Crl. Rev. No. 2049 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Rev. No. 2049 of 2010 Date of Decision: 19.01.2011 Saurav Jha .... Petitioner Versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present : Mr. Bikramjit Arora, Advocate for Mr. Baljinder Singh, Advocate for the petitioner Ms. Bhavna Gupta, DAG Punjab for the respondent-State 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) Present petition is filed challenging the order dated 24.5.2010 passed by Addl. Sessions Judge, Kapurthala whereby application moved by the accused – Saurav Jha son of Achuta Anand to send him to Juvenile Justice Board was rejected. Allegation of Saurav Jha is that his date of birth is 30.10.1991 and occurrence took place in the midnight of 30.7.2008/1.8.2008, hence, on the date of occurrence he was juvenile as per the definition of Juvenile Justice (Care and Protection of Children) Act, 2000. Record reveals that school certificate as well school leaving certificate were produced before the Court to prove that date Crl. Rev. No. 2049 of 2010 2 of birth of Saurav Jha is 30.10.1991, however, learned trial Court on the basis of the Medical Report i.e. ossification test has found that Saurav Jha is major. Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 reads 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 Crl. Rev. No. 2049 of 2010 3 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 in 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) ** ** ** ** (5) ** ** ** (6) ** ** ** ** From the perusal of the above Rule, it is ample clear that if question is raised either before the Court or the Board - As to Crl. Rev. No. 2049 of 2010 4 whether accused was juvenile on the date of occurrence ? The Court or Board or the Committee, as the case may be, shall decide age of the accused as per the procedure prescribed under sub Rule 3 of Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000. As per the Rule 12 (3) (a) (i), age shall be determined on the basis of matriculation or equivalent certificate and in the absence thereof as per Rule 12 (3) (a) (ii) on the basis of date of birth certificate from the school (other than a play school) first attended; and in the absence whereof, under Rule Rule 12 (3) (a) (iii) on the basis of birth certificate issued by a corporation or a municipal authority or a panchayat and only when evidence as per Rule 3(a)(i) or (ii) or (iii) are not available then on the basis of medical opinion as prescribed under Rule Rule 12 (3) (b). In the opinion of this Court, if matriculation certificate or equivalent certificate is available or in the absence thereof birth certificate of the school is available or in the absence thereof birth certificate issued by the Municipal Corporation/Local Authorities is available then age can not be decided on the basis of medical opinion and shall be decided as per Rule 3(a)(i) or (ii) or (iii). Sub Rule (b) of Rule 12(3) can be pressed in service to call for medical opinion when neither of the certificates as mentioned in Sub Rule (a) (i), (ii) or (iii) are available. My view stands fortified from the judgment of learned Single Judge of Rajasthan High Court in the case of Jeeta@ Jitender Vs. State, reported in 2010 (3) RCR Criminal Page 608. Crl. Rev. No. 2049 of 2010 5 Now question comes if Matriculation Certificate, school Certificate or Birth Certificate as required under Rule 12(3) (a) (i), (ii) or (iii) is produced before the Court should that be accepted as correct without asking for further evidence. In the opinion of this Court, if aforementioned certificate in original is placed before the Court and entries therein are corroborated by the independent witness i.e. father, mother, grand parents, guardian etc. etc. same should be presumed as correct in view of Section 35 read with Section 114(e) and (f) of the Evidence Act. Section 35 and Section 114(e) and (f) are being reproduced herein:- “35. Relevancy of entry in public record or an electronic record made in performance of duty.- An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by an other person in performance of a duty specially enjoined by the law of the country in which such book, register or record or record or an electronic record is kept, is itself a relevant fact. 114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Crl. Rev. No. 2049 of 2010 6 The Court may presume - (a) xx xx xx xx (b) xx xx xx xx (c) xx xx xx xx (d) xx xx xx xx (e) That judicial and official acts have been regularly performed. (f) That the common course of business has been followed in particular cases.” In the humble opinion of this Court in view of Section 35 and 114(e) and (f) of the Evidence Act if other party i.e. complainant or prosecution proves that entries of such certificate are not made in discharge of official duties or by an person in performance of his duties in maintaining the relevant records of the school or office entries are not made in common course of business then Court may refuse to accept the entries by assigning cogent reasons. In other words presumption attached to such certificate can be controverted only by cogent evidence. Mere suspicion about the relevancy of entries shall not be construed to mean that presumption attached has been controverted. This Court is of the opinion that when such certificate is either not produced or if produced presumption attached to it has been successfully controverted then only Court can ask for Medical Board opinion under Rule 12(3) (b) and not otherwise. In the present matter ossification test suggests that age of the accused would be between 17 to 21 years. From the Medical Crl. Rev. No. 2049 of 2010 7 report also entries in the certificate produced from the side of accused are not proved incorrect or false. Learned trial Court has disbelieved the certificate only on the ground none was summoned from the school to prove entries. Petition is allowed. Impugned order is set aside. Learned Trial Court shall decide the question of juvenile in accordance with law afresh within thirty days from the date certified copy of this order is placed before the trial Court. Petitioner shall appear before the trial Court on 2.2.2011. (ALOK SINGH) 19.01.2011 JUDGE reena