Dulal Shyam Chaudhary vs The State Of Jharkhand
2023 Latest Caselaw 2222 Jhar

                                       1

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    W.P.(Cr.) No. 153 of 2016

Dulal Shyam Chaudhary                                  ......    Petitioner
                           Versus
1.The State of Jharkhand
2. Dayanand Lohra                                      ......    Respondents


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CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                          ---------
For the Petitioner : Mr. Pandey Neeraj Rai, Advocate
                     Mr. Rohit Ranjan Sinha, Advocate
For the State      : Mr. Ravi Kerketta, Advocate
For the Respondent No. 2: Mr. Nilesh Kumar, Advocate
                           Ms. Sonal Sodhani, Advocate

14/Dated: 03/07/2023

Heard Mr. Pandey Neeraj Rai, learned counsel for the petitioner, Mr. Ravi

Kerketta, learned counsel for the State and Mr. Nilesh Kumar, learned counsel for the

respondent no.2.

2. This petition has been filed for quashing of order dated 09.06.2016

passed in S.T. Case No. 265/2008, arising out of Bariatu P.S. Case No. 215/2007,

corresponding to G.R. No. 4628 of 2007, pending in the Court of learned Principal

Magistrate, Juvenile Justice Board, Ranchi.

3. The F.I.R. has been lodged alleging therein that on 10.12.2007 the minor

daughter of the informant went to school but she did not return. The informant

suspected that the respondent no. 2 has eloped her minor daughter for the purpose of

marriage.

4. Mr. Pandey Neeraj Rai, learned counsel for the petitioner submits that

the statement of the accused/respondent no.2 was recorded under section 313 of

Cr.P.C. on 20.04.2023 wherein he admitted his age as 27 years on that date which was

accordingly mentioned by the learned court. According to him this suggests that

considering that date of occurrence dated 10.12.2007 the age of the respondent no.

2 was 21 years, 7 months and 20 days. Subsequently, defence witnesses were

examined and the respondent no. 2 raised plea of juvenility on the date of

commission of occurrence and he tried to make out the case that he was below age of

18 years at the time of alleged occurrence. He further submits that the learned court

had proceeded to examine the said contention under section 7-A of Juvenile Justice

(Care and Protection of Children) Act, 2000 (hereinafter referred to the Act). He

submits that in course of enquiry the respondent no.2 produced records of the

matriculation examination to show his date of birth was 10.01.1990 and in support,

he produced a witness namely, Sri K.N. Prasad, Law Assistant of Jharkhand Academic

Council, Ranchi and the mark-sheet was marked as Exhibit-A. He submits that the

informant/petitioner produced records of school first attended namely, I.M. School,

Lohardaga showing the date of birth of the respondent no. 2 as 16.09.1988 and

in support the principal of school was examined as E.W.1. He submits that the learned

court has decided the said issue considering the evidence adduced on behalf of the

petitioner as well as respondent no. 2 holding that the date of birth of the respondent

no. 2 was 10.01.1990 and he is juvenile. He submits that the learned court has

wrongly relied Rule 2007 of Juvenile Justice (Care and Protection of Children) Act. He

draws the attention of the Court to Section 68 of the Juvenile Justice (Care and

Protection of Children) Act, 2000 wherein it has been disclosed that the Rule, 2007

made by the Central Government will be considered by all the States unless any

separate Rule is framed by the respective state. He submits that in view of that Rule

of the Government of Jharkhand was already there under the said Act, learned Court

erred in relying on Rule 2007 as in 2003 itself Government of Jharkhand framed Rule

under the said Act. He submits that Rule 2007 is model Rule. According to him the

finding of the learned court is erroneous and this Court may set aside the impugned

order.

5. Per contra, Mr. Nilesh Kumar, learned counsel for the respondent no. 2

draws the attention of the Court to the F.I.R. and submits that F.I.R. was lodged on

12.12.2007 for the occurrence of 10.12.2007. By way of inviting attention of the

Court to page 61 of the petition which is document of Jharkhand Academic Council he

submits that date of birth of the respondent no. 2 is recorded as 10.01.1990 and this

document has been issued on 29th May, 2005. He submits that in view of that when

the matriculation certificate is there, in view of Rule 12 of 2007 Rule, the learned

Sessions Judge has rightly held that the respondent no. 2 is juvenile. He submits that

so far as argument of learned counsel for the petitioner that age of the petitioner was

recorded as 27 years in the statement recorded under section 313 of Cr.P.C. is not

tenable as that cannot be admission as it has been held by the Hon'ble Supreme Court

in several judgments and to buttress his argument he relied in the case of "Pawan V.

State of Uttaranchal" (2009) 15 SCC 259. He submits that a coordinate bench of

this Court in the case of "Manju Sexana Vs. State of Jharkhand & Ors." (Cr.

Revision No. 722 of 2012) which has been decided on 29th April, 2016

considering the judgment of the Hon'ble Supreme Court in the case of "Ashwani

Kumar Saxena V. State of Madhya Pradesh" (2012)9 SCC 750 in which it was

held that matriculation certificate is a conclusive document to decide the juvenility of

any accused. He further relied in the case of "State of Bihar V. Chhotu Pandey @

Roshan Pandey" (2015) 17 SCC 660. By way of relying the said judgment, he

submits that in that case the Hon'ble Supreme Court has held that when the

matriculation certificate is there, the medical examination was not warranted. On

these grounds he submits that there is no illegality in the impugned order and this

court is not required to interfere with.

6. Learned counsel for the respondent-State submits that the learned court

has proceeded rightly and has passed order relying on Rule 2007.

7. In view of above submission of the learned counsel for the parties the

Court has gone through the contents of F.I.R. as well as the impugned order.

Admittedly the occurrence took place place on 10.12.2007 wherein F.I.R. was

registered on 12.12.2007. Two dates of birth of the respondent no. 2 has come before

the learned court as 16.09.1988 and 10.01.1990. Section 68 of the Juvenile Justice

(Care & Protection of Children) Act, 2000 speaks of power to make Rule. The relevant

portion of the said section is hereby quoted here-in-below:-

" 68. Power to make rules:- (1) The state Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the state government may make rules under this section, and where any such model rules have been framed in respect of that any such matter, they shall apply to the state until the rules in respect of that matter is made by the state government and while making any such rules, so far as is practicable, they confirm to such model rules.....................

8. Looking into the above section, it is crystal clear that proviso of said

section speaks of that the said Rule is of model Rule and it is applied to all the states

unless till the separate rule is not made out by any state.

9. In view of above facts, it is clear that this Rule framed in the year, 2007

was only applicable if the State Government has not come forward with any other

Rule. Admittedly, the Government of Jharkhand has come out with Jharkhand Juvenile

Justice (Care and Protection of Children) Rule, 2003 wherein Procedure is prescribed

in Sub Rule 5 of Rule 22 of the Rules, 2003 which is quoted here-in-below:

"Rule 22(5)- In every case concerning a juvenile or a child, the Board shall either obtain,- (i) a birth certificate given by a corporation or a municipal authority; or (ii) a date of birth certificate from the school first attended; or (iii) matriculation or equivalent certificates, if available; and

(iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board (regarding his age and, when passing orders in such case shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be record a finding in respect of his age)."

10. Looking into Sub Rule 5 of Rule 22, it is crystal clear that procedure is

prescribed therein to determine age if any dispute of juvenility of any accused is

there.

11. Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007

speaks 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 may be, 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 Ihe 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 18 years 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 section 7A, 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 of 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.

12. Looking into above provision of Rule 2007 particularly Rule 3(b), it is crystal

clear that in absence of either (i), (ii) or (iii) of Clause (a), the medical opinion will be

sought from a duly constituted medical Board, which will declare the age of juvenile or

child and this aspect of the matter has recently been considered by the Hon'ble

Supreme Court in the case of XYZ Vs. Abhishik & Another, reported in 2002 SCC

Online SC 1200 wherein the case of Ashwani Kumar Saxena Vs. State of

Madhya Pradesh was considered at para 20- which is quoted here-in-below:-

"20 In Ashwani Kumar Saxena v. State of Madhya Pradesh a two-judge bench of this Court considered the provisions of Section 7-A of the 2000 Act along with rule 12(3)(a) of the 2007 Rules. The court held that it is only in cases where the documents stipulated under rule 12(3)(a) are found to be fabricated or manipulated that the court or the Board may direct a medical examination for age determination. The Court further laid down the guidelines for conducting the age determination inquiry:

"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."

13. Looking into Rule of 2003 of the Government of Jharkhand as well as

Rules, 2007 it appears that in both Rules almost paramateria are same. The juvenility

of a person or a child in conflict with law had to be decided prima facie on the basis of

physical appearance, or document, if available and enquiry into the determination of

age by the Juvenile Justice Board by way of 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; 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.

14. Admittedly in the case in hand, date of birth of the respondent no. 2 was

disclosed by first school attended as 16.09.1988 whereas in another certificate

brought by the respondent no. 2 it was disclosed as 10.09.1990. This aspect of the

matter has been supported by the enquiry witnesses before the learned court

examined by the petitioner who was the principal of first attended school of the

accused and by the respondent no.2 by way of examining officer of the Board. This is

an admitted fact that there is dispute with regard to date of birth of the respondent

no. 2. Further, the Court finds that the learned court has come to the conclusion that

apparently the accused was looking major at the time of passing order.

15. In the above background and considering the Rules of the Government

of Jharkhand as well as 2007 Rules if the respondent no. 2 was looking as major two

disputed date of birth was there, the first attended school date of birth was as

16.09.1988 and Subsequently, in matriculation certificate has been brought on record

in which the date of birth of the respondent no. 2 was 10. 01.1990.

16. In view of judgment of the Hon'ble Supreme Court in the case of

"XYZ" (supra)., the correct procedure was determine to take opinion of Medical

Board and in absence of that learned court has straightway held that the respondent

no. 2 is juvenile which is contrary to law has been held by the Hon'ble Supreme Court

in the case of "XYZ" (supra).

17. In view of the aforesaid facts, reasons and analysis, the order dated

09.06.2016 passed in S.T. Case No. 265/2008, arising out of Bariatu P.S. Case No.

215/2007, corresponding to G.R. No. 4628 of 2007 is set aside. The learned Juvenile

Justice Board shall send the respondent no. 2 to the Medical Board for determination

of age of the respondent no.2 thereafter the learned Juvenile Justice Board shall take

decision and the learned court will proceed.

18. This exercise shall be completed within four weeks from the date of

receipt/production of a copy of this order.

19. This petition stands allowed and disposed of. Pending I.A, if any, stands

disposed of. Interim order is vacated.

( Sanjay Kumar Dwivedi, J.) Satyarthi/AFR