Khalid Hussain @ Munna vs Union Territory Of J&K
2021 Latest Caselaw 594 j&K

           HIGH COURT OF JAMMU AND KASHMIR
                    AT JAMMU
Case : Crl R No. 23/2020
       CrlM No. 1687/2020

                                             Pronounced on:0 3.06.2021.

Khalid Hussain @ Munna                                    .... Petitioner(s)


                                Through:-    Sh. Zainab Shamas Watali,
                                             Advocate.
                          V/s
Union Territory of J&K                                  .....Respondent(s)

                                Through:-    Sh. Aseem Sawhney, AAG.


      CORAM :
      HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

                            JUDGMENT

01. This revision is directed against the order dated 31.10.2020

passed by the learned 2nd Additional Sessions Judge, Jammu in an

appeal filed by the petitioner-Khalid Hussain alias Munna against the

order dated 02.01.2019 passed by the Juvenile Justice Board, Jammu by

virtue of which the petitioner has been declared to be major at the time

of alleged occurrence i.e. 08.11.2018. The question involved for

consideration in this petition is how the determination of the age

became an issue before the Juvenile Justice Board.

02. The accused, according to the order of the Juvenile Justice

Board, Jammu dated 12.12.2018, was arrested on 13.11.2018 and he

was found in possession of the Aadhar Card in which his date of birth is

recorded as 20.10.2001 but during investigation, the Police obtained

School Leaving Certificate of the accused from the Government Higher

Secondary School, Bhalwal Jammu in which the date of birth is

recorded as 31.12.2001.

03. It was because of this discrepancy that the SHO Police

Station Gharota applied for his age determination before proceeding

further. This application was allowed by the Board and Superintendent

Medical Hospital, Sarwal, Jammu was asked to constitute a Medical

Board comprising a Radiologist, Physiologist, a Dental Examiner, a

Forensic Expert and Chairperson to determine his age and submit a

report. Medical Board found that the accused was not a juvenile as he

was more than 18 years of age on the alleged date of occurrence.

04. The Juvenile Justice Board comprising Sh. Meyank Gupta,

Principal Magistrate and Nischint Pachnanda, Member, vide order

dated 02.01.2019 held that the Board has no jurisdiction to deal with

the present matter further as the accused is not a juvenile within the

meaning of Section 2(m) of Juvenile Justice Act, 2013. Concluding

para of this order reads as under : -

"It is relevant to mention here that the date of commission of offence is 7/8 November 2018 and date of registration of FIR is 8th November 2018. In view of the observation of the Medical Board, wherein the age of the accused has been found to be more than 18 years, this Board lacks jurisdiction to deal with the present matter further as the accused is not a Juvenile within the meaning of section 2(m) of Juvenile Justice Act 2013. Accordingly, SHO P/s Gharota is directed to produce the above named accused before the Ld. CJM Jammu for further consideration of remand. Application stands disposed of u/r."

05. This is how the determination of age became necessary, but

this order of Juvenile Justice Board was challenged in an appeal filed

by the accused under Section 51(1) of The Jammu and Kashmir of the

Juvenile Justice(Care & Protection of Children) Act, 2013 read with

The Jammu and Kashmir Juvenile Justice (Care & Protection of

Children) Rules, 2014 (hereafter referred to as the Juvenile Justice Act).

However, the Jammu and Kashmir Juvenile Justice Act 2013 stands

repealed by The Juvenile Justice (Care & Protection of Children) Act,

2015 by the Jammu and Kashmir Re-organization Act, 2019. Section

25 of The Juvenile Justice Act, 2015 reads as under:

"Notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of this Act, shall be continued in that Board or court as if this Act had not been enacted."

06. In view of the mandate of Section 25 of the Act, this revision

is maintainable, as the case was pending on the date, the Act was

repealed. In this case, the proceedings are pending against the accused

but he is challenging the finding of the Appellate Court under Section

52 of The Jammu and Kashmir Juvenile Justice (Care and Protection of

Children) Act, 2013.

07. One of the grounds of challenge is that the Appellate Court

has not properly appreciated the scope of Rule-74, sub-rule (4)(5) and

(6) of the J&K Juvenile Justice (Care & Protection of Children) Rules,

2014. These sub-rules are noticed below:

"(4) All the Government Hospitals shall constitute Medical Board for medical age examination, consisting of a Physiologist, a Dental Examiner and a Radiologist or

Forensic Expert, of whom one shall be notified as the Chairperson.

(5) All the members of the Medical Board shall give their individual finding on age, which shall then be forwarded to the Chairperson of the Board to give the final opinion on the age within a margin of one year.

(6) The duly constituted Medical Board shall give their report with the findings on age within 15 days of request being made in this regard."

08. As per sub-rule(4), out of the four doctors one of them could

be Chairman and Dr. Mrityunjay Gupta being Professor of Physiology

was rightly designated as Chairman of the Board. Moreover, his

statement that he was the Chairman of the Medical Board has not been

challenged in the cross-examination. Moreover, each one of the

member of the Board has given his separate opinion about the age as

recorded in EXPSM. Final opinion has to be of the Board as per Sub-

rule (6) of Rule 74. As such, Rules 74(5) has been complied in its letter

and spirit.

09. This argument of learned counsel for the petitioner, therefore,

is also not tenable in view of the reports of the Medical Board which is

clear and empathetic in terms of sub-rule(5) of Rule-74. All Doctors,

namely, Dr. Mrityunjay Gupta, Dr. Shivani Mehta, Dr. Vikrant Gupta

& Dr. Sandeep Kour have given separate opinions and the Chairman

Dr. Mrityunjay Gupta has complied the same and the same has been

forwarded by him.

10. The position of Dr. Mrityunjay Gupta as Chairman being a

member of Medical Board has not been questioned anywhere in the

cross exmination. He has only been cross-examined regarding

authenticity of the age of the accused, and according to him, Board

Members have given approximate age of the accused. His statement as

Chairman has not been challenged by asking him the question

regarding his appointment as Chairman.

11. Similarly, Dr. Shivani Mehta, has also made a categorical

statement that Dr. Mrityunjay Gupta was the Chairman of the Board,

and her statement has not been challenged.

12. Dr. Sandeep Kour of Department of Oral Medicines and

Radiology has stated that the opinion was given by the members of the

Board after deliberation and discussion as per specialty represented by

them.

13. Similarly, Dr. Vikrant Gupta has stated that he gave the

opinion on the basis of X-ray views of the accused. According to him,

his opinion is founded on ossification of bones. The evidence has been

directly examined by the appellant.

14. Thus, the Appellate Court has appreciated the evidence fairly

and reached the conclusion correctly that on the date of occurrence. The

petitioner was more than 18 years of age. There is no violation of Rule-

74 of J&K Juvenile Justice (Care & Protection of Children) Rules, 2013

as argued by the learned counsel for the petitioner.

15. The argument that there is violation of Rule-75(3), of the

rules because the date of birth recorded in the school has been wrongly

rejected is also without any substance. This argument has also been

considered and rejected by the Appellate court for sound and valid

reasons with reference to Rules 74 and 75 which reads as under:

".....14. Rule position in terms of Rule 74 of Jammu & Kashmir (Juvenile Justice Care and Protection) Rules 2014 ( for short Rules 2014) framed under the Act 2013 is luculent and clear and leaved no space for any equivocation because evidence like School Leaving Certificate for determining the Juvenility is alien to Rule 74 of Rule 2014, as at the first instance birth certificate issued by Municipal Committee or Corporation is to be considered for determining the age of Juvenile and in case same is not available them Matriculation Diploma/certificate containing the date of birth, issued by the Board of School Education is to be relied upon and in case there is contradiction regarding entry of date of birth in school or Board record to in case State disputed the date of birth reflected in the Matriculation certificate, then the additional evidence by way of constitution of Medical Board as provided by Rule 75 of the Rules 2014 to determine the age of Juvenile is required to be gathered. That since the case of the accused is not covered by Rule 74 of the Rules 2014 because he has not passed the Matriculation examination or equivalent Diploma course and there was no such certificate on record nor a Birth Certificate issued by Municipal Committee or Corporation was placed on record, therefore, the opinion of Medical Board to determine the age of the accused in terms of Rule 75 was necessary and thus, the final opinion of the Medical Board is to be considered and cannot be faulted with....."

16. I find no reason to take a different view, in view of what is

stated in Para-1 of the order dated 02.01.2019 passed by the J&K

Juvenile Justice Board, the relevant portion of which is extract below:-

"....... Since the date of birth in aadhar card and school leaving certificate were different, as such, the I.O. during course of investigation inquired from the Head of the said school who informed the I.O. that the said juvenile/accused

had studied initially from Govt. Girls Middle School, Bhalwal, Jammu and from where the record pertaining to his date of birth can be procured. On this I.O. wrote to the said school on 16-11-2018 who vide letter dated 19-11-2018 informed the I.O. that though the date of birth of the accused had been registered with the school record as 31-12-2001, but there is no documentary proof traceable in the school record pertaining to his date of birth. Even the date of birth of the accused has not been registered with the concerned Police Station being a native of Kangar, Bhalwal, Jammu......"

17. It is not the case of the petitioner that why his date of birth

was not recorded by the Chowkidar who had to send it to the Police

Station. Thus, no reliance could be placed on such a school certificate

in view of the rule position.

18. The petitioner cannot draw any support from para 17 of the

judgment in Ravinder Singh Gorkhi v/s State of UP, (2006) 5 SCC 584.

Rule 3(III) and 75(2) of the Rule, 2014. Moreover, there was no

controversy about the date of birth of Ajay Kumar in the case of Ajay

Kumar v/s State of J&K, who was tried and convicted under section

302/342 of RPC on 18.01.2012. The question arose before the court for

the first time. There was no controversy about his recorded age in the

school register, hence the facts of the case are distinguishable.

19. This is a case in which there is a birth certificate from the

School first attended but the age reflected in the Aadhar Card is

different. The findings of the Juvenile Justice Board is that the accused

on 7/8 Nov. 2018 was more than 18 years of age, therefore, the Board

lacked the jurisdiction and this has been confirmed by the Medical

Board directed to be constituted by the Additional Sessions Judge.

20. The other question put forth by the learned counsel for the

petitioner is that as per Rule-74(6), the Medical Board shall give their

findings on age within 15 days of the request being made. There is no

violation of this Rule because direction for constitution of the Board

was given vide order dated 22.03.2019. The Superintendent Central Jail

Jammu, thereafter wrote to the Principal Medical College, Jammu for

constitution of the Board on 28.03.2018 and the Board examined the

accused on 03.04.2019 but since the X-rays reports were awaited,

therefore, the Chairman forwarded the opinion of the Medical board

only after receipt of the report. There is no delay because the X-ray

department operates according to the time schedule. Moreover, the

examination was conducted within 15 days of the report and if its

opinion is delayed by few days does not affect its validity. There is

thus, no violation of Rule-74(6) as argued by learned counsel for the

petitioner.

21. It is settled position of law that the jurisdiction of the

Revisional Court is to see whether the appreciation of facts is perverse

and as so resulted in miscarriage of justice. In Thakur Das (dead) by

LRs. vs. State of Madhya Pradesh, 1978 (1) SCC 27, The Hon'ble

Supreme Court has held that

"......the revisional jurisdiction can be exercised only in exceptional cases where the interest of the public justice requires interference for correction of a manifest illegality or the prevention of gross miscarriage of justice...."

22. The Appellate Court has properly appreciated the evidence

and recorded the conclusion rightly. Since the appreciation of evidence

and interpretation of rule does not suffer from any infirmity, therefore,

this revision petition is without any merit and is accordingly dismissed.

23. The Trial Court is directed to proceed ahead with the case

expeditiously in view of the clear finding that the accused-Khalid

Hussain was more than 18 years of age on the date of commission of

offence.

(SINDHU SHARMA) JUDGE JAMMU 03.06. 2021.

                    Ram Murti
                                        Whether the judgment is speaking           :      Yes/No
                                        Whether the judgment is reportable         :      Yes/No




RAM MURTI
2021.06.04 16:33
I attest to the accuracy and
integrity of this document