1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 57 OF 2010 State (through Police Inspector Pernem Police Station). ... Petitioner versus Shri Aman s/o Ramsanhe Bhardwaj @ Amar Rajbhar, r/o native of village Kasalla Taluka & District Basti, U.P. ... Respondent Shri C. A. Ferreira, Public Prosecutor for the Petitioner. CORAM : N. A. BRITTO, J. DATE : 30TH JUNE, 2010. ORAL ORDER Heard Shri C. A. Ferreira, learned Public Prosecutor on behalf of the State. 2. This Criminal Writ Petition is filed by the State and is directed against Order dated 12-5-2010 of the learned Children's Court, Panaji by which the Presiding Officer of the said Court has decided that an inquiry be 2 held to find out whether the Respondent was a juvenile within the meaning of the Juvenile Justice(Care and Protection of Children) Act, 2000. 3. Some facts are required to be stated to dispose off this Criminal Writ Petition. 4. The Respondent herein appears to be the only accused who was being tried under Section 8(2) of the Goa Children's Act, 2003. Earlier, there was a co-accused who was sent up for trial along with him as an abettor but subsequently was granted pardon and examined in support of the case of the prosecution. 5. When the Respondent-Accused gave his plea of not guilty, it appears that the accused gave his age as 20 years, and this age, is stated to have been written down by him in the said plea; but when the statement of the accused was recorded, the accused told orally to the learned Judge that his age was 17 years. This was after the prosecution had examined all witnesses. Again, at the time of the arguments on behalf of the accused, it was reiterated that he was 17 years of age, and, therefore could not be tried by the Children's Court and had to be tried by the Juvenile Justice Board, constituted under the Juvenile Justice(Care and Protection of Children) Act, 2000. 3 6. The said plea taken on behalf of the accused has been accepted by the learned Children's Court, relying on a Judgment delivered by this Court(to which I was a party) in the case of Raju Pasla v. State of Goa(Judgment dated 30-11-2009 in Criminal Appeal No. 25 of 2009). 7. The learned Children's Court also relied on Section 7-A of the said Act of 2000 observing further that the provisions of Section 7-A of the said Act of 2000 were mandatory and the Court had to conduct an inquiry before proceeding further, and, therefore declined to pronounce the Judgment pending determination of the age of the Respondent/juvenile, as on the date of the offence. 8. Shri C. A. Ferreira, learned Public Prosecutor submits that the accused himself had given his age, as 20 years in the statement of the plea recorded of the accused, and, therefore the accused could not have resiled from the said statement of his age without further material being produced. Learned Public Prosecutor further submits that the learned Children's Court has mechanically directed the inquiry to be conducted merely based on the plea taken by the accused in his statement under Section 313 and the written submissions made in that regard, though such a plea was not raised earlier. Learned Public Prosecutor further points out that the Investigating Officer had also produced the appointment letter of the accused at the time of his evidence 4 which showed that the accused was born on 15-8-1989 . 9. Was the Children's Court to accept the age of the accused as 20 years because it was written down by the accused on the form of recording the plea or was the Court to accept the age of the accused as 17 years as orally told by the accused at the time of recording the statement under Section 313 of the Code and again in written submissions? Obviously the appointment letter was not proved. 10. Section 7-A of the Act of 2000 deals with the procedure to be followed when claim of juvenility is raised before any Court. Sub-Section(1) thereof provides that 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, and 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. The proviso below sub-section(1) states that a claim of juvenility may be raised before any Court and it shall be recognized 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. Sub-Section(2) of Section 5 7-A provides that 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 orders and the sentence, if any, passed by a Court shall be deemed to have no effect. 11. Rule 12 of the Juvenile Justice(Care and Protection of Children) Rules, 2007 deals with the procedure to be followed in determination of age. Sub-Rule(1) of Rule 12 provides that 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. Sub-Rule(2) states that 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. Sub-Rule(3) of Rule 12 states that in every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or a Board, as the case may be, the Committee by seeking evidence by obtaining - (a) (i) the matriculation or equivalent certificates, if available; and (ii) the date of birth certificate from the school (other than a play 6 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, 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 conclusive proof of the age as regards such child or the juvenile in conflict with law. Sub-Rule(4) further provides that if the age of a juvenile or a 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 a person concerned. 7 Sub-Rule(5) further provides that save and accept 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 documentary proof referred to in sub-rule(3) of this Rule. 12. The Division Bench in the case of Raju Pasla v. State of Goa(supra) reiterated the legal position observing that Section 7-A makes a provision for a claim of juvenility to be raised before any Court at any stage, even after final disposal of a case and sets out the procedure which the Court is required to adopt, whenever such claim of juvenility is raised. It provides for an inquiry, taking of evidence as may be necessary(but not an affidavit) so as to determine the age of a person, and to record a finding whether the person is a juvenile or a child or not. The Division Bench also observed that the Act of 2000 defines a juvenile in conflict with law as a juvenile who is alleged to have committed the offence and has not completed 18 years of age as on the date of commission of such offence. The Division Bench also noted that although the claim of juvenility was raised before the trial Court, yet no inquiry was conducted in relation to the fact whether the accused was a juvenile at the time of incident and further observed that the word “shall” in Section 7-A show that it is mandatory to conduct an inquiry, and, therefore 8 proceeded to remand the case to the Children's Court for conducting an inquiry in accordance with law. 13. The Apex Court in Hari Ram v. State of Rajasthan((2009)13 SCC 211) has stated that juvenility is to be reckoned on the date the offence was committed and not on the date cognizance was taken. The Apex Court has also held that, with reference to Section 2(l) which defines a juvenile in conflict with law that determination of age assumes great importance in matters brought before the Juvenile Justice Boards; and it is also observed that the determination of age assumes special importance and the said responsibility has been cast on the said Board. The Apex Court has further observed that:- “Sub-Rules(4) and (5) of Rule 12 are of special significance in that they provide that once the age of a juvenile or child in conflict with law is found to be less than 18 years on the date of offence on the basis of any proof specified in sub-rule(3), the Court or the Board or as the case may be the Child Welfare Committee appointed under Chapter IV of the Act, has to pass a written order stating the age of the juvenile or stating the status of the juvenile, and, no further inquiry is to be conducted by the Court or Board after examining or obtaining any other documentary proof referred to in sub-rule(3) of Rule 12. Rule 12, therefore, indicates the procedure to be followed to give effect to the provisions of Section 7-A when the claim of juvenility is raised”. 9 14. The Apex Court has also noted that often, parents of children who come from rural backgrounds are not aware of the actual date of birth of a child, but relate the same to some event which may have taken place simultaneously. In such a situation, the Board and the Courts will have to take recourse to the procedure laid down in Rule 12. 15. Admittedly, at no stage has the learned Children's Court given a finding that the accused was a juvenile or not. The expression “whenever” in Section 7-A of the Act is an indication to show that there is no particular stage when the claim of juvenility is required to be raised and the proviso further shows that it can be raised at “any stage” even after the final disposal of the case and when it is raised, it is required to be determined in terms of the Act and the Rules. The age given by the accused at the time of recording his plea cannot be a substitute to a judicial determination based on documents mentioned in Sub Rule(3) of Rule 12 of the Rules which alone can be considered as conclusive proof of age. Similarly, the appointment letter, even if it was proved, could not be a substitute. 16. I have already noted that the appointment letter was not proved. It is not unknown that in matters of employment many a time a higher age is given and it is otherwise quite probable that the age given was on the higher side to secure the employment. The accused having raised the plea of 10 juvenility at the stage of statement under Section 313 of the Code and again in written submission, there was no other option to the learned Children's Court but to proceed with the inquiry as contemplated by Section 7-A and therefore the impugned Order cannot be faulted. 17. In conclusion, it may be stated that the age of the accused to find out whether he was a juvenile or not could be conclusively determined only after an inquiry is held in the manner indicated by Rule 12 of the Rules of 2007. The learned Children's Court therefore in my view was not wrong in deciding to proceed with the inquiry to determine the age of the accused since the accused had given different ages at two stages of the trial and there was no question of preferring one against the other. 18. 18. This is not a fit case to entertain this Criminal Writ Petition, and accordingly the same is dismissed in limine. N. A. BRITTO, J. RD 11 12 13 14 15 16 17 18