CR.RA/105/2008 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No.105 of 2008 For Approval and Signature: HONOURABLE MR. JUSTICE BANKIM N. MEHTA ================================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 To be referred to the Reporter or not? 3 Whether Their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? 5 Whether it is to be circulated to the Civil Judge? ================================================================= MUKESH JAGDISHBHAI VASAVA - Petitioner Versus STATE OF GUJARAT - Respondent ========================================================= = Appearance : MR KASHYAP R JOSHI for Petitioner. MR KC SHAH, APP for Respondent. ========================================================= = CORAM : HONOURABLE MR. JUSTICE BANKIM N. MEHTA Date : 09/05/2008 ORAL JUDGMENT The petitioner-accused has filed this Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 [“the Code” for short] and challenged the order dated CR.RA/105/2008 2/12 JUDGMENT 25.01.2008 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Bharuch, below application, Exhibit 69 in Sessions Case No.88 of 2006. 2. The petitioner-accused is being prosecuted for the offences punishable under Sections 376, 342, 506(2) and 306 of the Indian Penal Code pursuant to the F.I.R. registered with Nabipur Police Station at C.R.No.I-49 of 2006 on 27.06.2006. 2.1 The petitioner-accused filed an application, Exhibit 69, under the provisions of the Juvenile Justice (Care & Protection of Children) Act, 2000 [“the Act” for short] contending that his birth date is 21.11.1988 and, therefore, on 27.06.2006 when the complaint was filed, he was below the age of 18 years as his age was 17 years 7 months and 6 days. Therefore, under the provisions of the said Act, the Court has no jurisdiction to try the case and it is required to be transferred to appropriate Court. 2.2 After hearing, the learned trial Judge came to conclusion that the birth-date was not got registered by the father of the petitioner- accused at Panchayat and the evidence of uncle of the petitioner-accused, Mr.Jivanbhai, who got the birth registered at the Panchayat, could not be believed and considering the medical opinion, it cannot be accepted that on the date of the offence, i.e. 26.06.2006, the petitioner-accused was a CR.RA/105/2008 3/12 JUDGMENT juvenile and, therefore, dismissed the application by the impugned order dated 25.01.2008. 2.3 Being aggrieved by the said decision, the petitioner-accused has approached this Court by way of filing this application. 3. I have heard Mr.K.R.Joshi, learned advocate for the petitioner-accused and Mr.K.C.Shah, learned Additional Public Prosecutor for the respondent-State, at length and in great detail. I have also gone through the paper-book produced by the learned advocate for the petitioner-accused. 4. Mr.Joshi, learned advocate for the petitioner, has submitted that sufficient evidence was taken by the trial Court in the inquiry to determine the age as required under the law, but the learned trial Judge committed serious error in not accepting the documentary evidence and relying upon the medical opinion, which could be relied upon only if such documentary evidence is not available. He has also submitted that the learned trial Judge committed error in directing the Investigating Agency in calling for medical opinion and, therefore, the impugned order being erroneous and perverse is required to be set aside. 5. Mr.K.C.Shah, learned Additional Public Prosecutor for the respondent-State, has submitted that the learned trial Judge has after CR.RA/105/2008 4/12 JUDGMENT following the procedure founded his conclusion and, therefore, he was justified in passing the impugned order. He has also submitted that there is no error in exercise of jurisdiction and, therefore, this application is required to be dismissed. 6. Under Section 7A of the Act, 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 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. Proviso to this Section also indicates 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 of the Act and the Rules made thereunder even if juvenile has ceased to be so on or before the date of commencement of the Act. Subsection (2) of Section 7A of the Act also provides that if the court finds a person to be juvenile on the date of commission of the offence, 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. 7. Section 2(c) of the Act defines term “Board” to mean a CR.RA/105/2008 5/12 JUDGMENT Juvenile Justice Board constituted under Section 4 of the Act. Section 2(f) defines 'Committee' to mean a child Welfare Committee constituted under Section 29 of the Act. Section 2(k) of the Act defines 'juvenile' or 'child' to mean who has not completed eighteenth year of age. Section 2(l) of the Act defines “juvenile in conflict with law” to mean a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. Section 4 of the Act provides that the State Government may constitute for every district one or more Juvenile Justice Boards for exercising the powers and discharging the duties conferred or imposed on such Boards in relation to juveniles in conflict with law under the Act. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 [“the Rules” for short] provides for procedure to be followed in determination of age. Sub-rule (2) provides that the Court or the Board 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. Sub-rule (3) provides that 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 following documents: (i) matriculation or equivalent certificates, if available, and in the absence whereof; CR.RA/105/2008 6/12 JUDGMENT (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. It further provides that only in the absence of above referred to documents, medical opinion will be sought from the duly constituted Medical Board, which will declare the age of juvenile or child and in case, exact assessment of 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. 8. In view of above, claim of juvenility can be raised before any Court even after disposal of the case and imposition of sentence. When such claim is raised before the Court, the Court is required to make inquiry by taking such evidence, but not an affidavit as may be necessary to determine the age of such person. After taking such evidence, the Court is required to record a finding whether the person is a juvenile or a child or not stating his age as nearly as may be. In order to make inquiry the Court is required to obtain any of the documents mentioned in Rule 12(3)(a)(i), (ii) and (iii), i.e. (i) 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) CR.RA/105/2008 7/12 JUDGMENT the birth certificate given by a corporation or a municipal authority or a panchayat. If any of such documents is not available then only medical opinion from a duly constituted Medical Board is required to be sought for. This clearly indicates that so long the documents are available, medical opinion could not be sought for. 9. In the instant case, the documents annexed with the compilation indicate that in the course of inquiry, the petitioner-accused produced a copy of birth certificate dated 16.10.2007 issued by Talati-cum- Mantri, Haldar Gram Panchayat, Taluka & District: Bharuch issued under the provisions of the Births & Deaths Registration Act, 1969 at Mark 71/2 and the school leaving certificate dated 19.06.2004 issued by Shree Lallubhai Jijibhai Vidyalaya, Haldar, Taluka & District: Bharuch at Mark 71/1. The learned trial Judge in the impugned order observed that both these documents were in the custody of the petitioner-accused, but he did not raise claim of juvenility till the case was kept for pronouncement of judgment after recording of his statement under Section 313 of the Code and has not offered any explanation as to why such claim was not raised till the stage of pronouncement of judgment, hence, enquiry is required to be conducted with regard to the age. Therefore, the Court by order dated 01.11.2007 passed below application Exhibit 69 issued summons to the witnesses, who had issued the certificates and also directed the Investigating Agency to obtain medical opinion and to inquire as to CR.RA/105/2008 8/12 JUDGMENT whether the name of the petitioner-accused is registered in the voters' list and also permitted the petitioner-accused to lead other evidence. Thereafter, the Court examined Principal of Shree Lallubhai Jijibhai Vidyalaya, Shri Hasmukhbhai Raijibhai Patel, at Exhibit 72 and Talati- cum-Mantri of Haldar Gram Panchayat Shri Natwarbhai Makanbhai Patel at Exhibit 73. Both these witnesses proved the school leaving certificate issued by the school authority and the birth certificate issued by the Panchayat respectively. The petitioner-accused also examined his uncle Shri Vasava Jivanbhai Karshanbhai at Exhibit 76, who went to register birth at the Panchayat and Ms.Gitaben Tushidas Rana, Principal of Primary School, Haldar, at Exhibit 77 to prove the age recorded in the primary school, the first school he attended. The witness-Ms.Gitaben had brought the original birth register wherein the birth date of the petitioner- accused was recorded in the Primary School. The Court also examined Dr.Vijay M. Bavishkar at Exhibit 75, who had examined the petitioner- accused with regard to medical opinion to determine the age. 10. After considering all this evidence taken in the enquiry, the Court came to the conclusion relying upon medical opinion that the petitioner-accused was aged about 18 years & 6 months on the date of offence and, therefore, refused to accept that the petitioner-accused was a juvenile on the date of commission of offence. CR.RA/105/2008 9/12 JUDGMENT 11. The Rules provide the procedure to determine the age of a juvenile. It provides that the Court may seek the evidence by obtaining matriculation certificate or equivalent certificate; and in absence thereof birth certificate from the school first attended; and in the absence thereof the birth certificate given by a corporation or a municipal authority or a panchayat. In the present case, the petitioner-accused produced birth certificate at Mark 71/1 issued by the Talati-cum-Mantri, Haldar Gram Panchayat under the provisions of the Births & Deaths Registration Act, 1969 [Annexure-B]. It indicates the birth date of the petitioner as 21.11.1988. The petitioner-accused also examined his uncle Vasava Jivanjibhai at Exhibit 76, who went to get the birth of petitioner-accused registered at Gram Panchayat. The petitioner-accused also produced School Leaving Certificate at Mark 71/2 issued by Shree Lallubhai Jijibhai Vidyalaya, Haldar, Taluka & District: Bharuch, a copy is at Annexure-C to the petition. It appears from the certificate that the birth date was 21.11.1988 and the last school attended by petitioner-accused was Primary School at Haldar. The entry with regard to birth date appears to have been made in the record of the school on the basis of birth date mentioned in the Primary School. Therefore, the Primary School was the school first attended by the petitioner-accused. 12. In order to prove the date of birth recorded in the school first attended by the petitioner-accused, the Court examined Smt.Gitaben CR.RA/105/2008 10/12 JUDGMENT Tulsidas Rana examined at Exhibit 77. The witness brought the birth register of the Primary School wherein the birth date of the petitioner- accused was recorded. It appears from her evidence that in the birth register maintained by the school, the birth date of the petitioner accused was recorded as 21.11.1988. Therefore, it becomes clear that sufficient documentary evidence as required under Rule 12 was taken in the inquiry to determine birth date of the petitioner-accused and the evidence indicated the birth date as 21.11.1988. This evidence was sufficient to determine the age of the petitioner-accused under the provisions of law. 13. In view of above, evidence necessary to determine age in the inquiry was obtained by the Court. Therefore, the Court was not justified in obtaining medical opinion as it could be sought only in absence of the documents mentioned in Rule 12(3)(a) (i), (ii) & (iii). It appears that such opinion was sought only because the petitioner-accused did not raise claim of juvenility till the stage of pronouncement of judgment. In my view, the Court committed error in seeking medical opinion. As observed earlier, an accused person has a right to raise claim of juvenility at any time and at any stage or even after disposal of the case. Therefore, the Court was not justified in seeking medical opinion simply because the petitioner-accused did not raise claim of juvenility earlier. The Court also committed error in not accepting the documents obtained in the enquiry and relying upon the medical opinion. CR.RA/105/2008 11/12 JUDGMENT 14. The Court examined Dr.Vijaykumar at Exhibit 75. The doctor gave his opinion on the basis of the test carried out by him as well as the dentist Dr.Sneha Parmar. As observed earlier, in view of the fact that there were documents as provided under the Rule, medical opinion could not be relied upon to determine the age nor the Court could have given direction to Investigating Agency to make inquiry about age recorded in Voters' list. Therefore, the impugned order is erroneous and perverse. 15. The evidence of birth certificate issued by the Panchayat and the evidence of witness Ms.Gitaben Tulsidas (Exhibit 77) - the Principal of Primary School first attended by the petitioner-accused with the birth register brought during the inquiry indicate that the birth date of the petitioner-accused was 21.11.1988. Therefore, the age of the petitioner was about 17 years, 7 months & 6 days and was a juvenile as defined under Section 2(k) of the Act and as he was charged with an offence, he was juvenile in conflict with law as defined under Section 2(l) of the Act. Therefore, the trial Court has committed serious error in passing the impugned order by not relying upon the documentary evidence obtained in the inquiry. 16. In view of the above, the error committed by the learned trial Judge has resulted into grave injustice to the petitioner-accused. Hence, the impugned order is required to be quashed and set aside. CR.RA/105/2008 12/12 JUDGMENT 17. In the result, this Revision Application succeeds. The impugned order dated 25.01.2008 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Bharuch, below application, Exhibit 69, in Sessions Case No.88 of 2006 is hereby quashed and set aside. It is held that the birth date of the petitioner-accused was 21.11.1988 and, therefore, his age on the date of commission of the alleged offence, i.e. 26.06.2006, was about 17 years, 7 months & 6 days and was a juvenile as defined under Section 2(k) of the Act and was a juvenile in conflict with law as defined under Section 2(l) of the Act. Therefore, the Sessions Court has no jurisdiction to try the offence charged against the petitioner-accused. The trial Court shall forthwith make arrangements to get the petitioner-accused released from Bharuch Sub-Jail and to produce him before the concerned Board on or before 21.05.2008 to enable the Board to take further actions in accordance with the provisions of the Act with regard to the trial of offence charged against him. Rule is made absolute accordingly. Direct Service is permitted. [Bankim N. Mehta, J.] Rajendra