Md. Nadim @ Sheikh Md. Nadim v. The State of Bihar

Judgment

1. The State of Bihar

2. Md. Arsad Barkati @ Guddu Babu, S/o Abdul Rahim R/o village- Sutihara, P.S.- Parihar, District- Sitamarhi ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s For the Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI ORAL JUDGMENT Date : 04-04-2024 Mr. Sanjay Kumar, Advocate Mr. Mukesh Kumar Singh, Advocate : :

1. The instant criminal revision is directed against the order, dated 19th of July 2022, passed by the learned Additional Sessions Judge, 1st Court-cum-Special Judge, Children's Court, at Sitamarhi, in connection with Criminal Appeal No. 13 of 2022, filed by the Opposite Party No. 2 herein, whereby and whereunder, the learned Appellate Court quashed and set aside the order, dated 18th of February 2022, passed by the learned Juvenile Justice Board (hereinafter referred to as the ‘JJB’) Sitamarhi in G.R. Case No. 3102 of 2019, arising out of Parihar P.S. Case No. 167 of 2019. The JJB declared the Petitioner to be a Child in Conflict with Law.

2. On the basis of a written complaint submitted by Patna High Court CR. REV. No.603 of 2022 dt.04-04-2024 the Opposite Party No. 2, police registered Parihar P.S. Case No. 167 of 2019 against altogether 18 persons, including the Petitioner, alleging, inter alia, that the accrued persons surrounded his brothers, namely, Md. Akram and Md. Arman and assaulted both of them with the help of lathi, gadasha, knife, sword, iron rod, etc., as a result of which, one of the brothers of the de facto complainant, namely, Md. Akram died.

In the FIR, the Opposite Party No. 2 purposefully recorded the age of the Petitioner as 25 years, although, at the time of alleged occurrence, the Petitioner was only 16 years of age. As the Petitioner took up the ground of his juvenility, he was produced before the Juvenile Justice Board, and upon inquiry, the JJB held that, on the date of occurrence, the Child in Conflict with Law (hereinafter referred to as the ‘CICL’) was aged about 15 years, 9 months, and 13 days. As the CICL was below 16 years of age, the learned Principal Magistrate, JJB, allowed Petitioner's application for bail, vide order, dated 2nd of March 2022.

4. Against the aforesaid order, the informant preferred an appeal before the Children's Court under the provision of Section 101 of the Juvenile Justice Act (Care and Protection of Children) Act, 2015 (hereinafter referred to as the Patna High Court CR. REV. No.603 of 2022 dt.04-04-2024 ‘said Act’). The said appeal, being Criminal Appeal No. 13 of 2022, was allowed by the Appellate Court, and the learned Judge, in appeal, held the Respondent/Petitioner herein not to be a CICL on the date of commission of offence.

5. On perusal of the impugned judgment, it is ascertained that the Appellate Court determined the age of the victim in the touchstone of Section 94 of the said Act. Sub- Section 2 of Section 94 states:- “94(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 of (i) and (ii) above, 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: or provided such age determination test conducted on the order of the Patna High Court CR. REV. No.603 of 2022 dt.04-04-2024 Committee or the Board shall be completed within fifteen days from the date of such order.

6. Indisputably, the Petitioner failed to produce any matriculation or equivalent certificate as per Section 94 (2)(i). The Petitioner relied upon birth certificate and school living certificates. The JJB, on the other hand, relied upon the report rendered by the Board of Doctors on the basis of an ossification test report dated 22nd of November 2021, wherein the age of the Petitioner was found to be 18 to 19 years on the date of medical examination i.e. 26th of October 2021. The JJB gave the benefit of variation and determined the age of the Petitioner as 15 years, 9 months, and 13 days on the date of occurrence. Therefore, the Petitioner was found to be a CICL.

7. The Informant/Opposite Party No. 2 herein relied upon the voter list and voter ID Card of the Petitioner and claimed that the Petitioner was not a CICL on the date of commission of offence.

8. The learned Advocate for the Petitioner first refers to a judgment of the Hon’able Supreme Court in the case of Vinod Katara Vrs. State of Uttar Pradesh reported in 2023 (2) BLJ SC 37. It is held by the Hon’ble Supreme Court that in deciding, whether accused is juvenile or not, hyper-technical approach should not be adopted. While appreciating the Patna High Court CR. REV. No.603 of 2022 dt.04-04-2024 evidence adduced on behalf of the accused in support of the plea that he is a juvenile, if two views are possible on the same evidence, Court should lean in favour of holding accused to be juvenile in border-line cases. Inquiry contemplated is not a roving inquiry. Court can accept as evidence something more than an affidavit, i.e. documents, certificates, etc. as evidence in proof of age. Mere opinion by a person as to accused looking one or two years older than age claimed by him or fact that accused told his age to be more than what he alleges in the case while being arrested by the police officer, would not hold much water. It is documentary evidence placed on record that plays a major role in determining age of a juvenile in conflict with law. It is only in cases where documents or certificates placed on record by accused in support of his claim of juvenility are found to be fabricated or manipulated, that Court, Juvenile Justice Board or Committee need to go for medical test for age determination. In those cases where plea of juvenility is raised at a belated stage, often certain minor tests are resorted to for age determination in absence of documents enumerated in Section 94 of the said Act.

9. It is contended by the learned advocate for the Petitioner that the Petitioner produced school-leaving certificate Patna High Court CR. REV. No.603 of 2022 dt.04-04-2024 from Sharda Dhanushdhari Sansakrit Primary & Madhyamik Vidyalaya Bajitpur, Bajpatti wherein date of birth of the Petitioner was recorded as on 14th of March 2003. The date of occurrence was on 8th of August 2019. Therefore, according to the school-leaving certificate, the Petitioner was aged about 16 years, 4 months, 25 days.

10. It was contended on behalf of the Respondents that the said school was closed prior to 2004 and the building of the school was collapsed in 2004. Thus, the birth certificate of the Petitioner was forged and fabricated.

11. During inquiry, the Board summoned one Diwakar Pathak on 3rd of April 2021, who happens to be the headmaster of the said school. He stated before the Board that the claimant was not a student of his school and the school has already been demolished in the year 2004. Therefore, there was no occasion to issue date of birth certificate as per the school register in the year 2014. Subsequently, the Petitioner brought another school certificate allegedly issued by B.R. National Convent School, Kachor, Sitamarhi, wherein his date of birth was recorded as on 14th of March 2003. According to the Petitioner, he was admitted to the said school on 9th of April, 2011 and left the school on 31st of March 2017. The headmaster Patna High Court CR. REV. No.603 of 2022 dt.04-04-2024 of the said school, namely, Shailendra Kumar Jha, however, stated that the Petitioner was never a student of B.R. National Convent School, Kachor, Sitamarhi. On behalf of the Petitioner, a certificate issued by the village Panchayat- Sutihara, was produced where his date of birth was mentioned as 14th of January, 2003. The said birth certificate issued by the Panchayat was subsequently cancelled, stating, inter alia, that it was prepared on the basis of false documents.

12. Under such circumstances, the JJB directed to conduct ossification test by constituting a Medical Board for determination of the age of the Petitioner. The Medical Board submitted its report on 22nd of November, 2021 and it was opined by the Medical Board that on the date of medical examination, the CICL was aged between 18 and 19 years.

13. The learned Advocate for the Petitioner also refers to another decision of the Hon’ble Supreme Court in the case of Rishipal Singh Solanki Vrs the State of Uttar Pradesh & Anr., reported in (2022) 8 SCC 602. In the aforesaid report, the Hon`ble Supreme Court was pleased to deal with all the relevant decisions on the provisions under consideration, and this Court is tempted to record paragraph 32 of the said decision:- Patna High Court CR. REV. No.603 of 2022 dt.04-04-2024 “32. The relevant decisions on the provisions under consideration could be referred to at this stage:

32.1. In Ashwani Kumar Saxena v. State of M.P. [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750 : (2013) 1 SCC (Cri) 594] , this Court opined that under Section 7-A of the JJ Act, 2000 obligated the Court to make an inquiry and not an investigation or trial under the Code of Criminal Procedure. The Court stated its opinion in the following words : (SCC p. 764, para 34) “34. … 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.”

32.2. Reference could also be made to another decision of this Court in Abuzar Hossain v. State of W.B. [Abuzar Hossain v. State of W.B., (2012) 10 SCC 489 : (2013) 1 SCC (Cri) 83] , wherein it has been summarised as under : (SCC pp. 509-10, para 39) “39.1. A claim of juvenility may be raised at any stage even after the final disposal of the case. It may be raised for the first time before this Court as well after the final disposal of the case. The delay in raising the claim of Patna High Court CR. REV. No.603 of 2022 dt.04-04-2024 juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in the appeal court.

39.2. For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility.

39.3. As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school- leaving certificate or the voters' list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh [Akbar Sheikh v. State of W.B., (2009) 7 SCC 415 : (2009) 3 SCC (Cri) 431] and Pawan [Pawan v. State of Uttaranchal, (2009) 15 SCC 259 : (2010) 2 SCC (Cri) 522] , these documents were not found prima facie credible while in Jitendra Patna High Court CR. REV. No.603 of 2022 dt.04-04-2024 Singh [Jitendra Singh v. State of U.P., (2010) 13 SCC 523 : (2011) 1 SCC (Cri) 857] the school-leaving certificate, documents viz. marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents, prima facie, inspire confidence of the court, the court may act upon such documents for the purposes of Section 7-A and order an enquiry for determination of the age of the delinquent.

39.4. An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of the age of the delinquent.

39.5. The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hypertechnical approach and the persons who are entitled to get benefits of the 2000 Act shall get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability. Patna High Court CR. REV. No.603 of 2022 dt.04-04-2024

39.6. Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at the threshold whenever raised.”

32.3. In Arnit Das (1) v. State of Bihar [Arnit Das (1) v. State of Bihar, (2000) 5 SCC 488 : 2000 SCC (Cri) 962] , this Court observed that while considering the question as to determination of the age of an accused for the purpose of ascertaining whether he is a juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced in support of the plea that he was a juvenile and, if two views may be possible, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. This is because the Act being a welfare legislation, the courts should be zealous to see that a juvenile derives full benefits of the provisions of the Act but at the same time it is also imperative for the courts to ensure that the protection and privileges under the Act are not misused by unscrupulous persons to escape punishment for having committed serious offences.

32.4. In Jitendra Ram v. State of Jharkhand [Jitendra Ram v. State of Jharkhand, (2006) 9 SCC 428 : (2006) 2 SCC (Cri) 623] , this Court has sounded a note of caution on the earlier observations made by it in Bhola Bhagat v. State of Bihar [Bhola Bhagat v. State of Bihar, (1997) 8 SCC 720 : 1998 SCC (Cri) 125] , wherein it was observed that an obligation has been cast on the Court that where such a plea is raised having regard to the beneficial nature of the socially oriented legislation, the same should be examined with great care. This Court referring to its decision in Bhola Bhagat [Bhola Patna High Court CR. REV. No.603 of 2022 dt.04-04-2024