Balkar Singh vs State Of Punjab

Satish Kumar Mittal, J.—Petitioner Balkar Singh has filed this revision petition challenging the order dated 24th August, 2004, passed by

Addl. Sessions Judge, Mansa, dismissing the application filed by the Petitioner for separating his trial from the other accused u/s 18 of the Juvenile

Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Juvenile Justice Act), claiming himself to be a juvenile and for

releasing him on bail u/s 12 of the Juvenile Justice Act.

In this case, FIR No. 113 dated 28th December, 2002 was registered under Sections 308/366/34 IPC against the Petitioner and his two

brothers, namely Jagsir Singh and Wazir Singh, three days after the alleged occurrence, on the statement of Pargat Singh, brother of the deceased.

As per the version in the FIR, on 25th December, 2002, the aforesaid three accused caused injuries to Bhola Singh, brother of the complainant, as

they were suspecting that he was having illicit relations with their Bhabi''. It is alleged that Balkar Singh Petitioner gave a dang blow, which hit

Bhola Singh on his right flank above the stomach. Bhola Singh remained under treatment in Civil Hospital, Mansa, from 27th December, 2002 to

29th January, 2003. Thereafter, he remained at his house, but on 20th March, 2003, he died. Thereupon, the offence u/s 302 IPC was added,--

vide Rapat No. 10 dated 20th March, 2003.

During the investigation, the Petitioner was found innocent by the police, as his participation in the occurrence was not substantiated by any

evidence, therefore, he was kept in column No. 2.

After presentation of challan, charge under Sections 320/365 IPC was framed against the other two accused i.e. Jagsir Singh and Wazir Singh.

Subsequently, after the examination of the complainant, Petitioner was summoned u/s 319 Cr. P.C. to face trial along with other co-accused.

Pursuant to the summoning order, the Petitioner surrendered before the trial court and moved an application under Sections 12 and 18 of the

Juvenile Justice Act for grant of bail as well as for separation of his trial from the other accused being a juvenile. The Petitioner was taken into

custody and he was ordered to be released on interim bail,--vide order dated 28th May, 2004. He was also provided an opportunity to produce

evidence regarding his status as juvenile.

The Petitioner claimed his date of birth as 15th November, 1987. In support of his plea, he examined himself as AW. 1 and stated his date of

birth as 15th November, 1987 on the basis of two school leaving certificates of Class 5th and 8th, Ex.A1 and Ex.A2. The 5th Class certificate was

issued by the Education Department under the signatures of District Education Officer (Primary) Mansa, wherein his name and father''s name and

residence has been given to be the same and the date of birth has been certified to be 15th November, 1987. The second certificate of Class 8th

was issued by Punjab School Education Board, wherein his date of birth has been recorded as 15th November, 1987. The Petitioner also

examined Gurdev Singh, S.S. Teacher of Government Senior Secondary School, Jhunir, as AW.2, who stated that the Petitioner is a student in the

above said school in Class 10. He further stated that the Petitioner was got admitted by his mother,--vide admission form, copy of which is Ex.A3.

He also produced copy of certificate for passing 5th class as Ex.A4. He further stated that as per the admission and discharge register, which is

maintained by the Principal of the School, copy of which was proved as Ex.A5, date of birth of the Petitioner is 15th November, 1987. (7)

Contrary to this, the prosecution neither led any evidence whatsoever nor any attempt was made by it to conduct ossification test of the Petitioner.

On the basis of the aforesaid evidence, the Petitioner claimed himself to be a juvenile u/s 2 (k) of the Juvenile Justice Act, being a person who

has not completed 18 years of age as per the two school leaving certificates. In view of the above date of birth, age of the Petitioner, at the time of

the alleged occurrence, comes to 15 years one month. But his claim was rejected by the Court of Additional Sessions Judge on the ground that the

date of birth given at the time of admission in school is seldom correct and does not depict the actual age of the child as an attempt is made by the

parents to under state the age of their child, therefore, no definite conclusion can be drawn from an entry made in the school admission register. In

this regard, the following observations were made:

It is a matter of common knowledge that the date of birth given at the time of admission of a boy or a girl in school is seldom correct and more

often that not the age given is less that the actual date of the child joining a school. An attempt is made by the parents of the children to under-state

their ages and to give a later date of birth than the real one. Therefore the Court cannot ignore this fact while assessing the value of an entry of date

of birth in school admission register and it would be improper for the court to base any conclusion on the basis of that entry. The age given in an

admission form is by no means a conclusive age given in an admission form is by no means a conclusive test. Entries in school registers are of little

value as evidence of age, as was observed in case Jai Narain v. The State of Haryana, 1974, C.L.R. 105. Similarly, our own Hon''ble High Court

recently in case Harpal v. State of Haryana, 2004 (1) RCR (Crl) 480 observed that school leaving certificate cannot be believed in absence of any

other evidence such as Register of village Chowkidar.

Feeling aggrieved against the aforesaid order, the Petitioner has filed the instant revision petition.

Learned Counsel for the Petitioner, while relying upon judgment of the Hon''ble Supreme Court in Bhoop Ram v. State of U.P. 1989 S.C.C.

(Crl.) 486, submitted that the impugned order passed by the trial court is liable to be set aside as it runs contrary to the observations made by the

Hon''ble Apex Court. While dealing with the case of juvenile based on the school certificate, Hon''ble Apex Court held that in absence of anything

showing that the entires in the school leaving certificate did not relate to the accused or were incorrect, the same cannot be rejected on the basis of

surmise that generally parents understate the age of their children at the time of admission to school. In the absence of any independent material,

nothing should prevail over the entries in school certificate. Learned Counsel for the Petitioner contended that in this case, the Petitioner has not

only placed on record the documentary evidence in the shape of school leaving certificate, but he has also led the oral evidence, which clearly

establish that on the date of alleged occurrence and on the date, when the Petitioner was summoned to face trial, he was a juvenile. He further

contended that all this evidence was not controverted by the prosecution nor any contrary evidence has been led and the learned trial court

rejected the claim of the Petitioner merely on the basis of conjectures and surmises. Learned Counsel, while referring to another decision of the

Hon''ble Supreme Court in Rajinder Chandra v. State of Chhattisgarh, 2002 (1) R.C.R. 586, has submitted that the Court dealing with the

question of determining the age of the accused for the purpose Of finding out whether he is a juvenile or not, a hyper--technical approach should

not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile, and if two views

may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile. In view of these submissions, learned

Counsel for the Petitioner submitted that the view taken by the learned trial court is totally contrary to the aforesaid principle of law and the

impugned order is liable to be set aside.

On the other hand, learned Counsel for the Respondent--State submitted that the trial court has recorded a finding after appreciation of the

evidence, which is not to be interfered in the revisional jurisdiction. He submitted that the evidence produced by the Petitioner before the trial court

is not reliable and on the basis of such evidence and in absence of a certificate from the Registrar, Births and Deaths, correct age of the Petitioner

cannot be ascertained and he should not be held to be a juvenile. In support of his contention, counsel for the Respondent relied upon Jaipal Singh

v. State of Haryana 2003 R.C.R. (Criminal) 311, and Harpal v. State of Haryana 2004 R.C.R. (Criminal) 481, wherein it was held that the school

certificates cannot be taken as the proof of the age of the presecutrix.

In compliance with direction of the Hon''ble Supreme Court in Sheela Barse (II) and Others Vs. Union of India (UOI) and Others, , the

Juvenile Justice Act, 1986 was enacted which has now been repealed by the Juvenile Justice Act, 2000, which has come into force with effect

from 1st April, 2001. The Juvenile Justice Act, as its Preamble speaks, aims at achieving the object to lay down legal framework for juvenile

justice in the country so as to ensure that no child under any circumstance is lodged in jail or police lock up. This is being ensured by establishing

Juvenile Justice Welfare Board and juvenile courts.

The Juvenile Justice Act provides for justice after the onset of delinquency. Once a boy or a girl has assumed delinquency, his or her treatment

and trial at the hands of the justice delivery system is taken care of by the provisions of the Juvenile Justice Act. The Act aims at laying down a

uniform juvenile justice system in the country avoiding lodging in jail or police lock-up of the child; and providing for prevention and treatment of

juvenile delinquency, for care, protection etc. post-juvenility. In short the field sought to be covered by the Act is not the one which had led to

juvenile delinquency but the field when a juvenile having committed a delinquency is placed for being taken care of post-delinquency. Thus the

legislative aims and objectives go to show that this legilsation has been made for taking care of and custody of a juvenile during investigation,

inquiry and trial, i.e. from the point of time when the juvenile is available to the law administration and justice delivery system.

In Gopinath Ghosh v. State of West Bengal 1984 S.C.C. (Crl.) 478, Bhola Bhagat Vs. State of Bihar, and Santenu Mitra Vs. State of W.B., ,

which have been reiterated in Arnit Das Vs. State of Bihar, the Hon''ble Apex Court laid down following propositions:

(i) the technicality of the accused having not claimed the benefit of the provisions of the Juvenile Justice Act at the earliest opportunity or before any

of the courts below should not, keeping in view the intendment of the legislation, come in the way of the benefit being extended to the accused-

Appellant even if the plea was raised for the first time before the Supreme Court;

(ii) a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that

he was a juvenile and it two views may be possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in

borderline eases; and

(iii) the provisions of the Act are mandatory and while implementing the provisions of the Act, those charged with responsibilities of implementation

should show sensitivity and concern for a juvenile.

Applying the aforesaid propositions of law to the facts of the present case, the views taken by the trial court is not sustainable as the same is

based on surmises and conjectures. The Petitioner placed on record school certificates of 5th and 8th class, Ex.A1 and Ex.A2, which were

prepared and issued even prior to the date of alleged occurrence and according to the date of birth given therein, the Petitioner was a juvenile on

the day of alleged occurrence. It is not the case of the prosecution that these certificates are not genuine or are forged one. No contrary evidence

regarding age of the Petitioner has been led by the prosecution. Even no attempt was made by it to conduct the ossification test of the Petitioner.

The aforesaid certificates are the next best evidence in absence of any entry in the office of Register, Births and Deaths. Melo Kaur, mother of the

Petitioner, while appearing as AW.3, has stated that the Petitioner was born at village Dhanpur, the house of her parents, and she belongs to Majbi

Sikh caste. Thus, no entry was made with the Registrar, Births and Deaths. Therefore, no birth certificate could be available. The Petitioner has

also examined a school teacher, who has categorically stated that the Petitioner is a student of 10th class. He also proved his date of birth, as per

the school record. All this evidence cannot be ignored in absence of any contrary evidence. The trial court has ignored these evidence merely on

the basis of conjectures while observing that the date of birth given at the time of admission in school is seldom correct and does not depict the

actual age of the child, as an attempt is made by the parents to under state the age of their child. In support of this conclusion, the learned trial court

has relied upon judgment of this Court in Harpal v. State of Haryana (supra), while is not at all applicable to the facts of the present case, as it

pertains to the case where age of the prosecutrix in a rape case was in question. The ratio of that judgment cannot be made applicable to the

present case, which is for determining the age of an accused under the Juvenile Justice Act, in which a hyper-technical approach should not be

adopted while appreciating the evidence produced on behalf of the accused. The Hon''ble Supreme Court in Rajinder Chandra''s case (supra) has

clearly laid down that where two views are possible on evidence regarding age of the accused to find out as to whether he is a juvenile or not, the

court should lean in favour of holding the accused to be a juv�nile. While determing the factum of age and appreciating the evidence led in this

regard, the court should keep in mind the aim and object for which the Juvenile Justice Act has been enacted. In this case, the learned trial court

did nto appreciate the evidence led by the prosecution in its right perspective and has come to a perverse conclusion. In my opinion, the evidence

led by the Petitioner, as discussed above, clearly establish that the date of birth of the Petitioner is 15th November, 1987 and at the time of the

alleged occurrence as well as on the date when he was ordered to be summoned to face trial u/s 319 Cr. P.C. he was juvenile. Thus, the finding

recorded by the trial court that the Petitioner was not a juvenile is set aside.

In view of the aforesaid finding, the trial of a juvenile cannot be proceeded with the other accused, as provided u/s 18 of the Juvenile Justice

Act, which reads as under:

No joint proceeding of juvenile and person not a juvenile: (1) Notwithstanding anything contained in Section 223 of the Code of Criminal

Procedure, 1973 (2 of 1974) or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence togetherwith

a person who is not a juvenile.

(2) If a juvenile is accused of an offence for which u/s 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time

being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in Sub-section (1), have been charged

and tried together, the Board taking cognizance of that offence shall direct separate trials of the juvenile and the other person.

In view of the aforesaid provision, the tiral court shall take necessary steps for separating trial of the Petitioner and then proceed with the case.

Now, the question arises whether the Petitioner is entitled to be released on bail. In this regard, Section 12 of the Juvenile Justice Act reads as

under:

Bail of juvenile: (1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or

appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)

or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appear reasonable

grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or

psychological danger or that his release would defeat the ends of justice.

(2) When such person having been arrested is not released on bail under Sub-section (1) by the officer incharge of the police station, such officer

shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.

(3) When such person is not released on bail under Sub-section (1) by the Board it shall, instead of comitting him to prison, make an order sending

him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order.

In view of the aforesaid, grant of bail to a juvenile is mandatory. Bail to him can only be declined if there are reasonable grounds for believing

that his release is likely to bring him in association with any known criminal or expose him to moral, physical or psychological danger or that his

release would defeat the ends of justice. In the present case, in my opinion, case of the Petitioner does not fall in any of the aforesaid three

exceptional grounds. As per allegations in the FIR, the Petitioner and his two brothers are alleged to have caused injuries to the deceased on

account of the motive that they were suspecting that he was having illicit relations with their Bhabi. Admittedly, the Petitioner is a first offender and

is not involved in any other criminal case. Before his arrest, he was living with his family. His co-accused have already been released on bail.

During investigation, he was found innocent and was kept in column No. 2. However, subsequently, on an application u/s 319 Code of Criminal

Procedure, moved by the prosecution, he was summoned by the trial court. After dismissal of his application, he is confined in Central Jail,

Bathinda alongwith hardened criminals. The Petitioner is an ordinary student of a village and his release will not bring him in bad company or

expose him to moral, physical or phychological danger. Thus, in my opinion, keeping the Petitioner in jail during the pendency of trial will defeat the

very purpose and object of the Juvenile Justice Act. Thus, he is entitled to be released on bail.

In view of the aforesaid discussion, this revision petition is allowed; the impugned order dated 24th August, 2004, passed by Additional

Sessions Judge, Mansa, is set aside; the trial court is directed to take necessary steps for separating trial of the Petitioner and to release the

Petitioner on bail subject to his furnishing bail bonds to its satisfaction.