GAGAN KIIANNA v. STATE

Mr. Mukesh Gupta, APP for Sate with SI Shahi Ram PS Govind Puri. Respondent HON'BLE MS. JUSTICE MUKTA GUPTA ORDER

02.12.2011 The Petitioner is facing a trial in case FIR No. 69/2011 for offences %

1. under Section 363/376 IPG registered at PS Govind Puri. The Petitioner was arrested on 10*^'' April, 2011 and remanded to judicial custody where he continues to be lodged till date. The Petitioner filed an application under Section 7(A) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short J.J. Act)) claiming to be a juvenile. However, the said application of the Petitioner was dismissed by the Learned Metropolitan Magistratevide its order dated 23*^^ May, 2011.

2. The claim of the Petitioner for juvenility is based on the school leaving certificate dated 13^'^ August, 2001 issued by Rani Dutta Arya CRL.M.C.No.3721/2011 Page No. 1 of 6 Signature Not Verified Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Vidayala wherein the Petitioner had studied in Class 1^' during the year 2000-2001 and his date of birth was mentioned as S"" December, 1994. Thus, according to the Petitioner his age on the date of alleged offence i.e. on 11^'' March, 2011 was 16 years, 3 months and 3 days as per the school leaving certificate. The school leaving certificate has been verified by the Investigating Officer and found to be genuine. Not satisfied with the school leaving certificate the learned Metropolitan Magistrate got the medical examination of the Petitioner conducted wherein his age was opined to be above 18 years and below 20 years. On the basis of the medical examination report the Learned Metropolitan Magistrate vide the impugned order dated 23'^ May, 2011 held that the Petitionerat the time of alleged offence was more than 18 years and thus dismissed his application.

3. Learned counsel the Petitioner contends the Learned Metropolitan Magistrate wrongly interpreted Rule 12 of the Delhi Juvenile Justice (Care and Protection of Children) Rules, 2009 (in short J.J. Rules). It is contended that the date of birth mentioned in the school certificate prelitum. No adverse inference should be drawn against it. In terms of Rule 12 the Court was duty bound to seek evidence by obtaining the date of birth certificate from the school first attended and in the absence thereof entitled CRL.M.C. No.3721/2011 Page No. 2 of 6 to take recourse to other measures, as directed vide Clause 'b' of Rule 12(3), The finding of the Learned Metropolitan Magistrate that since the Petitioner remainedin the school for a very short periodi.e. from 1®' July, 2001 to 13^'' August, 2001, the said certificate cannot be relied is wholly erroneous. The length of study in a school is no criteria regarding the authenticity of the certificate. Reliance is placed on the decision of the Hon'ble Supreme Court in Shah Nawaz Vs. State of U.P.& Anr. JT 2011 ( 8) SC 475. In the alternative it is urged that even as per the ossification test the age of the Petitioneron 13"' May, 2011 was opinedto be above 18 years and below 20 years. Thus, on the date of offence in case two months are further reduced the age of the Petitioner would still be less than 18 years and he would on that count also be entitled to the benefit of juvenility under Section 7(A) of the J.J. Act.

4. I have heard learned counsel for the parties. The facts are undisputed. The school leaving certificate has been verified as per which the date of birth of the Petitioner is S"' December, 1994. The reason that the Petitioner studied in the school for short duration can be no reason to doubt the date of birth mentioned in the said certificate, when on verification it has been found to be genuine from the school authorities. In S/za/z Nawaz (supra) CRL.M.C. No.3721/2011 Page No. 3 of 6 lion'ble Supreme Court held: 5 "8. Similarly, this Court has treated the date of birth in School Leaving Certificate as valid proof in determining the age of an accused person. In Bhoop Ram v. State of U.P.: (1989) 3 SCC therein is 1, this Court entitled lesser for life and should have been treated as a "child" within the meaning of Section 2(4) of the U.P. Children Act, 1951 (1 of 1952). The following conclusion in para 7 is relevant which reads as under: considered whether imprisonment than imprisonment the Appellant

7...The first is that the Appellant has produced a school certificate which carries the date 24-6-1960 against column "date of birth". There is no material before us to hold that Appellant or that their particulars.... the school certificate does not the entries therein are not correct relate to the It is clear from the above decision that this Court relied on the entry made in the column "date of birth" in the School Leaving Certificate. or not, a hyper-technical

10. In Arnit Das v. State of Bihar: (2000) 5 SCC 488, this Court held that while dealing with a question of determination of the age of an accused, for the purpose of finding out whether he is a approach should not be juvenile adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he is a juvenile and if two views may be possible on the same evidence, the court should lean in favour of holding the accused to be juvenile in borderline cases. Certificate

11.07.2007 is School 18. Another document relied on by the Appellant by Nehru Leaving Preparatory School, Khurd, Muzaffamagar wherein it noted the student's name, date of registration No., name of the school, name, occupation, residential school, date of leaving of school. The certificate contained the address, date of admission (18.06.1989) written also, Father's in words issued caste, CRL.M.C. No.3721/2011 PageNo.4of6 signature and seal of the Head Master and the same is dated 11.07.2007. t. school certificate

19. The documents furnished above clearly show that the date of birth of the Appellant had been noted as 18.06.1989. Rule 12 of the Rules categorically envisages that the medical opinion from the medical board should be sought only when the matriculation or any birth certificate issued by a corporation or by any Panchayat or municipality is not available. We are of the view that though the Board has coiTectly accepted the entry relating to the date of the Additional birth in the mark sheet and school certificate, Sessions Judge and the High Court committed a grave error in determining the age of the Appellant ignoring the date of birth mentioned in those documents which is illegal, erroneous and contrary to the Rules. certificate the entry relating to date of birth 20. We are satisfied that entered in the mark sheet is one of the valid proof of evidence for determination of age of an accused person. The School Leaving Certificate is also a valid proof in determining the age of the accused person. Further, the date of birth mentioned in the High School mark sheet produced by the Appellant has duly been con-oborated by the School Leaving Certificate of the Appellant of Class X and has also been proved by the statement of the clerk of Nehru High School, Dadheru, Khurd-O-Kalan and recorded by the Board. The date of birth of the Appellant has also been recorded in School Leaving Certificate issued by the Principal of Nehru Preparatory School, Dadheru, Khurd-O-Kalan, Muzaffarnagar as well as the said date of birth mentioned in the school register of the said school at S. No. 1382 which have been proved by the statement of the Principal of that school recorded before the Board. Apart from the mother of the the clerk and the Principal of the school, the Appellant Appellant has categorically stated was born on 18.06.1989 and his date of birth in his academic to Class X is the same, namely, records his academic 18.06.1989, hence her statement from preparatory as 18.06.1989 on oath that corroborated C11L.M.C. No.3721/2011 Page No. 5 of 6 records which clearly depose his date of birth as 18.06.1989. Accordingly, the Appellant was a juvenile on the date of is 04.06.2007 as alleged in the FIR dated occurrence that 04.06.2007.

21. We are also satisfied that Rule 12 of the Rules which was brought in pursuance of the Act describes four categories of evidence which have been provided in which preference has been given to school certificate over the medical report."

5. In view of the fact that Section 7(A) is a beneficial legislation and has to be given meaningfuleffect, the order dated 23"' May, 2011 passedby the Learned Metropolitan Magistrate is set aside. Since the Petitioner was a juvenile at the time of alleged offence, the Learned Metropolitan Magistrate is directed to transfer the case file to the Juvenile Justice Board for proceeding in accordance with law in the matter.

6. Petition is disposed of Order dasti. DECEMBER 02, 2011 'ga' MUKTA GUPTA,J CRL.M.C. No.3721/2011 Page No. 6 of 6