Madhya Pradesh High Court
Nilesh vs The State Of Madhya Pradesh on 2 September, 2023
Author: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 2nd OF SEPTEMBER, 2023
CRIMINAL REVISION No. 1725 of 2023
BETWEEN:-
NILESH S/O KAMALSINGH, AGED ABOUT 18
YEARS, OCCUPATION: LABOR R/O GRAM
NOHAR PURA NAYAN THANA RAOTI DISTT.
RATLAM (MADHYA PRADESH)
.....PETITIONER
( BY SHRI VISHAL PATIDAR- ADVOCATE )
AND
THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH POLICE STATION
1.
RAOTI DISTRICT RATLAM (MADHYA
PRADESH)
STATE OF M.P. DWARA JILADHISH MAHODAY
2.
RATLAM (MADHYA PRADESH)
.....RESPONDENTS
(STATE BY SMT. VARSHA SINGH THAKUR GA )
_____________________________________________________________________
This revision coming on for admission this day, the court passed the
following:
ORDER
This revision petition has been filed under section 397 of Cr.P.C
assailing the impugned order dated 07/03/2023, whereby learned Court
has rejected the application preferred by the petitioner for treating the
petitioner as juvenile.
2/ Rule 12 of the Juvenile Justice ( Care and Protection of
Children) Rules 2007 prescribes the procedure to be followed for
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Signed by: AMOL
NIVRUTTIRAO MAHANAG
Signing time: 04-09-2023
17:45:55
determination of age. This procedure needs to be followed for
determining age in civil as well s in criminal cases.
3/ For the sake of reference, Rule 12 in The Juvenile Justice
(Care and Protection of Children) Rules, 2007 reads as under :
"(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
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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
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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.
4/ But from perusal of the impugned order passed by the trial
Court and the record, it appears that in the instant case, no evidence as
per Rule 12(3)(a)(i) and (iii) were recorded before the trial Court.
Hon'ble Supreme Court in the case of Jarinail Singh Vs. State of
Harayana reported in 2013 (7) SCC 26 considered the scheme of
Rule 12 aforesaid and opined that in absence of certificate issued as per
Clause 12 (3)(a)(i), the date of birth entered in the school first attended
by the child can be treated as final and conclusive. At the cost of
repetition, in the present case, no such certificate issued by school first
attended by the child was produced. The Transfer Certificate was
although issued by primary school but the Admission Register of
primary school was not produced. Nobody entered the witness box to
prove any document issued by the school first attended by the child. In
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NIVRUTTIRAO MAHANAG
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(2010) 8 SCC 714 (Satpal Singh vs. State of Haryana), the Court opined
there is nothing on record to corroborate the date of birth of the
prosecutrix recorded in the school register. It is not possible to ascertain
as to who was the person who had given her date of birth at the time of
initial admission in the primary school. It cannot be ascertained as who
was the person who had recorded her date of birth in the primary school
register. The primary school register was not produced and proved
before the Trial Court and, therefore, it was opined that it cannot be held
with certainty that the prosecutrix was major. We find support in our
view from the judgment of Satpal Singh (supra) and constrained to hold
that TC issued by previous school does not fulfill the requirement of
Rule 12 of the said rules.
5/ Therefore, on the basis of settled legal position of law, this
Court is of the considered opinion that the Court below has not followed
the due procedure for determination of age of the petitioner, therefore, in
the interest of justice, it will be appropriate to remit back the matter for
determination of the age of the petitioner according to law.
6/ Hence, the impugned order dated 07/03/2023 is hereby set
aside and the matter is remanded back to the trial Court to decide the
application of the petitioner regarding determination of his age
according to Rule 12 of the Juvenile Justice ( Care and Protection of
Children) Rules 2007 by giving sufficient opportunity to both the parties
to adduce oral evidence as well as documentary evidence according to
law.
7/ In light of the aforesaid, present revision petition is
disposed of.
CC as per rules.
(ANIL VERMA)
JUDGE
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Signed by: AMOL
NIVRUTTIRAO MAHANAG
Signing time: 04-09-2023
17:45:55
amol
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Signed by: AMOL
NIVRUTTIRAO MAHANAG
Signing time: 04-09-2023
17:45:55
