1 S.B. Cr. Revision Petition No.158/2010 Kanhaiya Vs. The State of Rajasthan Date of Order :: 5th March, 2010 HON'BLE MR. MAHESH BHAGWATI,J. Mr. Satyendra Kumar Gupta, counsel for the petitioner Mr. G.S. Fauzdar, PP for the State. Challenge in this criminal revision petition is to the order dated 6th February, 2010 rendered by Additional Sessions Judge (Fast Track) No.2, Karauli, whereby the learned Additional Sessions Judge dismissed the application submitted under Sections 4, 18 and 19 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (here-in- after to be referred to as “Act 2000”) with regard to determination of age. 2. Contextual facts depict that one FIR came to be lodged at Police Station Kaila Devi against the accused petitioner Kanhaiya. The police arrested the accused treating him to be above the age of 18 years. The petitioner filed an application before Judicial Magistrate, Karauli praying that he was below the age of 18 years and in support thereof, he annexed the date of birth record, admission form of school, 2 transfer certificate issued by the School and Horoscope. The learned Additional Sessions Judge recorded the statements of AW-1 Hukum Chand, AW-2 Yogendra Pal, AW-3 Pandit Swaroop and took the aforesaid documents on record. The petitioner was also medically examined and a medical certificate with regard to the ascertainment of age was obtained. The petitioner relying upon the documents insisted that he was below the age of 18 years. E converso, the learned Additional Sessions Judge relied upon the medical examination report based on ossification test, which estimated the age of the petitioner to be above 20 years. The petitioner has impugned this order dated 6th February, 2010 passed by the Additional Sessions Judge (Fast Track) No.2, Karauli. 3. Heard learned counsel for the petitioner as also the learned Public Prosecutor appearing for the State and carefully perused the relevant material on record, including the impugned order. 4. Learned counsel for the petitioner canvassed that the occurrence took place on 3 10th April, 2009. On the date of occurrence, the petitioner was below the age of 20 years. This fact stands well proved by the entries of date of birth in admission form, transfer certificate and marks list issued by the Board. The learned counsel took me through these documents and contended that at the time of seeking admission of the petitioner in Babu Uchch Prathmik Vidhyalaya, his father recorded his age to be 1st January, 1992. This application form was filled on 4th January, 2000. It is also entered in the form that at the time of seeking admission, he was 8 years and 6 months old. In column no. 2 of the admission form, his father declared that prior to seeking admission in the school, the petitioner Kanhaiya had never taken any admission in any school. At the time of of leaving the school, the Head Master of Bapu Uchch Prathmik Vidhyalaya issued a Transfer Certificate in his favour, which also contained the date of birth of the petitioner to be 1st January, 1992. He appeared in Vth Standard examination, which 4 was equivalent to Block Level 5th Board Equivalent Examination, 2002, wherein the petitioner was declared pass in first division. In the marks sheet list of this examination also, the date of birth of the petitioner has been recorded as 1st January, 1992. To defeat this evidence, the police got the petitioner medically examined and the medical board estimated his age to be above 20 years on the basis of ossification test. 5. Learned counsel for the petitioner took me through the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter to be referred to as “Rules of 2007”) and contended that the medical opinion could be sought from a duly constituted Medical Board only when the matriculation or equivalent certificate or date of birth certificate from the school or birth certificate given by Corporation was not available. The learned Sessions Judge having boldly abandoned the legal procedure relied upon the medical certificate instead of school 5 certificate with regard to the age of the petitioner and arbitrarily held the age of the petitioner to be above 20 years, which is unjust and contrary to the provisions of law, therefore, the impugned order needs to be set-aside. 6. E contra, the learned PP appearing for the State has defended the order of the Additional Sessions Judge and stated the same to be just and proper. He submitted that the revision deserves to be dismissed. 7. Rule 12 of the Rules, 2007 is reproduced thus: “12.Procedure to be followed in determination of age:- (i) In very case concerning a child or a juvenile in conflict with law, the court of 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 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. 6 (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 whereof clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.” 8. Sub Rule 3 of Rule 12 of Rules of 7 2007 envisages that 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, as the case may be, or the Committee by seeking evidence by obtaining the matriculation or equivalent certificates, if available, and in the absence whereof; the date of birth certificate from the school and in the absence whereof, the birth certificate given by a corporation or a municipal authority or a panchayat. The medical opinion with regard to the age of the delinquent child shall be sought only when a birth certificate or school certificate or matriculation certificate is not available with him. The Hon'ble Apex Court in umpteen cases has repeatedly held that the conclusive evidence for any persons age is his/her birth certificate. 9. In the case titled of Bhoop Ram Vs. State of Uttar Pradesh reported in AIR 1989 sc 1329, the Hon'ble Apex Court has held that on the point of proof of age, school certificate is the basic evidence and so far 8 as the medical certificate is concerned, the same is based on estimate and possibility of error cannot be ruled out. 10. In the case of Harpal Singh and Anr. VS. State of Himachal Pradesh reported in AIR 1981, SC, 361, the Hon'ble Apex Court held that in the matriculation certificate or Board certificate or school certificate the entries with regard to the age are based on the entries in the birth register. These entries are admissible in evidence under Section 35 of the Indian Evidence Act. In the case of Nahar Singh Vs. State of Raj. And Anr. reported in WLC(Raj.)U.C (2002 at page 85, it has been held that when there are school certificate as also the opinion of the Medical Board with regard to the age are available on record, then in such a situation, school record or the matriculation certificate would prevail upon the medical opinion. 11. Rule 12 of the Rules 2007 categorically envisages that the medical opinion from the medical Board should be sought only when the matriculation certificate or school certificate or any 9 birth certificate issued by a Corporation or by any Panchayat or Municipality is not available. The learned court below seems to have committed grave error in determining the age of the petitioner, ignoring the date of birth mentioned in the documents, as mentioned above. His order, ex-facie, is found to be arbitrary, illegal, erroneous and contrary to the provisions of the rules 2007. 12. For the reasons stated above, the criminal revision petition filed by the petitioner is allowed. The impugned order dated 6th February, 2010, being contrary to the provisions of law, deserves to be set aside and the same stands set aside, accordingly. 13. The learned trial Court is directed to determine the age of the petitioner in accordance with the procedure laid down under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, within a period of fifteen days. (MAHESH BHAGWATI)J.