Govind Saini vs State of M.P.

D.K. Paliwal, J.—With the consent of learned counsel for the parties, matter is heard finally.

It is submitted by the learned counsel for the petitioner that on 22.4.14 the victim had gone to vegetable market. When she did not return, her father lodged a missing report. She was recovered on 24.4.14. Her statement was recorded wherein she has stated that Govind took away her and committed rape on her. On the basis of the aforesaid, crime has been registered against the petitioner and the petitioner was arrested. The petitioner submitted an application u/s 12 of the Juvenile Justice (Care and Protection) Act, 2000 (hereinafter referred to as ''the Act'') which was opposed by the prosecution. The learned Court below has not made any enquiry regarding the juvenility of the petitioner. Only on the basis of certificate of admission, the petitioner has been held to be major. The learned trial Court has not followed the procedure laid down u/s 14 of the Act. Hence, the learned Court blow has committed an illegality. It is prayed that impugned order be set aside.

Learned Panel Lawyer for the respondent/State supported the impugned judgment.

I have perused the record.

It appears that petitioner has submitted an application stating that his age has been wrongly mentioned as 18 years in the arrest memo. A false certificate has been filed. In fact, the petitioner was not born on 12.6.95 and below 18 years of age on the date of incident. Hence, prayed for enquiry by the Medical Board.

The procedure to be followed for determining the age has been provided under Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules 2007 which provides as under:-

"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) and (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.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

Plain reading of the aforesaid provision, makes it crystal clear that enquiry shall be conducted by the Court or the Board regarding juvenility of the accused. From the perusal of the impugned order, it appears that learned trial Court has not conducted any enquiry and on the basis of the date of birth mentioned in the admission register has held that prima facie petitioner is major and there is no necessity for any enquiry. This approach appears to be illegal in view of the provisions of Rule 12(3) which mandate that enquiry shall be conducted by the Court or the Board by seeking evidence. Unless an opportunity is provided to the parties to produce evidence in support of its claim, the finding cannot be said to be legal. Once the petitioner has claimed himself to be a juvenile and is taking a stand that date of birth which has been entered in the school is not correct, then it was obligatory on the trial Court to hold an enquiry and after giving opportunity of adducing evidence and proper hearing, record a finding.

In the instant case, the learned trial Court has not conducted any enquiry, hence, committed an illegality in rejecting the prayer for conducting enquiry regarding juvenility of the petitioner. Therefore, the impugned order cannot be allowed to stand. Revision petition is allowed. The impugned order is set aside. The learned trial Court is directed to hold an enquiry for the purpose of ascertaining the age of the petitioner after providing an opportunity to both the parties to adduce their evidence and thereafter will pass order afresh. If the learned trial Court comes to the conclusion that petitioner is a juvenile in conflict with law as defined u/s 2(1) of the Act, then in that case he will take further steps in accordance with law.

With the aforesaid, this revision petition is disposed of.