2009 ALL MR (Cri) 3179
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.A. BOBDE, J.

Rafiq Ahmed Saeed Ahmed Vs. State Of Maharashtra

Criminal Writ Petition No.1663 of 2009

5th October, 2009

Petitioner Counsel: Mr. A. R. SHAIKH
Respondent Counsel: Mr. S. N. GAWADE

Juvenile Justice (Care and Protection of Children) Act (2000), S.7A - Maharashtra Juvenile Justice (Care and Protection of Children) Rules (2002), R.12(3) - Age of juvenile - Determination of - Held, trial Court must decide on basis of evidence in the order in which it is referred to in sub-rule (3) and determine age conclusively - In case the trial Court did not believe the certificate, it ought to have sought opinion of Medical Board for determining age of the accused.

The trial Court must decide on the basis of evidence in the order in which it is referred to in sub-rule (3) and determine the age conclusively. In case the trial Court did not believe the certificate, it ought to have sought the opinion of the Medical Board for determining the age of the accused. The Court has completely ignored the requirement of rule 12 which has not been referred to by it. In doing so, the order has resulted in defeating the purpose of the Act, which was enacted to consolidate the law relating to juvenile in conflict with law and children in need of care and protection by adopting a child friendly approach in the adjudication and disposition of matters in the best interests of children and for their ultimate rehabilitation. This law has been enacted, inter alia, in discharge of the primary responsibility of the State for ensuring that all the needs of the children are met and their basic rights are fully protected vide clause (3) of Article 15, clauses (e) and (f) of Article 39 and Articles 45 and 47 of the Constitution of India and in pursuance of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations and ratified by the Government of India. If a person is found to be a juvenile, the Court is bound to ensure that the trial is in accordance with the Act. This is obviously not possible if the trial Court fails to determine the age of the juvenile when raised before it. It was not permissible for the trial court to reject the application without sufficient reasons and because the prosecution has disputed the contents of the birth certificate and the contents of the extract of birth register, the trial Court was duty bound in law to exhaust the modes of determining the age provided by the law and render a clear finding about the age of the petitioner. This not having been done, the impugned order is set aside. The matter is remanded back to the trial Court for a fresh decision, in accordance with law. [Para 7]

JUDGMENT

JUDGMENT :- By this petition, the petitioner challenges the order dated 22.5.2009 passed by the Addl. Sessions Judge, Malegaon, declining to determine the age of the petitioner on the ground that the issue of age can be resolved only after evidence is led at the trial. Offences under sections 143, 147, 148, 307, 302, 452 and 506 read with 34 of the Indian Penal Code and sections 4 and 25 of the Arms Act have been registered against the petitioner and others. The petitioner was arrested on 20.5.2008.

2. In the remand report, the petitioner's age was mentioned as 19 years. The petitioner made an application to the Court stating that his date of birth is 12.01.1992 and that he was a juvenile below the age of 18 years at the time of the commission of the alleged crime. The petitioner, therefore, prayed in his application for being tried under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, hereinafter referred to as the "Act". For proof of his age, he placed reliance on the birth certificate and extracts of birth register.

3. The application was opposed by the prosecution on the ground that the remand report shows the petitioner's age to be 19 years and that is bail application also describes him as a major. Apparently, the petitioner stated in his memorandum statement recorded in the presence of panchas that he was a major. The trial Court considered several aspects of the matter such as the date of the trial, commencement of the trial or the date of occurrence of the offence for determining the age. However, while concluding, the trial Court relied on the age mentioned by the petitioner in the bail application and the remand papers and observed that the A.P.P. has disputed the correctness of the birth certificate as unreliable. Accordingly, the trial Court has observed that the age of the petitioner has not been authentically proved and, therefore, proceeded to reject the application.

4. Mr. Shaikh, the learned counsel for the petitioner, submits that the Act requires the Magistrate before whom a person is produced to determine the age of the person. Section 7 of the Act reads as follows :-

"7. Procedure to be followed by a Magistrate not empowered under the Act.-(1) When any Magistrate not empowered to exercise the powers of a Board under this Act is of the opinion that a person brought before him under any of the provisions of this Act (other than for the purpose of giving evidence), is a juvenile or the child, he shall without any delay record such opinion and forward the juvenile or the child and the record of the proceeding to the competent authority having jurisdiction over the proceeding.

(2) The competent authority to which the proceeding is forwarded under sub-section (1) shall hold the inquiry as if the juvenile or the child had originally been brought before it."

Section 7-A reads as follows :-

"7-A. Procedure to be followed when claim of juvenility is raised before any Court.- (1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be :

Provided that a claim of juvenility may be raised before any Court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect."

5. Mr. Shaikh, the learned counsel for the petitioner, then relied on rule 12 and submitted that the order of the learned trial Judge is not sustainable in law since the rule requires the trial Court to determine the age of a juvenile in conflict with the law within 30 days from the date of making an application for such purpose i.e. an application for determining the age. The learned counsel further submitted that the rule requires the Court to determine the age of the alleged juvenile based on evidence referred to in sub-rule (3) of that rule. According to the learned counsel, in the present case, the trial Court has not followed the mandate of the law and, therefore, the order is illegal. Rule 12 reads as follows :-

"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, 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 of the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances 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 the 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 7-A, 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 off 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."

6. It is clear from the provisions of the rule, in particular sub-rule (3) that the trial Court on the basis of matriculation or equivalent certificates and in the absence whereof, the date of birth certificate from the school first attended; and in the absence whereof, the birth certificate given by a corporation or municipal authority or a panchayat, in that behalf. Where and only where the aforesaid certificates are absent, the trial Court has to decide on the basis of medical opinion from a duly constituted Medical Board. The rule further makes it clear that where it is not possible for the Court to exactly assess the age, the Court is bound to give the benefit of doubt to the child or the juvenile by considering his age to be on the lower side within the margin of one year. In any case, it is incumbent on the trial Court to record a finding based on sections 7 and 7-A of the Act and rule 12 of the Rules. Sub-rule (3) of rule 12 states that while passing orders in such a case, the trial Court shall record a finding in respect of the age of the juvenile which is then treated as conclusive proof of the age as regards such child. From the impugned order, it appears that the only finding recorded by the trial Court is in paragraph 9 by observing as follows :-

"....... because in the present case the age of the accused have not been authentically proved and the prosecution has disputed the contents of the birth certificate and the contents of extract of the birth register."

7. The above finding results in a clear mis-carriage of justice. The trial Court has not given any reasons why it is of the opinion that the age has not been authentically proved. It appears that the trial Court formed its opinion because the prosecution disputed the contents of the birth certificate and the contents of the extract of the birth register. This is not permissible. The trial Court must decide on the basis of evidence in the order in which it is referred to in sub-rule (3) and determine the age conclusively. In case the trial Court did not believe the certificate, it ought to have sought the opinion of the Medical Board for determining the age of the accused. The Court has completely ignored the requirement of rule 12 which has not been referred to by it. In doing so, the order has resulted in defeating the purpose of the Act, which was enacted to consolidate the law relating to juvenile in conflict with law and children in need of care and protection by adopting a child friendly approach in the adjudication and disposition of matters in the best interests of children and for their ultimate rehabilitation. This law has been enacted, inter alia, in discharge of the primary responsibility of the State for ensuring that all the needs of the children are met and their basic rights are fully protected vide clause (3) of Article 15, clauses (e) and (f) of Article 39 and Articles 45 and 47 of the Constitution of India and in pursuance of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations and ratified by the Government of India. If a person is found to be a juvenile, the Court is bound to ensure that the trial is in accordance with the Act. This is obviously not possible if the trial Court fails to determine the age of the juvenile when raised before it. It was not permissible for the trial court to reject the application without sufficient reasons and because the prosecution has disputed the contents of the birth certificate and the contents of the extract of birth register, the trial Court was duty bound in law to exhaust the modes of determining the age provided by the law and render a clear finding about the age of the petitioner. This not having been done, the impugned order is set aside. The matter is remanded back to the trial Court for a fresh decision, in accordance with law. The trial Court shall decide the application within six weeks from the date the petitioner appears before it. The petitioner is directed to appear before the trial Court on 12.10.2009. Order accordingly.

8. The Criminal Writ Petition stands disposed of.

Ordered accordingly.