Ahithasam @ Saddam vs State of Karnataka

Anand Byrareddy, J.—This petition is posted for orders on office objections. The office objection is to the effect that the present petition is said to be filed against, an interim order and that a revision petition would not lie against the same.

The learned counsel for the petitioner however, would point out that this question of maintainability is no longer res-integra as not withstanding the fact that an interim order is under challenge, in effect as the same would render finality to the proceedings as to the claim for a declaration that the petitioner is a juvenile and that he should be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (Hereinafter referred to as the ''JJ Act'', for brevity). There is substance in the contention, the office objection is not tenable.

The facts of the case are that the petitioner is arrayed as accused No. 1 in a pending criminal case, in the background that one Mohammed Suban is said to have been killed during the intervening period between 8.30 p.m. and 9.00 p.m. on 11.5.2013. And it was strongly suspected that he was murdered by the petitioner and accused No. 2. Accused No. 2 has been enlarged on bail. However, insofar as the petitioner is concerned he is in custody. He had filed an application seeking that he be treated as a juvenile and be dealt with in accordance with the provisions of the JJ Act. The said application was considered by the Court below and it was found that the petitioner was relying on a Transfer Certificate issued by the erstwhile school in which the petitioner had pursued his studies, in the State of Bihar. The Court below had disbelieved the said certificate and had posted the matter for enquiry.

The concerned police had formed a team to investigate the veracity of the certificate produced and had visited the State of Bihar and had made enquires as regards the genuineness or otherwise, of the certificate produced by the petitioner, and had filed a report to state that the certificate could be accepted and that it was a genuine certificate. The Court below, however, has negated the said report and has held that the petitioner is not a juvenile, as no authenticated document has been produced, such as a birth certificate and has rejected the claim of the petitioner that he be treated as a juvenile. It is this order which is sought to be challenge in this petition.

The learned counsel for the petitioner would point out that in terms of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, (hereinafter referred as ''JJ 2007 Rules'', for brevity) the procedure to be followed in determination of age is provided for. The same is extracted here under for ready reference:

Rule 12: Procedure to be followed in determination of age:

(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such Juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining:

(a)(i) the matriculation or equivalent certificates, 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 the absence whereof;

(iii) the birth certificate given by a corporation 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 be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

The learned counsel would therefore point out that, as seen from the above Rule, the matriculation or equivalent certificate is the best form of evidence of age and the Transfer Certificate containing his date of birth issued by the school he last attended is sufficiently acceptable and is placed on a better footing than a certificate issued by the Municipal authorities. The Transfer Certificate produced by the petitioner having been enquired into and found to be authentic, could not have been negated and brushed aside by the Court below in denying a valuable right of the petitioner and therefore would seek for a declaration of the petitioner''s status as a juvenile.

The learned Government Pleader would submit that the Rule only provides the procedure and the discretion is ultimately available with the Court to accept or reject the evidence produced and in the discretion of the Court the certificate said to be relied upon by the petitioner was not satisfactory and therefore has rejected the same.

He would however submit that even if it is to be ascertained as to whether the petitioner is a juvenile or not, a Medical Board may be constituted to examine the age of the petitioner which would be conclusive proof of his age and when such a measure is available, the summary declaration of the petitioner''s status by this Court would short circuit the procedure and would take away the discretion exercised by the Court below and hence would seek that the petition be dismissed and the petitioner be left to his remedies.

However, in the circumstances of the case, when it is not denied the certificate which is required in law was available to the Court and which has been enquired into and held to be a genuine document, could not be negated and denied. It is not that the petitioner would go scot free as he would be dealt with as provided for in law and therefore there is no injustice caused in declaring that the petitioner''s age is considered in accordance with the certificate that is produced by him.

Accordingly, the petition is allowed. The order of the Trial Court, refusing to declare the petitioner as a juvenile is set aside. In terms of the certificate produced by the petitioner, he shall be treated as a juvenile as on the date of the incident, and dealt with accordingly.

The petition stands disposed of in terms as above.