Karnataka High Court

Sri Valu vs Threeshula on 20 December, 2021

Bench: M.Nagaprasanna

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 20TH DAY OF DECEMBER, 2021

                           BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

           WRIT PETITION No.35002 OF 2016 (GM-RES)


BETWEEN:

SRI VALU
S/O GOMAPPA CHOWHAN
AGED ABOUT 39 YEARS,
PILLA REDDY BUILDING
HALE CHANDAPURA, ANEKAL TALUK
BENGALURU - 562 106.
                                               ... PETITIONER

(BY SRI VIVEK S., ADVOCATE (VIDEO CONFERENCING))

AND:

1.     THREESHULA
       AGED ABOUT 19 YEARS
       C/O PILLA REDDY BUILDING,
       OLD CHANDAPURA
       ANEKAL TALUK,
       BENGALURU - 562 106.

2.     THE STATE OF KARNATAKA
       BY HEBBAGODI
       POLICE STATION,
       ANEKAL TALUK
       BENGALURU - 562 106.
                                            ... RESPONDENTS

(BY SRI H.P.LEELADHAR, ADVOCATE AS AMICUS CURIAE, FOR R1
                                  2



   (PHYSICAL HEARING);
   SMT.NAMITHA MAHESH B.G., HCGP FOR R2 (PHYSICAL
   HEARING))

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO CALL
FOR RECORDS IN CR. 342/2014 ON THE FILE OF SPECIAL AND
PRINCIPAL SESSIONS JUDGE, BANGALORE RURAL DISTRICT,
BANGALORE AND J.C.36/2014 ON THE FILE OF CHIEF JUDICIAL
MAGISTRATE AND JUVENILE JUSTICE BOARD, BANGALORE
RURAL DISTRICT, BANGALORE TO ENSURE A FULL AND
COMPLETE ADJUDICATION OF THE PETITION; AND ETC.,


     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 03.09.2021, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-


                               ORDER

Petitioner, in the subject writ petition, seeks the following

prayers:

"WHEREFORE, it is most respectfully prayed that in the facts and circumstances of the case, this Hon'ble Court may be pleased to:

a) Call for the records in Cr.No.342/2014 on the file of Special and Principal Sessions Judge, Bangalore Rural District, Bangalore and J.C.No.36/2014 on the file of Chief Judicial Magistrate and Juvenile Justice Board, Bangalore Rural District, Bangalore, to ensure a full and complete adjudication of the petition;

b) Issue a writ, order or direction in the nature of Certiorari or any other appropriate writ, order or direction, setting aside the

order dated 26the December, 2015 passed by the Ld. Special and Principal Sessions Judge, Bangalore Rural District, Bangalorein C.R.No.342/2014 (Annexure- A), and direct Special and Principal Sessions Judge, Bangalore Rural District, Bangalore to comply with the order passed by the Hon'ble High Court Of Karnataka in Crl.R.P.No.942/2014 vide Annex.F.;

c) Set aside the proceedings before the Juvenile Justice Board in J.C.No.36/2014 as void ab initio and without Jurisdiction.

d) Pass such other or further order/s as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case and in the interest of justice."

2. Heard Sri.Vivek.S., learned counsel appearing for

petitioner, Sri.H.P.Leeladhar, learned Amicus Curiae appearing

for respondent No.1 and Smt.Namitha Mahesh.B.G, learned

High Court Government Pleader appearing for respondent No.2.

3. Sans unnecessary details facts in brief germane for

consideration of the lis are as follows:

On 31.05.2014 at about 3.30 p.m. the petitioner's minor

daughter aged about 8 years was kidnapped by the 1st

respondent on the pretext of buying her mangoes and was

forcefully driven to a vacant land near Surya city, Banahalli of

Iglur village and was raped and was further taken to the

Government Hostel's toilet and again raped and later was

murdered by strangulation or suffocating, as the complaint

would read.

4. A complaint was lodged by the petitioner against the 1st

respondent in Crime No.342/2014 before the Hebbagodi police

station. A FIR was registered for offences punishable under

Sections 363, 376, 302 r/w Sections 3 and 4 of the Protection of

Children from Sexual Offences Act, 2012 ('POCSO' Act for short).

It transpires that the police submitted a report with regard to

the age of the accused-respondent No.1. As per the ossification

test the age was reported to be more than 18 years and less than

20 years, but in terms of the school records the date of birth

that was registered in the school records of the respondent was

26.05.1998. The incident occurred on 31.05.2014. Therefore,

in terms of the school records, the accused - respondent No.1

was aged 16 years and based on the same, the trial Court came

to conclude that the respondent was a juvenile and should be

tried by the Juvenile Justice Board in terms of the Juvenile

Justice (Care and Protection of Children) Act.

5. A charge sheet was filed by the police against the

accused before the Juvenile Justice Board for offences

punishable under Section 363, 366A, 376 and 302 of the IPC

read with Sections 3 and 4 of the POCSO Act. The juvenile

Justice Board by its order dated 18.07.2014 in J.C.No.36/2014

passed an order convicting the accused for offences

aforementioned and directed him to be placed in the special

home in terms of the Act.

6. The 2nd respondent preferred a Criminal Revision

Petition before this Court in Crl.R.P.942/2014 assailing the

order dated 18.07.2014. This Court set aside the order passed

by the Board dated 18.07.2014 on 30.06.2015 and remitted the

matter back to the Sessions Judge to pass an order in

compliance with Section 7-A of the Juvenile Justice (Care and

Protection of Children) Act. The order of the Court reads as

follows:

"3. By order dated 13.06.2014, the learned Judge has ordered for remand of accused to judicial custody till 16.06.2014. An advocate on behalf of the accused filed a memo of appearance and also filed a memo stating that age of the accused is 16 years. The Public Prosecutor prayed for time to seek a report from the police. In turn, learned SPP has made a request to the school in which the accused was studying. On the basis of the report sought by the prosecution, the Government Higher Primary School, Chandapura, Anekal Taluk, Bengaluru, replied by its letter dated 10.07.2014 stating that as per the registration No.1/2004-05 the accused person got admitted to 1st standard and the birth certificate has not been produced and Date of Birth has been referred as 26.09.1998. On the basis of the school registration certificate, the learned Judge has passed an order on 18.07.2014 holding that age of accused is 16 years, hence accused is juvenile and should be tried before Juvenile Justice Board and the Office was directed to send the accused to the jurisdictional Juvenile Justice Board.

4. The ground urged by the petitioner is that the learned Judge has not passed the order in compliance of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000. It is submitted on behalf of the accused that date of birth of the school certificate, which prevails over the doubts. Accordingly, the order of the learned Judge has been supported.

5. Heard the learned counsel for both the sides.

6. When a dispute has arisen in respect of age of the accused, for the purpose of trial under Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000, the Court shall make an enquiry and take such evidence, as may be necessary (but not an affidavit), so as to determine the age of such person and shall record the finding whether the accused is a juvenile or a child or not, on the basis of age. In the backdrop of the age of the accused person, the learned Judge has come to the conclusion on the basis of the school records, which has not been disputed by either of the parties. It is true that when the circumstances of this nature, school certificate namely, school leaving certificate, marks card, registration certificate will prevail over the disputed fact. As it is referred by the learned Judge itself, oath certificate, which shows that age of the accused is 18 years, when these two reports are available to the learned Judge, to resolve, it is appropriate to pass an order in compliance of Section 7-A of the Act. Section 4 of the Cr.P.C. and Sub-Section (2) of the Act which makes clear that any other law which requires to be invoked then the law will have to prevail over the general law. If it is proved that a Juvenile Justice (Care and Protection of Children) Act, 2000, which is a special enactment, which requires that reasons have to be specific, when there are disputes with regard to the age of the accused persons. Therefore, it is necessary for the learned Judge to give a finding particularly in compliance of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000.

7. In view of the same, order passed by the learned Judge is set aside. The Revision

Petition stands remitted to the learned Judge to pass an order in compliance of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000. Ordered accordingly."

7. The learned Sessions Judge before whom the matter

was remitted again affirmed the order even in terms of Section

7A of the Act and closed the proceedings against the 1st

respondent concluding that the Juvenile Justice Board had

already convicted the 1st respondent. It is this order that is

called in question in the present petition seeking the

aforementioned prayers.

8. The learned counsel representing the petitioner would

submit that Section 7A of the Act wherein procedure is

prescribed for determination of age by the Magistrate cannot be

an empty formality. There was no enquiry conducted by the trial

Judge to whom the matter was remitted and the matter requires

reconsideration as according to the ossification test the accused

was 18-20 years and since there is no determination by the trial

Court after the remand by this Court, the matter requires to be

reconsidered with regard to age of the deceased.

9. On the other hand, the learned amicus curiae appearing

for the 1st respondent and the 2nd respondent- State, in unison,

would contend that the Juvenile Justice Board had already

decided based upon the school records that the accused was 16

years old and it is that which is to be taken into consideration

and not the test of ossification as contended by the learned

counsel appearing for the petitioner.

10. I have given my anxious consideration to the

submissions made by the learned counsel appearing for the

respective parties and have perused the material on record.

11. The afore narrated facts are not in dispute. The case of

the petitioner is that the ossification test had indicated the age

of the accused as 18-20 years, that would not be the

determinative factor in the light of the law laid down by the Apex

Court in the case of RISHIPAL SINGH SOLANKI V. STATE OF

UTTAR PRADESH AND OTHERS1, wherein the Apex Court

holds as follows:

"32. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

(i) A claim of juvenility may be raised at any stage of a criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim. It can also be raised for the first time before this Court.

(ii) An application claiming juvenility could be made either before the Court or the JJ Board.

(iia) When the issue of juvenility arises before a Court, it would be under sub-section (2) and (3) of section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, section 94 of the JJ Act, 2015 applies.

(iib) If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

(iic) When an application claiming juvenility is made under section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated under section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the

2021 SCC OnLine SC 1079

age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015).

(iii) That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.

(iv) The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.

(v) That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.

(vi) That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.

(vii) This Court has observed that a hyper-technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.

(viii) If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.

(ix) That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

(x) Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions.

(xi) Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding

factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."

(Emphasis supplied)

The Apex Court in the afore-extracted judgment has held that

ossification test cannot be the sole criterion for determination

and the age of the person cannot be adopted solely on the basis

of medical opinion by radiological examination. Therefore, the

admissible evidence is the school records. If the school records

indicate the date of birth of the accused as 26.05.1998 and the

incident had occurred on 31.05.2014, the age of the accused

would be 16 years and 4 days. It is the school records that

would prevail over the ossification test which is always subject

to interpretation. Therefore, the ground now sought to be alleged