Raj Kumar Turi vs The State Of Jharkhand
2023 Latest Caselaw 2759 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      (Criminal Revisional Jurisdiction)

                        Cr. Revision No.129 of 2023

Raj Kumar Turi, aged about 14 years at present, son of Madan Turi,
represented through his mother and natural guardian Sunita @ Sumita
Devi, aged about 33 years, Wife of Madan Turi, resident of Kalidah,
Khijurkhal, Hathigarh, Barhait, PO and PS Barhait, District Sahibganj.
                                                      ..... ... Petitioner
                          Versus
The State of Jharkhand                           .... .... Opposite Party

                                                  (Heard on 01.08.2023)
                                ---------
                                PRESENT

CORAM :          HON'BLE MR. JUSTICE SUBHASH CHAND
                                  ------

For the Petitioner              : Mrs. Jasvindar Mazumdar, Advocate
For the State                   : Mr. Satish Prasad, APP
                                --------
                              JUDGMENT

CAV On 01st August 2023 Pronounced on 10 August 2023 Per, Subhash Chand, J.

This criminal revision has been preferred on behalf of petitioner, namely, Raj Kumar Turi under section 102 of Juvenile Justice (Care and Protection of Children) Act, 2015 against the order dated 03.12.2022 passed by the learned Additional Sessions Judge-I-cum- Children's Court, Sahibganj in Criminal Appeal No.34 of 2022 whereby the criminal appeal has been dismissed and the order dated 17.08.2022 passed by the Juvenile Justice Board, Sahibganj in connection with Barhait P.S. Case No.16 of 2022 registered for the offence under section 376 and 506 of the Indian Penal Code and under section 6 of POCSO Act has been affirmed.

2. Heard Mrs. Jasvindar Mazumdar, the learned counsel for the petitioner, Mr. Satish Prasad, the learned APP for the State and perused the material on record.

3. From the perusal of the order passed by the learned JJ Board dated 17.08.2022 it is found that during assessment, a set of question was passed to the child in conflict with law by the Board and he had answered

those question as per best of his knowledge and believe. He was found evasive in answering some questions. He also tried to screen himself as a minor so that he could not face the trial as an adult. The questionnaire is made part of the record. Thereafter, on the basis of the questionnaire, it transpired that the CCL was capable to understand the consequence of the offence and the circumstances in which he allegedly committed the offence. Therefore, the learned JJ Board reached to the conclusion that his trial should be conducted as an adult and the case was transferred for trial and disposal to Children Court's, Sahibganj under section 18(3) of the Act.

4. Aggrieved from this order, the appeal was preferred under section 101 of JJ Act, 2015 on behalf of the CCL-petitioner herein, which was registered Criminal Appeal No. 34 of 2022. This criminal appeal was dismissed by the learned Additional Sessions Judge-I-cum-Children's Court, Sahibganj vide order dated 03.12.2022. From the perusal of the order passed by the learned appellate court dated 03.12.2022 it is found that the inquiry no.14 of 2022 dated 17.08.2022 conducted by the learned JJ Board, Sahibganj the questionnaire of preliminary assessment made by the JJ Board, Sahibganj is given hereunder:-

         Qustion         Question to the CCL                Answer of the CCL
         No.
         1.         What is address of your home?           Dhamni,         P.S.-Sundar
                                                            Pahari, District-Godda
         2.         In which class, do you study?           I have never been to
                                                            School.
         3.         What is your date of birth?             I do not have knowledge
                                                            of this.

4. In the course of playing if your To the Doctor friend gets injured then where you will take to him?

         5.         Who arrests?                            Police does arrest
         6.         Did police arrest you?                  Yes, they had taken me
                                                            from my residence
         7.         Whether one         should    go    for Should not be done.
                    intoxication?
         8.         On the bank of which               river I do not know.
                    Sahibganj is situated?

9. Who is pick-pocket and what they I do not know.

do?

10. In which direction sun rises? I do not know.

11. Which religion you follow? I follow mother Durga.

12. What is consequence of committing I do not know.

offence?

13. Whether one should do molestation It should not be done or force against any women or girl or not?

14. If somebody commits rape with any He should be sent to the girl then what punishment should be jail.

given to him?

5. In response to question no.13 and 14 the JJ Board held the child had full knowledge of the consequence of the offence as an adult and held that his trial should be conducted as an adult. From the perusal of the assessment report dated 08.07.2022, the age of the petitioner was assessed by the Medical Board to be 16 to 18 years. The Medical Board was constituted of three members one was Dr. Ritesh Verma, Dentist, PJMCH, Dumka, another member was Dr. Shameem Ahmed, Sr. Paediatrist, PJMCH, Dumka and third member was Dr. Avijeet Prasad, A.P. Orthopaedics, PJMCH, Dumka.

6. The learned counsel for the petitioner has submitted that the Medical Board has assessed the age of the petitioner 16 to 18 years and the learned JJ Board has not considered the fact that after adjusting variation of plus/mines to his age would come around 15 years. The learned trial court has not taken into consideration the age as shown in the Adhar Card in which the age as shown 01.01.2009. As per the Adhar Card, the age of the petitioner was around 13 years.

7. From the very perusal of the order passed by the JJ Board and order passed by the appellate court as well, it is found that there was no school certificate for determination of age. The Adhar Card could not have been accepted as a basis for determination of age in view of section 94 of JJ Act. Therefore, the Medical Board of three doctors was constituted which determined the age of juvenile as 16 to 18 years as such, the average age of the juvenile comes out of 16 + 18= 34/2 i.e. 17 years. The legal proposition as laid down by the Hon'ble Apex Court is to be seen herein as follows:

The Hon'ble Apex Court in "Ram Suresh Singh vs. Prabhat Singh @ Chhotu Singh and another" reported in (2009) 6 SCC 681 and "Jyoti Prakash Rai vs. State of Bihar" reported in (2008) 15 SCC 223 has held that the bone ossification test is not conclusive in nature for age determination as it does not reveal the exact age of the person; but it leaves margin of two years on either side of the age, range which after a lot of the deliberation the Hon'ble Apex Court has held that all things being equal, benefit of doubt in age estimation by bone ossification test is to go to the accused. In "Ram Suresh Singh" (Supra), the Hon'ble Apex Court has observed as under:

15. We are not oblivious of the fact that it is difficult to lay down a law as to whether in a case of this nature, the lower or the upper age or the average age should be taken into consideration. Each case depends on its own facts. In Jyoti Prakash Rai v. State of Bihar [(2008) 15 SCC 223 : (2008) 3 Scale 348] this Court, upon consideration of a large number of decisions, opined: (SCC pp. 232-33, paras 23-25) "23. The appellant herein had produced a large number of documents to prove his age purported to be as on the date of commission of the crime. The genuineness of the school certificate and the horoscope had been questioned. The school certificate produced by the appellant was found to be forged and fabricated and as a matter of fact a criminal case was directed to be instituted against the Head of the Institution.

24. The Court, therefore, had no other option but to determine the age on the basis of the medical reports. Both the medical reports dated 24-4-2001 and 29-6-2001 opined the age of the appellant between 18 and 19 years. In terms of the first medical report, the age of the appellant came to be 18 years 5 months 8 days and in terms of the second medical report, it came to be between 18 and 19 years. The High Court opined that the appellant on 1-4-2001 was definitely above 18 years of age and not below 18 years of age.

25. The courts have considered this aspect of the matter on earlier occasions also. If, thus, on the basis of several factors including the fact that school leaving certificate and the horoscope produced by the appellant were found to be forged and fabricated and having regard to the two medical reports the courts below have found the age of the appellant as on 1-4-2001 to be above 18 years, we are of the opinion that no exception thereto can be taken."

8. Therefore, in view of the above legal proposition as laid down by the Hon'ble Apex Court in "Ram Suresh Singh" and "Jyoti Prakash Rai" (Supra) there is only bone ossification test for determination of the age of the juvenile and as per medical evidence the average age is shown 16 to 18 years. As such, the benefit of margin of two years less may be

given to the juvenile herein child in conflict with law.

9. It would be relevant to give the prosecution story which is reproduced hereinbelow:

As per FIR allegations, the FIR of this case was lodged by the informant with these allegations that her daughter 10 years old had gone to the house of her maternal uncle Jetha Hembrom on 03.03.2022 at 7 O' clock in the morning. On the very day at 04:30 in the evening she went to Laobri Hatia and while she was returning from Hatia, amid the way Raj Kumar Turi, son of Madan Turi took her daughter towards the jungal and forcibly established physical relation with her thrice. Her daughter wanted to raise alarm but he had criminally intimidated her. Thereafter, in the morning, he took his daughter to Jamalpur and resided at the house of his relative. The informant and the maternal uncle of daughter of informant also made search of her. On 05.03.2022 at around 2 O' clock found them from the house of relative of the accused from Jamalpur. Seeing them the accused fled away from there and they boarded back to their daughter Laobri and she told in regard to the occurrence.

10. It would be relevant to mention the provision of section 94 of the JJ Act, 2015 which provides the procedure for determining the age of the juvenile, reads as under:

"94. Presumption and determination of age.-- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the

order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."

11. Therefore in view of the provisions of section 94 of JJ Act the Adhar Card cannot be the basis to determine the age. Accordingly the Board had adopted the procedure of medical examination by the Medical Board which assessed the age to be 16 to 18 years.

12. The crucial question which is to be decided is whether in view of the questionnaire made by the JJ Board which has been affirmed by the learned appellate court, the child in conflict with law was capable to understand the consequence of the offence?

13. The learned JJ Board has not taken into consideration the Proviso (1) of Section 15 of the Juvenile Justice (Care and Protection of Children) Act 2015, which reads as under:

"15. Preliminary assessment into heinous offences by Board.- (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen yeas, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 18:

Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.

Explanation.- For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence."

14. The Board has not taken assistance of the experienced psychologists or psycho-social worker or any other experts to reach at the conclusion that the trial of the petitioner should be conducted as an adult. Keeping in view his age on the date of commission of offence in between 16 to 18 years. The Hon'ble Apex Court held in "Barun Chandra Thakur vs. Master Bholu and Another" reported in 2022 SCC Online SC 870. Under section 15 of the JJ Board 2015 the preliminary assessment is based on four aspects; (i) mental capacity to commit offence (ii) physical capacity to commit offence (iii) ability to understand the consequences of

the offence and (iv) the circumstances under which the allegedly offence was committed. The preliminary assessment requires holistic evaluation for such an assessment the Board may take the assistance of experienced psychologists where the Board constituted does not comprise the child psychotics. The word 'may' would operate in a mandatory form and the Board would be obliged to take the assistance of experienced psychologists or psycho-social worker to try the juvenile as an adult.

15. The Hon'ble Apex Court in "Barun Chandra Thakur" (Supra) has observed as under:

"77. It is a well settled principle of interpretation that the word 'may' when used in a legislation by itself does not connote a directory meaning. If in a particular case, in the interests of equity and justice it appears to the court that the intent of the legislature is to convey a statutory duty, then the use of the word "may" will not prevent the Court from giving it a mandatory colour. This Court in Bachahan Devi v. Nagar Nigam, Gorakhpur, held as under:

"18. It is well settled that the use of the word "may" in a statutory provision would not by itself show that the provision is directory in nature. In some cases, the legislature may use the word "may" as a matter of pure conventional courtesy and yet intend a mandatory force. In order, therefore, to interpret the legal import of the word "may", the court has to consider various factors, namely, the object and the scheme of the Act, the context and the background against which the words have been used, the purpose and the advantages sought to be achieved by the use of this word, and the like. It is equally well settled that where the word "may" involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word "may" should be interpreted to convey a mandatory force. As a general rule, the word "may" is permissive and operative to confer discretion and especially so, where it is used in juxtaposition to the word "shall", which ordinarily is imperative as it imposes a duty. Cases, however, are not wanting where the words "may", "shall" and "must" are used interchangeably. In order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the legislature should be looked into along with the pertinent circumstances."

16. From the questionnaire, which was made by the learned JJ Board it is found that there is no question in regard to the circumstances under which the alleged offence was committed. The physical capacity to commit the offence, mental capacity to commit the offence, only the

ability to understand the consequence of the offence which is in question no.13 and 14 has been based by the JJ Board holding the child to be tried as an adult. While reaching on the conclusion the holistic evaluation of the child was not made and the assistant of the experienced psychologists or psycho-social worker was not taken.

17. The learned appellate court has also not given its finding on this crucial point, while holding the petitioner in preliminary assessment that his trial should be conducted as an adult.

18. In view of the above discussion, the impugned order passed by the learned appellate court dated 03.12.2022 and the learned JJ Board dated 17.08.2022 are, hereby, set aside.

19. This criminal revision petition is, hereby, allowed.

20. The matter is remitted back to the JJ Board to decide afresh the preliminary assessment of petitioner i.e. the child in conflict with law keeping in view the guidelines as laid down by the Hon'ble Apex Court in "Barun Chandra Thakur" (Supra).

21. Let the records of the learned lower court be sent back alongwith the copy of the order.

22. Accordingly, this revision petition stands disposed of.

(Subhash Chand, J.) Jharkhand High Court, Ranchi RKM AFR