Murtaza Tariq vs State Of J&K
2021 Latest Caselaw 741 j&K/2

                                 IN THE HIGH COURT OF JAMMU AND KASHMIR
                                               AT SRINAGAR

                                                                          Reserved on: 02.07.2021
                                                                        Pronounced on: 12.07.2021

                                                        CRR No.07/2019

                                                        B.A No.130/2019


                           Murtaza Tariq                                        ...PETITIONER(S)

                                      Through: Mr. Irshad Ahmad, Advocate.

                           Vs.

                           State of J&K                                        ....RESPONDENT(S)

                                      Through: Ms. Asifa Padroo, AAG


                           CORAM:HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                                            JUDGMENT

1) The petitioner, who is facing trial in FIR No.44/2018 registered

in Police Station, Kreeri for offences under Section 376 RPC and

Section 4 of Protection of Child from Sexual Offences Act, 2012,

claims juvenility and feels aggrieved of the orders dated 07.12.2018

and 02.02.2019, both passed by the Court of learned Sessions Judge,

Baramulla ("the trial Court") and seeks a direction to the trial Court to

refer the trial to Juvenile Justice Board.

2) In terms of order dated 07.12.2018, the trial Court with a view

to ascertain his age and dispose his claim of juvenility referred the

petitioner to a medical board for determination of his age. In terms of

order dated 02.02.2019 passed in the same proceedings, the trial VINOD KUMAR 2021.07.13 11:52 I attest to the accuracy and integrity of this document

Court, upon receipt of the report/medical opinion from the board of

doctors, has rejected the petitioner's plea of juvenility and has held

him major at the time of commission of offence. Pertinent to note that

the order impugned dated 07.12.2018 was initially accepted by the

petitioner and no proceedings against it were taken. It was only when

adverse opinion by the Medical Board was received by the Court and

pursuant thereto, the petitioner's plea of juvenility was rejected by the

trial Court vide order dated 02.02.2019, the petitioner thought of

challenging the basic order.

3) The impugned orders have been assailed by the petitioner on

various grounds but before appreciating the same, a brief reference to

the factual antecedents would be worthwhile. Police Station, Kreeri

registered FIR No.44/2018 against the petitioner on the allegation of

commission of offences under Section 376 RPC and Section 4

POCSO and set the investigation in motion. During investigation,

offences under Section 376 RPC and Section 4 of POCSO were

established and a final report in this regard was submitted before the

trial Court. The petitioner moved an application before the trial Court

for seeking his trial under the Juvenile Justice (Care and Protection of

Children) Act, 2013 on the ground that he was juvenile on the date of

commission of offence as substantiated by the date of birth/school

leaving certificate issued by the Headmaster, Govt. Middle School,

Hail, Zone Bagoora. The petitioner also moved another application

claiming that his name was wrongly reflected in the challan as Nazir

VINOD KUMAR 2021.07.13 11:52 Ahmad Parray instead of his actual name i.e. Murtaza Tariq. The trial I attest to the accuracy and integrity of this document

Court, after finding variations in various documents pertaining to the

age of the petitioner and also taking note of the admission by the

petitioner while recording his statement under Section 242 Cr.P.C.

that he was 21 years old, thought it appropriate to get the petitioner

medically examined by a Medical Board for determination of his age.

The trial Court vide order dated 07.12.2018 directed the Chief

Medical Officer, Baramulla to constitute a Medical Board to

determine the age of the petitioner and submit his report within two

days.

In compliance, the Medical Board was constituted,

which, after examination of the petitioner, opined that the petitioner

appears to be more than 18 years and less than 25 years of age. The

trial court placing reliance on the opinion of the Medical Board and

after affording opportunity of being heard to the petitioner, declined to

accept the plea of juvenility raised by the petitioner and, accordingly,

dismissed his application.

4) It may be noted that alongside the application moved by the

petitioner for declaring him juvenile, the prosecution too had filed an

application for getting the age of the petitioner determined through

Medical Board. Both these applications were disposed of in terms of

the impugned order dated 07.12.20218 thereby issuing direction for

constitution of Medical Board for determination of the age of the

petitioner.

VINOD KUMAR 2021.07.13 11:52 I attest to the accuracy and integrity of this document

5) Be that as it is, the petitioner is now aggrieved of both the

orders and seeks to challenge the same inter alia on the following

grounds:-

i) That the impugned orders are not sustainable in law for the reason that the trial Court has failed to appreciate the statements made by the witnesses and erroneously ignored the date of birth certificate issued and proved by the school authorities of the department of education.

ii) That in the face of date of birth certificate issued by the Municipality or the school being available, it was not permissible to refer the petitioner to the Medical Board for determination of his age.

iii) That the opinion of the Medical Board is not a valid opinion as the petitioner was never examined by a duly constituted medical board under the provisions of the Act. The opinion was rendered by a single doctor and, therefore, ought to have been ignored by the trial Court.

6) The revision petition is contested by the State. Ms. Asifa

Padroo, learned AAG appearing for the State has supported the

impugned orders passed by the trial Court and would submit that in

the face of variations found in various documents pertaining to the age

of the petitioner, the only option left with the trial Court was to refer

the petitioner to a duly constituted Medical Board for determination of

his age. The contention of the learned counsel for the petitioner that

the opinion with respect to the age of the petitioner was rendered by a

single doctor and not by a duly constituted Board is also vehemently

refuted. Attention of this Court is invited to the trial Court record, a

VINOD KUMAR perusal whereof reveals that the Chief Medical Officer, Baramulla in 2021.07.13 11:52 I attest to the accuracy and integrity of this document

response to the direction of the trial Court, had constituted a Board of

following doctors:-

1. Dr. Farooq Ahmad Wani, Consultant Radiology

2. Dr. Gurmeet Singh, Consultant Physician

3. Dr. Babar Ali Shah, MDS.

All the three doctors have opined that radiological age of the

petitioner was more than eighteen years and less than twenty five

years. The opinion of the Medical Board is in the following words:-

"The radiological age of the person namely Nazir Ahmad

Parray R/o Hail Jagir is more than eighteen years and less

than twenty five years. The physician specialist and

senior dental surgeon standing at Sr. No.2 and 3 are also

of same opinion."

7) Having heard learned counsel for the parties and perused

record, the only question that begs determination in this revision

petition is, "whether the trial Court was justified in referring the

petitioner to the Medical Board for determination of his age, when

primary evidence in the shape of school leaving certificate indicating

the date of birth of the petitioner was made available to it. If answer

to this question is in the affirmative, whether the opinion rendered by

the Medical Board constituted by the Chief Medical Officer concerned

is as per the provisions of the Act.?

8) Indisputably, on the date of occurrence i.e. 17.06.2018, the

VINOD KUMAR 2021.07.13 11:52 Jammu and Kashmir Juvenile Justice (Care and Protection of I attest to the accuracy and integrity of this document

Children) Act, 2013 ("the Act") was in operation and regulated the

care, treatment and protection to the juveniles in conflict with law and

children in need of care and protection. Section 2(m) of the Act

defines "juvenile" or "child" whereas Section 2(n) defines "juvenile in

conflict with law". For facility of reference Section 2(m) and 2(n) are

reproduced hereunder:-

"2(m) "juvenile" or "child" means a person who has not completed eighteen years of age;

(n) "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteen year of age as on the date of commission of such offence;"

9) In view of the aforesaid definition of "juvenile" given under the

Act, the trial Court in the instant case was called upon to determine

the age of the petitioner on the date of commission of alleged offence.

Section 8 of the Act lays down procedure to be followed when claim

of juvenility is raised before any Court. Proper appreciation of the

provisions of Section 8 is pivotal to the determination of the issue on

hand and, therefore, Section 8 is also set out hereunder:-

"8. Procedure to be followed when claim of juvenility is raised before any Court.---(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence. the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, VINOD KUMAR and shall record a finding whether the person is a 2021.07.13 11:52 I attest to the accuracy and integrity of this document

juvenile or not, stating his age as nearly as may be.

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in the Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of the Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order and the sentence. if any, passed by a court shall be deemed to have no effect."

10) From a reading of Section 8 of the Act, it is clear that whenever

a claim of juvenility is raised before any Court or the Court is of the

opinion that the accused person was juvenile on the date of

commission of offence, the Court shall make an enquiry, take such

evidence as may be necessary and record a finding whether the person

is a juvenile or not stating his age as nearly as may be. The Section

further provides that the claim of juvenility raised before any Court at

any stage shall be determined as per the provisions of the Act and the

Rules framed thereunder. What is enjoined by Section 8 of the Act is

an enquiry where the Court may also take such evidence as may be

necessary so as to determine the age of such person.

11) Rule 74 of The Jammu & Kashmir Juvenile Justice (Care and

Protection of Children) Rules, 2014 (hereinafter "the Rules") provides

that whenever an alleged offender, who appears to be below the age of VINOD KUMAR 2021.07.13 11:52 I attest to the accuracy and integrity of this document

21 years is produced before a Court, the Court on the very first date of

production shall question the alleged offender about his age and

satisfy itself that he is not a juvenile. He will make a note of his

findings and order immediate transfer of the matter to the Juvenile

Justice Board constituted under the Act. So far as Board or Welfare

Committee constituted under the Act are concerned, it will decide the

issue of juvenility on the basis of physical appearance or documents

available, if any. The Rules further provide that where an enquiry is

instituted by the Board or Committee for determination of the age,

such enquiry shall take into consideration the following evidence:-

i) the birth certificate issued by a Corporation or a

Municipal Committee or any other notified authority; or

ii) the matriculation or equivalent certificate; or

iv) In absence of the certificates mentioned in sub-clauses (i)

and (ii) or in case of any contradiction arising therefrom,

the authority deciding the age issue may refer the matter

to a duly constituted Medical Board, which shall record

its findings and submit to the Juvenile Justice Board.

Rest of the Rule deals with constitution of the Medical Board

and lays down qualification of the experts, who can be on such Board.

12) Rule 75 deals with declaration of age by the Court or Board or

the Committee. A conjoint reading of Section 8 with Rules 74 and 75

makes it abundantly clear that so far as Court before whom claim of VINOD KUMAR 2021.07.13 11:52 I attest to the accuracy and integrity of this document

juvenility is raised is concerned, it is best left to the Court to

determine the age of such person after making an enquiry and taking

such evidence as may be necessary. In the instant case, the trial Court

did take evidence in the matter and found serious variations in the

version emerging from the oral testimony and the documentary

evidence on record. The petitioner himself while recording his

statement under Section 242 Cr.P.C. indicated his age as 21 years but

as per the school leaving certificate, which of course was not a

matriculation certificate, the petitioner was minor at the time of

alleged commission of offence. The voter list was, however, showing

the petitioner major, in that, nobody will have a right to vote unless he

has attained the age of majority. The trial Court also found a major

discrepancy in the name of the petitioner as mentioned in the challan

and the name as was indicated in the school leaving certificate. As per

the police challan, the name of the accused is Nazir Ahmed Parray,

whereas the date of birth certificate issued by the school authorities

pertains to one Murtaza Tariq. The petitioner claims that Nazir

Ahmed Parray and Murtaza Tariq are the names of the same person.

He has also moved an application for seeking amendment to the name

as indicated in the challan, which matter is yet to be considered and

determined by the trial Court.

13) Suffice it to say that in view of the contradictions

emerging in the evidence, the trial Court was left with no option but to

refer the petitioner to the Medical Board for determination of his age.

VINOD KUMAR 2021.07.13 11:52 The duly constituted Board, which consisted of a radiologist, a I attest to the accuracy and integrity of this document

physician and a dentist examined the petitioner and found his age

between 18 years and 25 years. It is true that the Board has not been

able to give any definite opinion on the age within a margin of one

year. It is also true that all the three members have not given their

separate opinion with regard to the age. However, from a perusal of

the medical opinion on record, it clearly transpires that the primary

opinion was written by the radiologist and the two other members of

the Board concurred with him.

14) Although, as per Section 8 of the Act and the Rules framed

thereunder, the Court is not bound to refer the petitioner to the

Medical Board and could have determined the age on the basis of

enquiry conducted by him but once the trial Court referred the

petitioner to the Medical Board for its opinion with regard to the age

of the petitioner, it was incumbent upon the Medical Board to follow

the procedure, as laid down in Rule 74 of the Rules. As is seen, in the

instant case all the members of the Medical Board did not render their

individual findings on age nor on the basis of such individual findings

Chairperson of the Board gave any final opinion on the age within a

margin of one year. The opinion by the Medical Board that the age of

the petitioner could be more than eighteen years and less than twenty

five years is too vague to be relied upon. As a matter of fact, the

Medical Board has not followed the procedure laid down in Rule 74

of the Rules.

VINOD KUMAR 2021.07.13 11:52 I attest to the accuracy and integrity of this document

15) For the foregoing reasons, I find merit in the submission of

learned counsel for the petitioner that the opinion of the Medical

Board was neither definite nor reliable and, therefore, it was not

proper for the trial Court to accept the same and declare the petitioner

not a juvenile under the Act.

16) This petition is, therefore, partly allowed. The order impugned

dated 07.02.2019 is upheld. However, the order impugned dated

02.02.2019 is set aside. Let the Chief Medical Officer, Baramulla

constitute a fresh Board of Doctors consisting of a Physiologist, a

Dental Examiner and a Radiologist or Forensic Expert of whom one

shall be notified as Chairperson. All the members of the Medical

board shall examine the petitioner and give their individual findings

on age, which shall then be forwarded to the Chairperson of the Board

to give his final opinion on the age within a margin of one year. The

Board shall be constituted by the Chief Medical Officer, Baramulla

within two days from the date it receives the copy of this order and the

Medical board so constituted shall render its opinion with regard to

the age of the petitioner within 15 days.

17) The trial Court shall proceed further in the matter on the basis

of opinion so rendered by the Medical Board.

B.A. No.130/2019

18) Since matter with regard to the determination of age of the

petitioner and his claim of juvenility is remanded back to the trial VINOD KUMAR 2021.07.13 11:52 Court, therefore, it would not be proper to consider the bail plea of the I attest to the accuracy and integrity of this document

petition unless his plea of juvenility is determined afresh by the trial

Court.

19) This bail application is, therefore, dismissed leaving it open to

the petitioner to move a fresh application for bail once his plea of

juvenility is determined afresh by the trial Court as per the

observations made herein above while disposing of the criminal

revision.

(Sanjeev Kumar) Judge Srinagar 12.07.2021 "Vinod, PS"

                                         Whether the order is speaking:            Yes
                                         Whether the order is reportable:          Yes




VINOD KUMAR
2021.07.13 11:52
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integrity of this document