Manikandan v. State rep. by The Inspector of Police, Rasipuram, Namakkal District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16.07.2008CORAMTHE HONOURABLE MR. JUSTICE K. MOHAN RAMCRIMINAL ORIGINAL PETITION No. 15935 of 2008Manikandan..PetitionerVs.State rep. byThe Inspector of Police,Rasipuram, Namakkal District,(in Crime No. 1043 of 2004)..RespondentPrayer:Criminal Original Petition to set aside the order dated31.1.2007 passed by the Assistant Sessions Judge, Namakkal in S.C. No.52 of 2006.For Petitioner::Mr.B. VasudevanFor Respondent::Mr.Hasan Mohamed Jinnah,Govt. Advocate (Crl.Side)O R D E R The above criminal original petition has been filed bythe second accused in S.C. No. 52 of 2006 on the file of AssistantSessions Judge, Namakkal to set aside the order dated 31.1.2007.2.The short facts that are necessary for the disposal ofthe criminal original petition are as hereunder:On the basis of a complaint given by one Krishnan, a case in CrimeNo. 1043/2004 came to be registered on the file of the respondent forthe alleged offence under Sections 323, 324, 325, 307 and 447 I.P.C. Theoccurrence is said to have taken place on 7.9.2004. In the complaint,the age of the second accused/petitioner herein has been mentioned as 17years whereas his date of birth is shown as 4.6.1987 in the transfercertificate issued by the school. Therefore, a petition in Crl. M.P.No. 792/2006 was filed to try the petitioner herein under the JuvenileJustice (Care and Protection of Children) Act, 2000 (hereinafter https://hcservices.ecourts.gov.in/hcservices/ referred to as the "Act") for separating the case as against him. Inthat petition, the Chief Judicial Magistrate held that the petitionerwas a "juvenile" as on the date of occurrence. Accordingly, the ChiefJudicial Magistrate sent a latter dated 14.12.2006 to the PrincipalSessions Court, Namakkal, to separate the case as against the petitionerherein. The learned Principal Sessions Judge directed the ChiefJudicial Magistrate to proceed in accordance with law to determine theage of the petitioner. Hence, the petitioner was sent for ossificationtest; x-rays were taken and the doctor has issued a certificateregarding the age of the petitioner and the doctor was examined as awitness. As per the report of the Radiologist, Ex-C1 and the x-ray –M.O.1 and on consideration of the evidence of the doctor, the learnedChief Judicial Magistrate held that the petitioner had completed 18years of age and his age, as on the date of the order was 20 years.Aggrieved by the said order, the petitioner has filed the presentcriminal original petition".3.Heard both sides.4.Learned counsel for the petitioner submitted that thoughas per the certificate issued by the school and the birth certificateissued by the Town Panchayat, Gengavalli, the date of birth of thepetitioner is 4.6.1987 and as on the date of occurrence namely,7.9.2004, the petitioner was a juvenile, the learned Chief JudicialMagistrate ignoring those marked documents and solely placing relianceon the ossification test and the Radiologist's report has come to theconclusion that the petitioner has completed 18 years of age and fixedhis age at 20. Learned counsel further submitted that only in theabsence of acceptable documentary evidence regarding the date of birthof a person, ossification test can be conducted.5.On the aforesaid submission, the learned GovernmentAdvocate (Crl.Side) was heard. Learned Government Advocate (Crl.Side)submitted that as per Section 2(k) of the Act "juvenile" has beendefined as hereunder:"Juvenile or a child means a person, who has notcompleted eighteenth year of age".Learned Government Advocate (Crl.Side) also brought to the notice ofthis Court Rule 12 of Juvenile Justice (Care and Protection of Children)Rules, 2007, (hereinafter referred to as the "Rules") which reads ashereunder:"12. Procedure to be followed in determination of Age:-(1)In everycase concerning a child or a juvenile in conflict with law, theCourt or the Board or as the case may be the Committee referred toin Rule 19 of these Rules shall determine the age of such juvenileor child or a juvnile in conflict with law within a period of thirtydays from the date of making of the application for that purpose. https://hcservices.ecourts.gov.in/hcservices/ (2)The Court or the Board or as the case may be the Committeeshall decide the juvenility or otherwise of the juvenile or thechild or as the case may be the juvenile in conflict with law, primafacie on the basis of physical appearance or documents, ifavailable, and send him to the observation home or in jail.(3)In every case concerning a child or juvenile in conflict withlaw, the age determination inquiry shall be conducted by the Courtor the Board or, as the case may be, the Committee by seekingevidence by obtaining-(a)(i)the matriculation or equivalentcertificates, 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 theabsence whereof;(iii)the birth certificate given by aCorporation 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 besought from a duly constituted Medical Board, which willdeclare the age of the juvenile or child. In case exactassessment of the age cannot be done, the Court or theBoard or, as the case may be, the Committee, for thereasons to be recorded by them, may, if considerednecessary, give benefit to the child or juvenile byconsidering his/her age on lower side within the marginof one year.and, while passing orders in such case shall, after taking intoconsideration such evidence as may be available, or the medicalopinion, as the case may be, record a finding in respect of his ageand either of the evidence specified in any of the clauses (a)(i),(ii), (iii) or in the absence whereof, clause (b) shall be theconclusive proof of the age as regards such child or the juvenilein conflict with law." According to the learned Government Advocate (Crl.Side), only inthe absence of date of birth certificate from the school ormatriculation or equivalent certificate, medical opinion will have to beobtained from a duly constituted Medical Board. But, in this case, thelearned Chief Judicial Magistrate, has failed to follow the procedurecontemplated under Rule 12 of the said Rules and therefore, he fairlysubmitted that the order dated 31.1.2007 has to be set aside. But, atthe same time, submitted that a direction has to be issued to the ChiefJudicial Magistrate to follow Rule 12 of the said Rules and conduct afresh enquiry to find out as to whether the transfer certificate andbirth certificate belonging to the petitioner are genuine after givingan opportunity of hearing to the respondent.6.I have considered the submissions made on either side. https://hcservices.ecourts.gov.in/hcservices/

7.A perusal of the order passed by the Chief JudicialMagistrate shows that the learned Chief Judicial Magistrate has failedto follow the procedure prescribed under Rule 12 of the said Rules. Areading of Rule 12 makes it abundantly clear that the Court whileconducting an inquiry for determining the age of a child or juvenile inconflict with law, shall seek evidence by obtaining (i) thematriculation or equivalent certificates, if available; and if suchcertificates are not available (ii) the date of birth certificate fromthe school (other than a play school) first attended. If both the abovecertificates are not available, then the Court can obtain (iii) thebirth certificate given by a Corporation or a Municipal Authority or aPanchayat. Only in the absence of any of the aforesaid certificates,the Court can seek medical opinion from a duly constituted MedicalBoard. The facts narrated above show that this is not a case where suchcertificates are not available. As pointed out above, the transfercertificate issued by the school and the date of birth certificateissued by the Panchayat are available on record. Therefore, the questionof referring the petitioner to the Medical Board or subjecting him toossification test does not arise. Therefore, the procedure followed bythe learned Chief Judicial Magistrate is not in accordance with law. Onthis sole ground, the order dated 31.1.2007 has to be set aside and itis accordingly set aside. But, as rightly pointed out by the learnedGovernment Advocate (Crl.Side), the genuineness and authenticity of thetransfer certificate and birth certificate belonging to the petitionershould be ascertained and that can be done by conducting an enquiry,after giving an opportunity of hearing to the respondent. Hence, thelearned Chief Judicial Magistrate is hereby directed to conduct anenquiry regarding the genuineness and authenticity of the transfercertificate and birth certificate pertaining to the petitioner, whichhave been produced and thereafter proceed further as contemplated underRule 12 of the said Rules. The criminal original petition is disposedof accordingly. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarnvTo1. The Inspector of Police,Rasipuram, Namakkal District. https://hcservices.ecourts.gov.in/hcservices/

2. The Assistant Sessions Judge,Namakkal.3. -do-thro' The Principal Sessions Judge,Namakkal.4. The Public Prosecutor,High Court, Madras.1 cc To Mr.B.Vasudevan, Advocate, SR.37932.Crl.O.P. No. 15935 of 2008 RL(CO)RVL 28.08.2008