and the Secretary of the Panchayat dated

12.07.2011 based upon family register of the native village wherein the date

of birth of the appellant was shown as born in the year 1987. The claim

based upon the said certificate was rejected inter alia observing as under :-

Thirdly, coming now to the certificate issued by the Pradhan and Secretary of the Panchayat on 12.7.2011 based upon family register of native village where the birth of the convict was shown to be of 1987. It has been reported by the SHO Police Station Jahangir Puri vide his report dated 4.7.2012 that the Secretary of the Gram Panchayat has verified the said family register but the copy of the family register does not show when it was updated. At the time of inquiry the convict was granted an opportunity to lead evidence in his favour which he did not do and the Panchayat record on which he has placed his reliance has not been proved by him in accordance with law. The Secretary of the Panchayat should have been called to the Court which has not been done. Even otherwise, insofar as this Court is concerned the inquiry for age determination is required to be conducted in terms of the provisions of Rule 12 Clause (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and once the record of the school first attended by the convict is available it was not necessary for this Court to call the Secretary of Gram Panchayat of its own and if it is anybody who was required to prove the same, it was the convict which he has not done. Be that as the case may be, I have also observed that the entries of this Panchayat Record show that the complete name of the convict including his nick name/ alias i.e. Asrar i.e. Loveloo has been recorded in the said family register which is rather strange because this nick name/ alias has not been found to be mentioned in any other record including the school record and it is this which raises a doubt in the mind of the Court and hence the possibility of the said family register being updated after the registration of the present case against the convict or even after his conviction, cannot be ruled out or else there was no reason why his alias

(Loveloo) would also find a mention i the said record which otherwise is not mentioned in any other record (i.e. School Record, Voter I Card or Ration Card).

11. Learned counsel appearing for the appellant has submitted that

the report/observations made by the Trial Court should not be accepted, as in

the present case, different dates of birth have been recorded. In case there is

any doubt or ambiguity, benefit must be given to the appellant.

11A Rule 12(3) of the Rules reads as under:-

"12. Procedure to be followed in determination of Age.-

           (1)    xxx xxx xxx

           (2)        xxx    xxx    xxx

(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."

12. As per the said rule, date of birth, as mentioned in the

matriculation or equivalent certificate, is to be treated as binding and final

in the enquiry to be conducted on the question of juvenility. In the absence

of matriculation or equivalent certificate, the date of birth certificate from

the school, other than a play school first attended, is determinative. In the

absence thereof, the date of birth certificate given by a corporation or a

municipal authority or a Panchayat is the determinative factor. It is only in

the absence of any of the certificates mentioned above that opinion of

medical board can be sought and thereafter the Court can determine the age

and if necessary, benefit of one year can be given.

13. The aforesaid rule was interpreted and examined by the

Supreme Court in the case of Ashwani Kumar Saxena vs. State of M.P.

(2012) 9 Scale 90 in which it has been observed as under:-

34. "Age determination inquiry" contemplated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.

35. Once the court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in subsection (5) or Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the Rule 12. Further,

Section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination.

36. Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination.

37. We have come across several cases in which trial courts have examined a large number of witnesses on either side including the conduct of ossification test and calling for odontology report, even in cases, where matriculation or equivalent certificate, the date of birth certificate from the school last or first attended, the birth certificate given by a corporation or a municipal authority or a panchayat are made available. We have also come across cases where even the courts in the large number of cases express doubts over certificates produced and carry on detailed probe which is totally unwarranted.

XXXXX XXXXX XXXXX

40. We fail to see, after having summoned the admission register of the Higher Secondary School where the Appellant had first studied and after having perused the same produced by the principal of school and having noticed the fact that the Appellant was born on 24.10.1990, what prompted the Court not to accept that admission register produced by the principal of the school. The date

of birth of the Appellant was discernible from the school admission register. Entry made therein was not controverted or countered by the counsel appearing for the State or the private party, which is evident from the proceedings recorded on 11.02.2009 and which indicates that they had conceded that there was nothing to refute or rebut the factum of date of birth entered in the School Admission Register. We are of the view the above document produced by the principal of the school conclusively shows that the date of birth was 24.10.1990 hence section 12(3)(a)(i)(ii) has been fully satisfied.

41. The Sessions Judge, however, has made a fishing inquiry to determine the basis on which date of birth was entered in the school register, which prompted the father of the Appellant to produce a horoscope. The horoscope produced was rejected by the Court stating that the same was fabricated and that the Pandit who had prepared the horoscope was not examined. We fail to see what types of inquiries are being conducted by the trial courts and the Appellate courts, when the question regarding the claim of juvenility is raised.

42. Legislature and the Rule making authority in their wisdom have in categorical terms explained how to proceed with the age determination inquiry. Further, Rule 12 has also fixed a time limit of thirty days to determine the age of the juvenility from the date of making the application for the said purpose. Further, it is also evident from the Rule that if the assessment of age could not be done, the benefit would go to the child or juvenile considering his / her age on lower side within the margin of one year.

XXXXX XXXXX XXXXX

45. We are of the view that admission register in the school in which the candidate first attended is a relevant piece of evidence of the date of birth. The reasoning that the parents could have entered a wrong date of birth in the

admission register hence not a correct date of birth is equal to thinking that parents would do so in anticipation that child would commit a crime in future and, in that situation, they could successfully raise a claim of juvenility."

14. Going by the aforesaid ratio, in the absence of matriculation or

equivalent certificate, we have to go by the date of birth mentioned and

recorded in the school first attended, other than the play school. In the

present case, we have the certificate issued by the MCD Primary School,

Jahangir Puri which shows that the appellant was admitted to Class-I on

12.12.1990 and had studied in the said school till 21.12.1991. The date of

birth mentioned and recorded in the school records was 05.05.1984. The

said date of birth under Rule 12, in the absence of matriculation or

equivalent certificate, is to be treated as binding. We do not think there is

anything on record to ignore or negate the said date of birth. As observed in

the report dated 31.07.2012, the date of birth as mentioned in the Voter I-

Card was 21 years. The date of birth as mentioned in the ration card has

been shown as 1983. The Trial Court has also referred to and examined the

certificate issued by the Pradhan and the Secretary of the Panchayat on

12.07.2011. On the said aspect the Trial Court has made several

observations as to why the said certificate should be disbelieved and not

accepted. We agree with the said observations. As per Rule 12, the date of

birth certificate issued by the Municipal Corporation can only be taken into

consideration in the absence of the date of birth issued by the school first

attended other than the play school. The appellant had attended the school

and was admitted to Class-I and studied there for one year. The date of birth

mentioned in the school certificate is, therefore, determinative and we do not

see any reason to disbelieve or ignore the same. We have already referred to

the Ossification report and it need not be again dealt with in view of the

pronouncement of the Supreme Court in the case of Ashwani Kumar

Saxena (supra).

15. In view of the aforesaid, we dismiss the present application

and observe that the appellant was not a juvenile on the date of occurrence

i.e., 28.03.2003. The appeal will be heard and decided on merits. However,

we are inclined to direct that the interim bail granted to the appellant will

continue till the disposal of the appeal. The reason is that the appellant has

not misused the said bail which has continued for a period of more than one

year. The appellant, thereafter, has not been involved in any offence. In case

the appellant is found to be involved in any other offence, it will be open to

the prosecution to file an application for cancellation of bail. The interim

order passed earlier will be treated as an order suspending the sentence till

the disposal of the appeal. The bail bond executed earlier will be re-

furnished to the Trial Court within 21 days. The appellant will also place on

record his present address and whenever he changes his address he must

inform the Public Prosecutor as well as the Court. The appellant shall also

give his present telephone number on which he can be contacted and any

changes/new telephone number will be intimated to the SHO of the police

station concerned. It will be open to the SHO/Police Officer to get in touch

with the appellant to ascertain his present address.

16. Crl.M.A.No. 1086/2011 and Crl.M.(Bail) No.1695/2010 stand

disposed of.

16. Dasti.

SANJIV KHANNA, J.

S.P.GARG, J.

NOVEMBER 26, 2012 mb