Questions and answers on law (Part 45)

 Q 1:- In sessions triable case, one of the accused is juvenile. What order is to be passed to send him before Juvenile Justice Board?

Ans:- The court should follow procedure laid down by Supreme court in the case of Rishipal Singh Solanki v. State of Uttar Pradesh.

"The following questions arise for consideration:

(i) What is the procedure to be followed when a person claims juvenility in a regular court where he got arrayed as an accused?

(ii) What is the mode of proof in the matter of juvenility and the burden is upon whom?

(iii) Once it is found that the claim of juvenility in the affirmative, what should be the procedure to be followed?

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Whether is difference between procedure and effect of inquiry of age of juvenile before trial court and Juvenile justice Board?

 I would like to refer a recent decision rendered by the Apex Court reported in [2021 KHC 6718], Rishipal Singh Solanki v. State of Uttar Pradesh. In the said case, while dealing with the claim of juvenility raised by one among the accused, the Apex Court laid down the following principles:

“Dismissing the appeal, the Court held (B.V. Nagarathna, J.):

(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 S.9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, S.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 S.94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of S.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 S.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 S.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 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 S.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 R.12(3)(a)(i), (ii) and (iii) of the JJ R.2007 made under the JJ Act, 2000 or sub-section (2) of S.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 S.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 hypertechnical 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 S.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., S.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 S.94(2) of the JJ Act, 2015.”{Para 7}

9. In view of the above settled law, the question of juvenility raised by the petitioner herein has to be considered by the Assistant Sessions Judge as provided under Section 9(2) and (3) of the J.J. Act. In view of the matter, the proceedings before the Assistant Sessions Judge in so far as the petitioner is concerned, is reverted back to the stage before Section 228 of the Code of Criminal Procedure and the proceedings subsequent to that stage shall stand quashed.

 In the High Court of Kerala at Ernakulam

(Before A. Badharudeen, J.)

Arjun Reghu Vs State of Kerala

Crl.M.C. No. 599 of 2021

Decided on June 6, 2022

Citation: 2022 SCC OnLine Ker 2891 : (2022) 3 KLT 895

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Can the court hold the accused as a Juvenile based on an unreliable school leaving record?

  The appellant sought to rely upon juvenility only on the basis of school leaving record in his application filed under Section 7A of the 2000 Act. Such school record is not reliable and seems to be procured only to support the plea of juvenility. The appellant has not referred to date of birth certificate in his application as it was obtained subsequently. Needless to say, the plea of juvenility has to be raised in a bonafide and truthful manner. If the reliance is on a document to seek juvenility which is not reliable or dubious in nature, the appellant cannot be treated to be juvenile keeping in view that the Act is a beneficial legislation. As also held in Babloo Pasi, the provisions of the statute are to be interpreted liberally but the benefit cannot be granted to the appellant who has approached the Court with untruthful statement. {Para 38}

39. Therefore, we find that the appellant has approached the Court with unclean hands as the documents relied upon by him are not genuine and trustworthy. Thus, we find that the appellant cannot be given benefit of juvenility. 

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 207 OF 2022 

Manoj @ Monu @ Vishal Chaudhary v. State of Haryana & Anr.

Bench: HEMANT GUPTA; V. RAMASUBRAMANIAN, JJ.

Dated: FEBRUARY 15, 2022

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Bombay HC: Court Should Lean In Favour Of Declaring Accused A 'Juvenile' In Borderline Cases

In paragraph 13 Hon’ble

Apex Court points out that if two views are possible on the age

of the juvenile, the court should lean in favour of holding the

accused to be juvenile in the border line cases.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION (APPCO) NO. 3 OF 2019

IN

CRIMINAL CONFIRMATION CASE NO. 1 OF 2017

Sandip Samadhan Shirsat @ Raghu Rokda  Vs  State of Maharashtra

CORAM : B.P. DHARMADHIKARI &

SANDEEP K. SHINDE, JJ.

PRONOUNCED ON : 22/10/2019

ORAL JUDGMENT (Per Dharmadhikari, J.) :

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How to ascertain age of juvenile if there are two different dates of birth in two different schools?

The question that confronts the Court is which of the two dates of birth is authentic. If 7th October, 1990 is to be accepted by the Court as the date of birth of the respondent No. 2 he would not be a juvenile. However, if the other date i.e. 10thAugust, 1993 is to be acknowledged, the respondent No. 2 would be a minor. The occurrence, as already noticed, took place on 8th April, 2010.

8. What we have before us is a situation where the person who claims to be a juvenile has two matriculation certificates. We have perused the documents in original which were required to be placed before the Court by the Board of High School and Intermediate Education, U.P. and the Central Board of Secondary Education in terms of the order of this Court dated 11th July, 2017.

9. We would not be wrong to proceed on the basis that the entries of date of birth in the school register(s) are made on the basis of the declaration to the said effect by the parents/guardian of the child at the time of entry of the child in the school. The earliest declaration in this regard is in the Amar Singh Children School as well as the Central Academy Senior Secondary School in whose registers the date of birth of the respondent No. 2 is recorded as 7th October, 1990. A perusal of the documents in original produced by the Central Board of Secondary Education pursuant to the order of this Court would indicate the existence of a certificate duly signed by the Principal of the said institutions that the particulars in the register including the date of birth of all the students had been brought to the notice of the parents/guardian of such students. The respondent No. 2 appeared in Class 10 examination i.e. matriculation examination from the Central Academy Senior Secondary School in the year 2005 and the date of birth certified by the CBSE is 7th October, 1990. After the respondent No. 2 failed in Class 10 examination in the year 2005 he migrated to Paniyara Inter College, Maharajganj, U.P. in the year 2005-2006 and there again on the basis of his own declaration his date of birth is recorded as 10th August, 1993. When the respondent No. 2 or his parents/guardian acting on his behalf had declared his date of birth initially as 7th October, 1990 which is recorded in the first matriculation certificate we do not see how there can be a reasonable basis for a subsequent date i.e. 10th August, 1993 to be entered in the school record of Paniyara Inter College, Maharajganj, U.P. to which school the respondent No. 2 had migrated in the year 2005-2006 after his failure in Class 10 examination of the CBSE. We are, therefore, of the view that it is the first declaration of date of birth, which is contained in the matriculation certificate issued to the respondent No. 2 by the CBSE i.e. 7th October, 1990 which should hold the field, a fact fortified by the own conduct of the said respondent No. 2 in making a declaration to obtain a PAN card stating that his date of birth is 12th March, 1985. On the basis of the aforesaid PAN card, the respondent No. 2 had, in fact, opened a bank account in the HDFC Bank at Gorakhpur, Uttar Pradesh. The said matriculation certificate coupled with the aforesaid ancillary facts lead the Court to conclude that the correct date of birth determined in accordance with the certificate contemplated under Rule 12 of the J.J. Rules so far as the respondent No. 2 is concerned is 7th October, 1990. He, therefore, was not a juvenile on the date of occurrence of the incident i.e. 8th April, 2010. Consequently, the respondent No. 2 is not entitled to the benefit of the provisions of the J.J. Act and is liable to be tried for the offence under Section 302 IPC in accordance with the provisions of the Code of Criminal Procedure, 1973. 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(Before Ranjan Gogoi, L. Nageswara Rao and Navin Sinha, JJ.)

Lok Nath Pandey.

v.

The State of Uttar Pradesh & Anr.

Criminal Appeal No.(s) 1296 of 2017

[Arising out of Special Leave Petition (Criminal) No. 1173 of 2015]

Decided on August 1, 2017

Citation: 2017 SCC OnLine SC 1097,AIR 2017 SC 3866

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Whether age of juvenile can be determined on the basis of affidavit ?

 We also remind all Courts/J.J. Board and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate etc. mentioned in Rule 12 (3) (a) (i) to (iii). The courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection.

34. "Age determination inquiry" contemplated under section 7A of the Act r/w 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 need 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 need 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 above mentioned 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.

SUPREME COURT OF INDIA

Ashwani Kumar Saxena Vs. State of M.P.

[Criminal Appeal No. 1403 of 2012 Special Leave Petition (CRL) No. 7271 of 2011]
Citation;2012 CR L J 4731 SC

K. S. RADHAKRISHNAN, J.

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