CRIMINAL REVISION NO.2664 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: November 23, 2011 Satpal Sharma .....Petitioner VERSUS Vakil and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Ashit Malik, Advocate, for the petitioner. Mr. John Kumar, Advocate, for respondent No.1. Ms. Shruti Jain, AAG, Haryana, for the State. **** RANJIT SINGH, J. Being aggrieved against the order passed by the Juvenile Justice Board and upheld in an appeal, the petitioner has filed the present petition to impugn the order declaring the respondent as juvenile and to face the proceedings before a Juvenile Justice Board. FIR No.266 dated 13.9.2006 under Section 450 IPC is registered against the respondent, who claimed himself to be juvenile. He was given liberty to lead the evidence to establish his claim. In support of his claim, the respondent examined his father as CRIMINAL REVISION NO.2664 OF 2009 :{ 2 }: AW1, who gave evidence that the respondent was his 4th son and was aged 14 years. The witness also produced a copy of the certificate issued by the Board of School Education, Haryana, where the date of birth of the respondent-accused is recorded as 6.9.1993. The petitioner, when given a chance to counter the same, examined Chander Bhan, Assistant in the office of CDPO, who produced the record of certified copy of survey register, where the age of respondent-accused was mentioned as 7-1/2 years in the year 1994. The Principal Magistrate exercising the powers of Juvenile Justice Board held that the survey register is not authentic document. The person conducting the survey was also not examined. This document was accordingly rejected and the reliance was placed upon the school certificate where the date of birth was recorded as 6.9.1993 and the respondent-accused was declared juvenile. Against this, the petitioner filed an appeal before the Court of Sessions on the ground that no reliance could be placed on the certificate, once the person who had issued the certificate, has not been examined. Counsel for respondent No.1, on the other hand, submitted that certificate of middle examination is a reliable document having been issued by the public servant and is admissible in evidence, being a public document. Counsel has further urged that survey report is not an authentic piece of evidence, which can be relied upon. The Appellate Court found the submissions made by the petitioner without any merit and dismissed the appeal. It is observed that the petitioner was given an ample opportunity to lead evidence and he could have shown the certificate to be false etc. but they CRIMINAL REVISION NO.2664 OF 2009 :{ 3 }: could not rebut the same. The order passed by the Juvenile Justice Board was, thus, upheld. Counsel for the petitioner now submits that as per Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short, “the Rules”), the age is to be determined on the basis of evidence like the matriculation or equivalent certificate if available and in the absence of the same, the date of birth certificate from the school (other than the play school) first attended and in the absence whereof, the birth certificate given by Corporation or Municipal Authority or the Panchayat. In support, reliance is placed on Hari Ram Vs. State of Rajasthan and another, 2009(2) RCR (Criminal) 878. The Hon'ble Supreme Court in this case has made reference to Rule 12 of the Rules, which regulates the determination of the age of a juvenile on the basis of a school certificate. In fact, Rule 12 of the Rules, prescribes a procedure to be followed in determination of age and is 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 CRIMINAL REVISION NO.2664 OF 2009 :{ 4 }: 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 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 CRIMINAL REVISION NO.2664 OF 2009 :{ 5 }: 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 7A, 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 of 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.” It is on the basis of this Rule that the counsel contends that the date of birth certificate from the school first attended had to CRIMINAL REVISION NO.2664 OF 2009 :{ 6 }: be given preference over any other certificate in terms of Rule 12 of the Rules. It is not possible for me to accept the contention as raised by counsel for the petitioner. Rule 12 of the Rules apparently does not lay down any inflexible manner of determining the age on the basis of any particular document. This Rule prescribes a procedure, which is required to be followed, when the age of a juvenile is to be determined. As per this Rule, enquiry is to be conducted by the Court or the Board and while doing so, it can seek evidence by obtaining the matriculation or equivalent certificate, if available. It is only in the absence of the same that the date of birth certificate from the school first attended can be taken into consideration. If that is also not available, then the birth certificate given by the Corporation or Municipal Authority or Panchayat etc. can be so considered. The wording of the Rule makes it amply clear that the alternative evidence is to be considered only in case of absence of the first preferred evidence. The Hon'ble Supreme Court in Hari Ram's case (supra) has noticed the background in this regard by observing that often the parents of the children, who come from the rural background are not aware of the actual date of birth of the child but relates the same to some event, which had 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 of the Rules. Rather, it is observed that only in the absence of any such document as mentioned in Rule 12 would the Court or the Board consider medical opinion from a duly constituted Medical Board, which would declare the age of the CRIMINAL REVISION NO.2664 OF 2009 :{ 7 }: juvenile or a child. Not only this, the Hon'ble Supreme Court has also observed that hyper-technical approach should not be adopted while determining the question whether the accused was juvenile or not. As is held, if two views are possible on the evidence, the Court should lean in favour of holding the accused to be juvenile in border line cases. How Rule 12 of the Rules would help the cause of the petitioner is not understood. This Court in Criminal Revision No.967 of 2008 (Sudhir Vs. State of Haryana) decided on 19.9.2008 has held on the basis of law laid down in Partap Singh Vs. State of Jharkhand, 2005 (1) RCR (Crl.) 836 and Sannaila Subba Rao & Ors. Vs. State of Andhra Pradesh, 2008 (3) RCR (Criminal) 973 that the school leaving certificate can not be discarded from consideration. The Hon'ble Supreme Court in the cases noted above has held that School leaving certificate issued by the Headmaster with regard to the age of prosecutrix is a legal document having evidentiary value and had to be given due waitage. It is further observed that such date of births are recorded in the school register by the authorities in discharge of their public duty and entries in the school register may not be conclusive but has evidentiary value. Reference in this regard can also be made to State of Chhattisgarh Vs. Lekhram, 2006(1) Apex Criminal 696 and State of Chhattisgarh Vs. Lekhram, 2006(2) RCR (Criminal) 474. In the absence of other material, the value and preference can be attached to school leaving certificates. In view of the position noted above, the action of the Court in relying upon certificate is justified. The case would not call for any interference. CRIMINAL REVISION NO.2664 OF 2009 :{ 8 }: The revision is accordingly dismissed. November 23, 2011 ( RANJIT SINGH ) khurmi JUDGE