Primacy to be awarded to the educational certificates to determine the age of the child asper the Juvenile Justice Act. – Allahabad High Court.

Court No. 49 Case : HABEAS CORPUS WRIT PETITION No. 3921 Petitioner : Vandana @ Bandana Saini And Another Respondent : State Of U.P. And 5 Others Counsel for Petitioner : Anjeet Singh Hon ble Bachchoo Lal J Hon ble Shamim Ahmed J 1. Heard learned counsel for the petitioners Sri Anjeet Singh through video conferencing learned A.G.A. for the State and perused reliefs: 2. This writ petition has been filed seeking the following I) Issue a writ order or direction in the nature of habeas corpus commanding and directing the respondents Superintendent of Government Women s Asylum Khuldabad District Prayagraj to produce the detenue Vandana @ Bandana Saini before this Hon ble Court and to set free of detenue on her own sweet will and II) Issue a writ order or direction which this Hon ble Court may deem fit and proper in the circumstances of the case III) Award the cost of the writ petition in favour of the 3. This writ petition has been filed on behalf of petitioner no. 1 Vandana @ Bandana Sainithrough her husband Vivek Vivek Kumar petitioner no. 2 against whom F.I.R. was lodged on 24.05.2019 which was registered as Case Crime No. 131 of 2019 under Sections 363 366 120B I.P.C. and Section 7 8 of P.O.C.S.O Act 2012 Police Station Malwan District Fatehpur. As per the statement of the detenue recorded on 23.12.2020 under Section 164 Cr.P.C. in which she had stated her age to be 17 years. As per F.I.R version the age of the detenue is 16 years and 2 months. The detenue was sent in the custody of Superintendent of Government Women s Asylum Khuldabad District Prayagraj by order dated 25.12.2020 passed by Judge Child Welfare Committee Fatehpur. As per school leaving certificate of the detenue her date of birth is 02.04.2004 Thus she is minor. 4. Learned counsel for the petitioners submits that in medical report the age of the victim detenue has been opined about 19 years As per the medical report at the time of alleged incident the victim detenue was major. The victim detenue has solemnized her marriage with Vivek @ Vivek Kumar on 17.5.2019 in a Temple at Gujarat. The victim detenue in her statement recorded under Section 164 Cr.P.C. has not made any allegation against the petitioner no. 2 Vivek @ Vivek Kumar. It has further been submitted that in school leaving certificate her date of birth has wrongly been shown as 02.04.2004 but the real fact is that at the time of the alleged incident the victim detenue was major. 5. Learned A.G.A. submits that the victim detenue is a child below the age of 18 years as in her school leaving certificate of Class 8th the date of birth of victim detenue has been shown as 02.04.2004 copy of the same has been filed as Annexure 4 to the writ petition. In her own statement recorded under Section 164 Cr.P.C. the detenue has stated her age to be 17 years. Thus she is minor. Therefore there is no illegality in the order dated 25.12.2020 to keep the detenue in Government Women s Asylum Khuldabad District Prayagraj as she has refused to go with her parents. The order passed by the CWC is a judicial order which has not been challenged in the present writ petition and even against the said order remedy of appeal lies under Section 101 of Juvenile JusticeAct 2015 6. We have carefully considered the submissions of the learned counsel for the parties and perused the record of the writ petition. 7. Section 94(2) of the Juvenile Justice2015 provides for presumption and determination of age as under: 2) In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not the Committee or the Board as the case may be shall undertake the process of age determination by seeking evidence by obtaining i) the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board if available and in the absence thereof ii) the birth certificate given by a corporation or a municipal authority or a panchayat iii) and only in the absence ofandabove age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order." 8. Thus as per provisions of Section 94(2) of the J.J. Act the Child Welfare Committee or the Board has reasonable grounds for doubt as to whether the person brought before it is a child or not the Committee or the Board as the case may be shall undertake the process of age determination by seeking evidence by obtaining firstly the date of birth certificate from school or matriculation or equivalent certificate from the concerned examination Board if available and in the absence thereof secondly the birth certificate given by a corporation or a municipal authority or a panchayat and thirdly in absence of educational certificate or birth certificate as aforementioned the age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. Thus as per statutory mandate of Section 94(2) of the J.J. Act primacy is to be accorded to the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned Examination Board and only in absence thereof the birth certificate of a corporation or municipal authority or a panchayat can be looked into. When the certificates as provided under sub clausesandof sub Sectionof Section 94 is not available only then the medical evidence as provided in sub clauseis to be taken into consideration. In the present set of facts as per educational certificate the date of birth of the petitioner is 9. The "juvenile" has been defined in Section 2(35) of the J.J Act to mean a child below the age of eighteen years. The word "child has been defined in Section 2(12) of the J.J. Act to mean a person who has not completed eighteen years of age. The phrase "child in conflict with law" has been defined under Section 2(13) of the J.J. Act to mean a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence. Section 2(14) of the J.J. Act defines the phrase "child in need of care and protection" as under: 14) "child in need of care and protection" means a child i) who is found without any home or settled place of abode and without any ostensible means of subsistence or ii) who is found working in contravention of labour laws for the time being in force or is found begging or living on the street or iii) who resides with a personand such person a) has injured exploited abused or neglected the child or has violated any other law for the time being in force meant for the protection of child or b) has threatened to kill injure exploit or abuse the child and there is a reasonable likelihood of the threat being carried out or c) has killed abused neglected or exploited some other child or children and there is a reasonable likelihood of the child in question being killed abused exploited or neglected by that person or iv) who is mentally ill or mentally or physically challenged or suffering from terminal or incurable disease having no one to support or look after or having parents or guardians unfit to take care if found so by the Board or the Committee or v) who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated by the Committee or the Board to care for and protect the safety and well being of the child or who does not have parents and no one is willing to take care of or whose parents have abandoned or surrendered him or vii) who is missing or run away child or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed or viii) who has been or is being or is likely to be abused tortured or exploited for the purpose of sexual abuse or illegal acts or ix) who is found vulnerable and is likely to be inducted into drug abuse or trafficking or x) who is being or is likely to be abused for unconscionable gains xi) who is victim of or affected by any armed conflict civil unrest or natural calamity or xii) who is at imminent risk of marriage before attaining the age of marriage and whose parents family members guardian and any other persons are likely to be responsible for solemnisation of such marriage " 10. Section 37 of J.J. Act empowers the Child Welfare Committee that on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection it may on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child s wishes in case the child is sufficiently mature to take a view pass one or more of the following orders as provided in clausestoof Sub Sectionof Section 37. Section 37 of the J.J. Act is reproduced below: 37. Orders passed regarding a child in need of care and protection. The Committee on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection may on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child s wishes in case the child is sufficiently mature to take a view pass one or more of the following orders namely: a) declaration that a child is in need of care and protection b) restoration of the child to parents or guardian or family with or without supervision of Child Welfare Officer or designated social worker c) placement of the child in Children s Home or fit facility or Specialised Adoption Agency for the purpose of adoption for long term or temporary care keeping in mind the capacity of the institution for housing such children either after reaching the conclusion that the family of the child cannot be traced or even if traced restoration of the child to the family is not in the best interest of the child d) placement of the child with fit person for long term or temporary care e) foster care orders under section 44 f) sponsorship orders under section 45 g) directions to persons or institutions or facilities in whose care the child is placed regarding care protection and rehabilitation of the child including directions relating to immediate shelter and services such as medical attention psychiatric and psychological support including need based counselling occupational therapy or behaviour modification therapy skill training legal aid educational services and other developmental activities as required as well as follow up and coordination with the District Child Protection Unit or State Government and other agencies h) declaration that the child is legally free for adoption under section 38. 2) The Committee may also pass orders for i) declaration of fit persons for foster care ii) getting after care support under section 46 of the Act or iii) any other order related to any other function as may be 11. Section 37(1)(c) of the J.J. Act empowers the Child Welfare Committee to place a child in Children s Home or fit facility or Specialised Adoption Agency for the purpose of adoption for long term or temporary care keeping in mind the capacity of the institution for housing such children either after reaching the conclusion that the family of the child cannot be traced or even if traced restoration of the child to the family is not in the best interest of the child. The order dated 25.12.2020 passed by the Child Welfare Committee is in exercise of powers under Section 37 of the J.J. Act. Under the circumstances when undisputedly detenue petitioner is a juvenile within the meaning of Section 2(35) and is in need of care and protection within the meaning of Section 2(14) the order passed by the Child Welfare Committee under Section 37 is in exercise of powers under the J.J. Act cannot be said to suffer from any illegality. 12. It would be relevant to observe that Hon ble Supreme Court has consistently taken the view that the principles applicable for determining the age of "juvenile in conflict with law" are to be applied for determining the age of child victim vide Jarnail Singh Vs. State of Haryana1 Mahadeo Vs. State of Maharashtra2 and State of M.P. Vs. Anoop Singh3 7 SCC 263 214 SCC 637 37 SCC 773 procedure before the Judicial Magistrate First Class Jagadhri as also the statement made by her while appearing before the trial court and the manner in which she was subjected to cross examination there is no room for any doubt that the prosecutrix was forcefully taken away and that she was subjected to rape at the hands of the accused appellant Jarnail Singh and his three accomplices. It may still have been understandable if the case had been that she had consensual sex with the accused appellant alone. But consensual sex with four boys at the same time is just not comprehensible. Since the fact that the accused appellate Jarnail Singh and the prosecutrix VW PW6 had eloped together is not disputed. And furthermore since the accused appellant having had sexual intercourse with the prosecutrix is also the disputed. It is just not possible to accept the proposition canvassed on behalf of the accused appellant. We therefore find no merit in the instant submission 16. The contention advanced at the hands of the learned counsel for the accused appellant Jarnail Singh that while leaving her house on 25.3.1993 the prosecutrix VW PW6 had taken away a sum of Rs.3 000 needs a holistic examination. Whilst it is true that in the complaint Jagdish Chandrathe father of the prosecutrix VW PW6 had categorically mentioned that a sum of Rs.3 000 was missing from his residence and the said fact was duly mentioned in his complaint to the police dated 27.3.1993 yet he had not accuse the prosecutrix VW PW6 for having taken it away. The instant aspect in our considered view pales into insignificance on account of the statement made by Jagdish Chandrabefore the Trial Court. During the course of his deposition before the Trial Court he had asserted that he had mentioned that a sum of Rs.3 000 was missing from his residence but his wife Savitri Devi had found the aforesaid money from the residence itself a few days later. Accordingly the assertion made by the learned counsel representing the accused appellant to the effect that the prosecutrix VW PW6 had taken away a sum of Rs.3 000 when she left the house of her father on 25.3.1993 cannot be stated to have been duly proved. Besides the aforesaid it is apparent from the cross examination of the prosecutrix VW PW6 that a suggestion was put to her that besides cash she had taken away clothes and jewellery at the time of leaving her father’s house on 25.3.1993. The prosecutrix VW PW6 expressly denied the suggestion. There is no material on the record of the case to substantiate the said allegation. Therefore it is not possible for us to accept the accusation levelled by the accused appellant Jarnail Singh against the prosecutrix VW PW6 either on the issue of having taken away a sum of Rs.3 000 while leaving her house or that she left her house on 25.3.1993 along with clothes and jewellery. Accordingly the inference drawn by assuming the said factual position as true simply does not arise 17. The first contention advanced at the hands of the learned counsel for the appellant can be conveniently determined from another perspective. The High Court in the impugned order arrived at the conclusion that the prosecutrix VW PW6 was a minor at the time of occurrence on 25.3.1993 and had concluded that even if she had accompanied the accused appellant Jarnail Singh on 25.3.1993 of her own free consent and even if she had had sexual intercourse with the accused consensually the same would be immaterial. For consent of a minor is inconsequential 18. During the course of hearing of the present appeal learned counsel for the appellant vehemently contested the determination of the High Court in the impugned judgment wherein it had concluded that the prosecutrix VW PW6 was a minor. Insofar as the instant aspect of the matter is concerned it was pointed out that the sexual organs of the prosecutrix VW PW6 were found to be fully developed by Dr. Kanta Dhankar PW1. Her hymen was found to be ruptured. It was also seen during the medico legal examination of the prosecutrix VW PW6 that the vagina admitted two three fingers easily. Learned counsel for the appellant accused Jarnail Singh also invited our attention to the cross examination of Dr. Kanta Dhankar wherein she acknowledged having mentioned the age of the prosecutrix VW PW6 as 15 years on the basis of the statement made by the prosecutrix to her. Dr. Kanta Dhankar PW1 had also acknowledged that she had not got the ossification test conducted on the prosecutrix VW PW6 to scientifically determine the age of the prosecutrix. Based on the aforesaid it was averred that there was no concrete material on the record of the case on the basis of which it could have been concluded by the High Court that the prosecutrix was a minor on the date of occurrence 13. In the case of Independent Thought v. Union of India4 paras 95 96 97 107) Hon ble Supreme Court held as under: 95. Whatever be the explanation given the context and purpose of their enactment primacy must be given to pro child statutes over IPC as provided for in Sections 5 and 41 IPC. There are several reasons for this including the absence of any rationale in creating an artificial distinction in relation to sexual offences between a married girl child and an unmarried girl child. Statutes concerning the rights of children are special laws concerning a special subject of legislation and therefore the provisions of such subject specific legislations must prevail and take precedence over the provisions of a general law such as IPC. It must also be remembered that the provisions of the JJ Act as well as the provisions of the POCSO Act are traceable to Article 15(3) of the Constitution which enables Parliament to make special provisions for the benefit of children. We have already adverted to some decisions relating to the interpretation of Article 15(3)of the Constitution in a manner that is affirmative in favour of children and for children and we have also adverted to the discussion in the Constituent Assembly in this regard. There can therefore be no other opinion regarding the pro child slant of the JJ Act as well as the POCSO Act. 410 SCC 800 96. A rather lengthy but useful discussion on this subject of special laws is to be found in L.I.C. v. D.J. Bahadur in paras 52 and 53 of the Report. Briefly it was held that the subject matter and the perspective of the statute are determinative of the question whether a statute is a general law or a special law. Therefore for certain purposes a statute might be a special law but for other purposes as compared to another statute it might be a general law. In respect of a dispute between the Life Insurance Corporation and its workmen qua workmen the Industrial Disputes Act 1947 would be a special law vis à vis the Life Insurance Corporation Act 1956 but "when compensation on nationalisation is the question the LIC Act is the special statute". It was held as follows SCC pp.350 51 52. In determining whether a statute is a special or a general one the focus must be on the principal subject matter plus the particular perspective. For certain purposes an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. In law we have a cosmos of relativity not absolutes so too in life. The ID Act is a special statute devoted wholly to investigation and settlement of industrial disputes which provides definitionally for the nature of industrial disputes coming within its ambit. It creates an infrastructure for investigation into solution of and adjudication upon industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements From alpha to omega the ID Act has one special mission the resolution of industrial disputes through specialised agencies according to specialised procedures and with special reference to the weaker categories of employees coming within the definition of workmen. Therefore with reference to industrial disputes between employers and workmen the ID Act is a special statute and the LIC Act does not speak at all with specific reference to workmen. On the other hand its powers relate to the general aspects of nationalisation of management when private businesses are nationalised and a plurality of problems which incidentally involve transfer of service of existing employees of insurers. The workmen qua workmen and industrial disputes between workmen and the employer as such are beyond the orbit of and have no specific or special place in the scheme of the LIC Act. And whenever there was a dispute between workmen and management the ID Act mechanism was resorted to 53.What are we confronted with in the present case so that I may determine as between the two enactments which is the special The only subject which has led to this litigation and which is the bone of contention between the parties is an industrial dispute between the Corporation and its workmen qua workmen. If we refuse to be obfuscated by legal abracadabra and see plainly what is so obvious the conclusion that flows in the wake of the study I have made is that vis a vis "industrial disputes" at the termination of the settlement as between the workmen and the Corporation the ID Act is a special legislation and the LIC Act a general legislation. Likewise when compensation on nationalisation is the question the LIC Act is the special statute. An application of the generalia maxim as expounded by English textbooks and decisions leaves us in no doubt that the ID Act being special law prevails over the LIC Act which is but general law." Emphasis in original) The scope and amplitude of the two significant pro child statutes may now be examined in light of the law laid down by this Court including Sections 5 and 41 of the IPC i) The JJ Act 97. A cursory reading of the JJ Act gives a clear indication that a girl child who is in imminent risk of marriage before attaining the age of 18 years of age is a child in need of care and protection Section 2(14)of the JJ Act). In our opinion it cannot be said with any degree of rationality that such a girl child loses her status as a child in need of care and protection soon after she gets married. The JJ Act provides that efforts must be made to ensure the care protection appropriate rehabilitation or restoration of a girl child who is at imminent risk of marriage and therefore a child in need of care and protection. If this provision is ignored or given a go by it would put the girl child in a worse off situation because after marriage she could be subjected to aggravated penetrative sexual assault for which she might not be physically mentally or psychologically ready. The intention of the JJ Act is to benefit a child rather than place her in difficult circumstances. A contrary view would not only destroy the purpose and spirit of the JJ Act but would also take away the importance of Article 15(3) of the Constitution. Surely such an interpretation and understanding cannot be given to the provisions of the JJ Act." 107. On a complete assessment of the law and the documentary material it appears that there are really five options before us:To strike down as unconstitutional Exception 2 to Section 375 IPC in the present case this is also not a viable option since this relief was given up and no such issue was raised iii) To reduce the age of consent from 18 years to 15 years this too is not a viable option and would ultimately be for Parliament to decide To bring the POCSO Act in consonance with Exception 2 to Section 375 IPC this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro child statutes To read Exception 2 to Section 375 IPC in a purposive manner to make it in consonance with the POCSO Act the spirit of other pro child legislations and the human rights of a married girl child Being purposive and harmonious constructionists we are of opinion that this is the only pragmatic option available. Therefore we are left with absolutely no other option but to harmonise the system of laws relating to children and require Exception 2 to Section 375 IPC to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife the wife not being under eighteen years of age is not rape." It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the Framers of our Constitution can be preserved and protected and perhaps given impetus." 14. In the present set of facts it is not in dispute that as per the school leaving certificate of victim detenue the date of birth of the detenue is 02.04.2004. Hence keeping in mind the provisions of Section 94 of the J.J. Act the age recorded in the educational certificate cannot be discarded in the proceedings under the J.J. Act moreso when detenue in her statement recorded on 23.12.2020 under Section 164 Cr.P.C. has stated that her age is 17 years. 15. Once the detenue has been found to be a child as defined by Section 2(12) of the J.J. Act and allegedly a victim of a crime she would fall in the category of "child in need of care and protection" in view of clauses(viii) andof sub Sectionof Section 2 of the J.J. Act. Hence the order passed by the Child Welfare Committee placing the minor child in a Children Protection Home would be within its powers confers under Section 37 of the J.J. Act. 16. For all the reasons stated above the action of the respondent Nos.1 to 5 is neither without jurisdiction nor illegal nor perverse keeping in mind the provisions of the J.J. Act 2015. Therefore the detention of the detenue in Government Women s Asylum Khuldabad District Prayagraj cannot be said to be illegal so as to warrant issuance of a writ of habeas corpus. If the petitioner is aggrieved by the order dated 25.12.2020 passed by Judge Child Welfare Committee Fatehpur she is at liberty to take recourse to the remedy of an appeal provided under Section 101 of the J. J. Act 2015. 17. For all the reasons stated above the writ petition is 18. No order as to costs Order Date : 30.6.2021 SA

Summary: When the age of the child in question is under dispute, the date of birth from the school certificates is given primary importance and only in the absence of such a certificate can the court consider the birth certificate and medical evidence asper the statutory mandate of Section 94(2) of the juvenile justice act. This was held by the two-judge bench comprising of Hon’ble Justice Bachchoo Lal and Hon’ble Justice Shamim Ahmed in the case of Vandana @ Bandana Saini And Another Vs. State of U.P. And 5 Others [Habeas Corpus Writ Petition No. – 390 Of 2021].  The brief facts of the case are, an FIR was registered against the petitioner under sections 363,366,120B of the IPC. Asper the statement recorded under section 164 of the CrPC, the petitioner claimed her age to be 17 years. However, the FIR claims the age was 16 years and 2 months asper the school leaving certificate. Since she was a minor, the petitioner was sent in the custody of Superintendent of Government Women’s Asylum by order dated 25.12.2020 passed by Judge of the Child Welfare Committee. The petitioner has filed this writ petition in this court claiming that the order passed by the child welfare committee was perverse and beyond its jurisdiction since the petitioner was a major and cannot be treated as a juvenile. The counsel for the petitioner submits that the actual age of the petitioner is 19 years asper the medical report. It was also claimed that the school certificate had wrongly shown her date of birth to be 02.04.2004 but in reality, the petitioner was actually a major at the time of occurrence of the alleged event. The counsel for the respondent contends that the petitioner was below the age of 18 since the school leaving certificate claimed her age to be below 18. Moreover, in her own statement recorded, she claimed her age to be 17 years. Thus, the counsel claimed that the order was not illegal since the petitioner in question is a minor. The learned judges heard both the counsels and relied on section 94(2) of the Juvenile Justice (Care and Protection) act, 2015 to reach a conclusion. Asper this section, when the age of a person must be determined, the date of birth certificate from school must be first determined. If such a certificate is unavailable, the birth certificate from the municipal authority must be used as evidence. If both these above-mentioned certificates are unavailable, only then can the court rely on medical evidence to determine the age. Section 2(12) of the act interprets ‘child’ as any person below the age of 18. Section 37 of the act empowers the child welfare committee to pass orders for the benefit of such a child in need of care and protection. Thus, the court ruled that, “Under the circumstances, when undisputedly petitioner is a juvenile within the meaning of Section 2(35) and is in need of care and protection within the meaning of Section 2(14), the order passed by the Child Welfare Committee under Section 37 is in exercise of powers under the J.J. Act, cannot be said to suffer from any illegality”. Thus, asper the findings afore mentioned, the court ruled that the order by the Child Welfare committee was not perverse and was well within its ambit of jurisdiction.