====================================================== Anup Singh @ Anup Kumar Singh @ Aup Kumar, son of Rabindra Singh v. No.23, P.S.-Bhabua, District-Kaimur
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.91 of 2011 ====================================================== Anup Singh @ Anup Kumar Singh @ Aup Kumar, son of Rabindra Singh, resident of Bhabua Ward No.20, P.S.-Bhabua, District-Kaimur (Bhabua) .... .... Petitioner/s 1. The State of Bihar. 2. Nagina Singh, son of Late Deo Saran Singh, resident of Bhabua Ward Versus No.23, P.S.-Bhabua, District-Kaimur (Bhabua). .... .... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Diwakar Kishore, Adv. For the State : Mr. akshay Lal Pandit, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 4. 18-11-2013 Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor. Even having valid service Opposite Party No.2, informant failed to appear. Vide order dated 03.09.2010 prayer of the petitioner has been refused by the Juvenile Justice Board, Bhabhua at Kaimur as well as order dated 27.10.2010 passed by Additional Sessions Judge, F.T.C.-V, Bhabhua at Kaimur in Cr.
Legal Reasoning
Appeal No. 34 of 2010 / 3 of 2010 affirming the order of J.J. Board in connection with Bhabhua P.S. Case No.540 of 2009 which was initially registered under Section 364, 120B,34 of the IPC however is found subsequently added with Section 302, 201, 120B, 34 of the IPC as well as 27 of the Arms Act on the written report of Nagina Singh relating to kidnapping of his son Mantu Singh wherein petitioner is also named as one of the accused. During period of judicial custody, a plea was raised Patna High Court CR. REV. No.91 of 2011 (4) dt.18-11-2013 2 on behalf of petitioner regarding juvenility whereupon an inquiry commenced in terms of Section 7(A) of the Act and during course thereof, the witnesses were examined and the School Admission Register wherein petitioner had first attended was also made an exhibit along with examination of one of the member of the Medical Board as well as report of Medical Board had also been exhibited. The learned Juvenile Justice Board rejected the prayer on 03.09.2010 holding the age of the petitioner above the prescribed age that means to say 18 years on the alleged date of occurrence and in likewise manner the appellate court vide order dated 27.10.2010 dismissed the Criminal Appeal bearing No.34 of 2010 / 03 of 2010 filed on behalf of petitioner. Gone through the successive orders. In Ashwani Kumar Saxena v. State of M.P. reported in 2013(1) PLJR 156 (SC) the Hon’ble Apex Court had analyzed the whole scheme of Juvenile Justice Act, more particularly, relating to the incidence after introduction of Section 7(A) of the Act and explained. Manner of conduction of inquiry to be conducted for ascertainment of plea of juvenility:- “34. “Age determination inquiry” contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The Patna High Court CR. REV. No.91 of 2011 (4) dt.18-11-2013 3 question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year. 35. Once the court, following the abovementioned procedures, passes an order, that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in sub-rule (5) of Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of Rule 12. Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination. 36. Age determination inquiry contemplated under the JJ Act and the 2007 Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion, etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for medical report for age determination. 37. We have come across several cases in which the trial courts have examined a large number of witnesses on either side including the conduct of ossification test and calling for odontology report, even in cases, where matriculation or equivalent certificate, the date of birth certificate from the school last or first attended, the birth certificate given by a corporation or a municipal authority or a panchayat are made available. We have also come across cases where even the courts in the large number of cases express doubts over certificates produced and carry on detailed probe which is totally unwarranted.” Applicability of the rules framed under Juvenile Justice Act has been taken into consideration by the Division
Legal Reasoning
Bench in a case Sri Chandrika Sao Vs. State of Bihar & Ors. reported in 2013(2) BBCJ 213 wherein it has been held that the rules framed by State of Bihar in terms of Section 68 of the Patna High Court CR. REV. No.91 of 2011 (4) dt.18-11-2013 4 Juvenile Justice Act as Bihar Juvenile Justice (Care and Protection of Children) Rules, 2003 is found applicable. The aforesaid rules are found substituted by Bihar Juvenile Justice (Care and Protection of Children) Rules, 2012. Because of the fact that at the time of occurrence, at the time of passing of the order impugned, the Bihar Juvenile Justice (Care and Protection of Children) Rules, 2013 was applicable whereunder Rule 22 dealt with the manner of conduction of inquiry and further appreciation of the certificate in following manner: 22(5) In every case concerning a juvenile or a child, the Board shall either obtain – (i) a birth certificate given by a corporation or a municipal authority; or (ii) a date of birth certificate from the school first attended; or (iii) matriculation or equivalent certificate, if available; and (iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding in his age; and, when passing orders in such case shall, after taking into consideration such evidence as many be available or the medical opinion, as the case may be, record a finding in respect of his age. That means to say at first count the Juvenile Justice Board should have insisted for a birth certificate given by a Corporation or a Municipal Authority, in absence thereof birth Patna High Court CR. REV. No.91 of 2011 (4) dt.18-11-2013 5 certificate from the school first attended in absence thereof the matriculation or equivalent certificate and in absence thereof the medical opinion. From the order impugned, it is evident that Clause-1 has not been complied with at the end of the petitioner that means to say the birth certificate issued by Corporation or Municipality was not produced and in likewise manner there happens to be absence of matriculation or equivalent certificate. The birth certificate relating to the school first attended has been brought up on record by means to Exhibit-“C” as well as examination of the teacher but its genuineness has been doubted and on account thereof the learned lower had relied upon the Medical Board Report which has been proved by way of examination of one of the member of the Board. In Ashwani Kumar Saxena (Supra) the aforesaid contingency has been perceived and the same has been explained as “only in case where those documents or certificates are found to be fabricated or manipulated, court, the Juvenile Justice Board or the committee need to go for medical report for age determination.” Because of the fact that authenticity, genuineness of Ext.-“C” has been doubted, on account thereof asking for medical report happens to be permissible in the eye of law and is also Patna High Court CR. REV. No.91 of 2011 (4) dt.18-11-2013 6 found to be a document whereupon the Juvenile Justice Board could rely. As is evident, the Medical Board had given its opinion on 20-08-2010 disclosing the age of petitioner varying in between 17 to 19 years. The date of occurrence is dated 23.12.2009. Deducting the period of approximately 8 months the age of the petitioner varying in between 16 years 4 months to 18 years 4 months. Again coming to Rule-22(5)(iv), it is evident that the rule had given pilferage of margin of one year and on account thereof, the age of the petitioner is found within the grip of 18 years, the age so identified for application of Juvenile Justice Act. Now coming to the other aspect as perceived by the Juvenile Justice Board regarding physical appearance of petitioner and estimating age thereupon, is found a new theorem invented by the Juvenile Justice Board itself without having any sort of recognition under Juvenile Justice Act as well as rules framed there under as such, the successive orders passed by learned lower courts are set aside. Petition is allowed. As discussed above, petitioner, Anup Singh @ Anup Kumar Singh @ Aup Kumar is hereby declared juvenile in conflict with law. PN/- (Aditya Kumar Trivedi, J.)