Delhi High Court
Krishan Kumar vs State & Anr. on 26 October, 2018
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 26.10.2018
+ CRL.REV. P. 311/2017
KRISHAN KUMAR ..... Petitioner
versus
STATE & ANR ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. A.U. Khan, Mr. Jeewan Chandra and Mr. S. Firoz,
Advs.
.
For the Respondents : Mr. Hirein Sharma, Addl. PP for the State with SI
Ravinder Kumar
Mr. Aakanksha Bansal, Adv. for R-2
.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 26.10.2018
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns order dated 14.09.2016 whereby the appeal
of the petitioner impugning order dated 20.02.2016 and 26.03.2016 of
the Juvenile Justice Board (JJB) declaring respondent no. 2 to be a
juvenile has been dismissed.
2. The appellate Court found that the JJB had determined the age
of respondent no. 2 on the basis of the matriculation certificate.
Reliance was placed on the decision of the Supreme Court in 'Prag
Bhati Vs. State of UP & Ors. 2016 (12) SCC 744'.
3. Learned counsel for the petitioner contends that the JJB as well
as the appellate court erred in relying on the matriculation certificate
as there were doubts on the school leaving certificate based on which
the respondent no. 2 had left the earlier school and taken admission in
the school from which she had done her matriculation.
4. Further, it is contended that JJB by its order dated 05.05.2015
had directed conduct of the ossification test on respondent no. 2 for
age determination and the medical record had shown the age of the
respondent no. 2 to be 20 - 22 years.
5. JJB in its order dated 20.02.2016 had noticed the contention of
the counsel for respondent no. 2 that she had obtained admission in 5 th
Class in Apex Public School wherein her date of birth recorded is
17.12.1998, where after it was never changed. JJB also noticed that
matriculation certificate of respondent no. 2 was produced which also
showed the date of birth as 17.12.1998.
6. For the purposes of satisfying itself, JJB directed the school
authorities to produce the complete admission record of respondent
no. 2 along with her CBSE enrolment record in 10th Class and her
result.
7. On 16.03.2016 record from the school was produced. JJB has
examined the record and noticed that in the Admission Register and
the Pasting File, date of birth of the respondent was mentioned as
17.12.1998 which corresponded with the matriculation certificate
produced by the guardians of respondent no. 2.
8. The date of commission of the offence is 25.06.2015.
Accordingly, the Board returned the finding that respondent no. 2 was
a minor on the date of commission of offence.
9. In the appeal filed by the petitioner, the appellate court noticed
Rule 12 of the Juvenile Justice (Care and Protection of Children)
Rules 2007 as also the judgment of the Supreme Court in Prag Bhati
(Supra) and rejected the appeal of the petitioner.
10. Rule 12 of the Juvenile Justice (Care and Protection of
Children) Rules 2007 reads as under:
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 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 maybe, 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 18years 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 section7A,
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.
11. In terms of the sub-Rule 12 (3), in every case concerning a
child/ juvenile in conflict with law, age determination inquiry is to be
conducted by the Board by seeking evidence, documents /record
enumerated therein.
12. Rule 12 (3) (a) lists out in order of preference the documents.
First of the same being matriculation or equivalent certificate. Only in
the absence of matriculation or equivalent certificate, the date of birth
certificate from the school (other than a play school) first attended and
in absence thereof, the birth certificate given by a corporation or a
municipal authority or a panchayat is to be looked at.
13. Only in the absence of any of the documents as mentioned
above is medical opinion or an ossification test for determination of
age is permissible.
14. Supreme Court in Parag Bhati (Supra) has held as under: -
"32. "Age determination inquiry" contemplated under
Section 7-A of the Act read with 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
needs to 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 needs to 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 abovementioned
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.
33. 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
sub-rule (5) of 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 Rule 12. Further,
Section 49 of the JJ Act also draws a presumption of the
age of the juvenility on its determination.
34. Age determination inquiry contemplated under the
JJ Act and the 2007 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 22 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, Juvenile Justice Board or
a committee functioning under the JJ 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
Juvenile Justice Board or the committee need to go for
medical report for age determination."
(underlining supplied)
15. It is held by the Supreme Court that only in the absence of any
matriculation or equivalent certificates, the court is to obtain the date
of birth certificate from the school first attended other than a play
school. In the absence of both matriculation or equivalent certificate
and the date of birth certificate from the school first attended, the
court can obtain the birth certificate given by a corporation or a
municipal authority or a panchayat. Medical opinion from a duly
constituted Medical Board can only be obtained if none of the
documents referred to above are unavailable. Under sub-rule (5) of
Rule 12 no further inquiry is to 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 Rule 12. Juvenile
Justice Board or a committee functioning under the JJ Act is not
expected to conduct a roving enquiry or 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
Juvenile Justice Board or the committee need to go for medical report
for age determination.
16. As noticed by the appellate court there is no evidence or
material on record to doubt the correctness of the matriculation
certificate. The mere fact that a school leaving certificate of Class 5 th
of some other school was not found to be genuine would not raise any
doubt or contradict the matriculation certificate. The Board to satisfy
itself had sought for the record from the school. Record was produced
and on perusal of the same, the Board found that the date of birth
recorded in the school records as also the matriculation certificate was
the same. Accordingly, the Board returned the finding in favour of
respondent no. 2 with regard to her juvenility claimed.
17. Before this Court also, learned counsel for the petitioner has not
been able to produce any documents or evidence to cast a doubt on the
correctness of the matriculation certificate.
18. Accordingly, I find no infirmity in the view taken by the
Juvenile Justice Board as also by the appellate court in the impugned
order.
19. In view of the above, I find no merit in the petition. The petition
is accordingly dismissed with no order as to cost.
OCTOBER 26, 2018 SANJEEV SACHDEVA, J
'rs'
