Delhi High Court

Dany @ Ravi vs State on 25 September, 2012

Author: Sanjiv Khanna

$~4.
*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     CRIMINAL APPEAL No.513/2012
                                     Date of decision: 25th September, 2012


        DANY @ RAVI                                          ..... Appellant
                               Through Mr. Hans Raj Singh & Mr. Rajendra
                               Singh, Advocates.

                      versus


        STATE                                              ..... Respondent
                               Through Mr. Sanjay Lao, APP for the State
                               along with Inspector V.N. Jha, ATO/S.
                               Rohini.

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

SANJIV KHANNA, J. (ORAL)

Learned Additional Public Prosecutor prays for and is granted

permission to place on record status report.

2. As per the said status report, a detailed investigation and

verification was done and it has been ascertained that the appellant

Dany @ Ravi was educated and had studied in MCD Primary Co-

Education School, Motia Khan, Pahar Ganj, New Delhi-110055 from

1st May, 1995 till 1st April, 2002 from class Ist to class Vth. At the

time of admission, his date of birth as disclosed and as per the school

records is 4th April, 1990. Certificate issued by the school principal is

enclosed with the report.

3. The appellant was earlier involved and was facing prosecution in

FIR No. 18/2007, Police Station Rohini, under Section 308/34 IPC. In

the said case, verification/inquiry was held. As per documents placed

on record, a medical board was constituted for ascertaining the age of

the appellant. The Medical Board on the basis of X ray of shoulder,

elbow, pelvis with B/L hip and right hand with wrist and other material

referred to therein had opined that the appellant herein was between

16-18 years as on 24th January, 2007. The offence subject matter of

FIR No. 18/0207 was committed on 1st May, 2007 and accordingly the

appellant was held to be less than 18 years of age at the time of

commission of offence. He was declared juvenile and was tried under

Juvenile Justice (Care and Protection of Children) Act, 2000. The

appellant was acquitted in the said case vide order dated 27th July, 2009

passed by the Juvenile Justice Board.

4. The appellant is also facing prosecution in FIR No. 329/2006

dated 11th April, 2006 under Section 324/34 IPC. The said prosecution

proceedings are pending before the Metropolitan Magistrate Mr.

Dharmender Singh and the next date of hearing is 12th October, 2012.

5. In the present case, the offence in question was committed on 9th

January, 2008. As per the date of birth recorded in the school and as

per the certificate issued by Principal of the MCD Primary Co-

Education School, Motia Khan, Pahar Ganj, New Delhi-110055, the

appellant's date of birth is 4th April, 1990. In view of the aforesaid

position, on the date when the alleged offence was committed, the

appellant was less than 18 years of age. In terms of Juvenile Justice

(Care and Protection of Children) Rules, 2007, in the absence of

matriculation or equivalent certificate, the date of birth certificate from

the school other than play school, which was first attended, is

determinative in deciding whether or not the appellant was juvenile on

the date when the offence was committed. Thus, in view of the

certificate issued by the Principal, MCD Primary Co-Education

School, Motia Khan, Pahar Ganj, New Delhi-110055, it has to be held

that the appellant Dany @ Ravi was a juvenile on the date of the

offence.

6. The Supreme Court in Ashwani Kumar Saxena versus State of

M.P., Criminal Appeal No. 1403/2012 decided on 13th September,

2012, has examined and elucidated upon Section 7A and Rule 12 and

observed:-

"32. Consequently, the procedure to be followed under the J.J. Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules. We cannot import other procedures laid down in the Code of

Criminal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the court exercising powers under section 7A of the Act. Many of the cases, we have come across, it is seen that the Criminal Courts are still having the hangover of the procedure of trial or inquiry under the Code as if they are trying an offence under the Penal laws forgetting the fact that the specific procedure has been laid down in section 7A read with Rule 12.

33. We also remind all Courts/J.J. Board and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate etc. mentioned in Rule 12 (3) (a) (i) to

(iii). The courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection.

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. XXXXX

38. XXXXX

39. XXXXX

40. XXXXX

41. XXXXX

42. XXXXX

43. The Court in Babloo Parsi v. State of Jharkhand and Another [(2008) 13 SCC 133] held, in a case where the accused had failed to produce evidence/certificate in support of his claim, medical evidence can be called for. The court held that the medical evidence as to the age of a person, though a useful guiding factor is not conclusive and has to be considered along with other cogent evidence. This court set aside the order of the High Court and remitted the matter to the Chief Judicial Magistrate heading the Board to re-determine the age of the accused.

44. In Shah Nawaz v. State of Uttar Pradesh and Another [(2011) 13 SCC 751], the Court while examining the scope of Rule 12, has reiterated that medical opinion from the Medical Board should be sought only when matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended or any birth certificate issued by a Corporation or a municipal authority or a panchayat or municipal is not available. The court had held entry related to date of birth entered in the mark sheet is a valid evidence for determining the age of the accused person so also the school leaving certificate for determining the age of the appellant.

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."

7. In view of the aforesaid position and in terms of Rule 7A of the

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

appellant being a juvenile, is forwarded to the Juvenile Justice Board

for appropriate orders. The sentence awarded to the appellant is set

aside. The appellant will be produced before the Juvenile Justice

Board on 28th September, 2012.

8. Along with the copy of this order, electronic paper book of the

record of the trial court as well as this Court will be forwarded to

Juvenile Justice Board. The appellant will be also produced before the

Juvenile Justice Board on the said date. Copy of this order will also be

sent to Mr. Dharmender Singh, Metropolitan Magistrate, where legal

proceedings pursuant to FIR No.329/2006 are pending.