Gyani @ Gyanendra Kumar vs State of U.P. and Another

Allah Raham, J.—Heard learned Counsel for the petitioner.

It has been submitted by the learned Counsel for the petitioner that the juvenility of the petitioner has not been determined according to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules (Rules for short) framed by the Central Government in pursuance of the provisions contained in Sub-section 1 of Section 68 of the Juvenile Justice (Care and Protection of Children) Act 2000. Rule 12 may be quoted here for convenience:

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.

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 7-A, 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 of 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.

The above provision clearly casts a duty on the competent authority to determine the juvenility of the petitioner after obtaining evidence as provided under the Rules. The first evidence is the matriculation or equivalent certificates, if available; and in the absence thereof, the date of birth certificate from the school first attended, and in the absence thereof, the birth certificate given by a corporation or a municipal authority or a panchayat. If either of these three documents are not available, then the juvenile shall be referred to a medical board. The learned trial court has simply held that by facial appearance the petitioner looks about 19-20 years'' old and the age certificate filed by the petitioner is not the high school certificate, therefore, no reliance can be placed upon the said document. This is not the correct legal position. The correct legal position is contained in the Rule quoted hereinabove.

The impugned order dated 4.6.2008 is, therefore, set aside and the case is remanded to the court below to determine the juvenility of the petitioner in terms of the stipulation made in the Rule quoted hereinabove.

The petition is disposed of accordingly.