K.A. Vargese @ Babu vs The State

N. Ananda, J.—Heard the learned counsel for appellant and learned HCGP for State. In this appeal against judgment of conviction, appellant-accused (hereinafter referred to as ''accused'') convicted for an offence punishable u/s 304 II IPC has raised a plea that he was a juvenile as on the date of offence viz 26.01.2004. The accused has produced a photostat copy of School Admission Register Extract issued by the Head Master, Government Higher Primary School at Gubbige Sutta Post Narasimharajapura Taluk, Chikmagalur District to contend that he was born on 25.04.1987 and as on the date of alleged offence viz 26.01.2004, accused was less than 18 years of age.

On 13.12.2012, this court directed the Principal District & Sessions Judge at Chikmagalur to secure the presence of accused to hold an inquiry by adopting procedure laid down in Rule 12 and submit a report.

The learned Principal District & Sessions Judge at Chikmagalur has submitted a reported dated 12.03.2013 after recording a finding that on the date of offence viz 26.01.2004, accused was aged about 17 years and 5 months.

It is noticed from report that learned Principal District & Sessions Judge at Chikmagalur has not held an inquiry in terms of section 7A of the Act and also by adopting the procedure in terms of Rule 12. The Photostat copy of school admission register extract relied upon by Principal District & Sessions Judge at Chikmagalur discloses date of birth of accused as 25.04.1987. The Birth Certificate issued by the Chief Registrar of Births and Deaths shows that accused was born on 15.03.1987.

The learned Principal District & Sessions Judge at Chikmagalur has accepted these documents as per se evidence, without the same being proved by accused. The date of birth mentioned in school admission register extract and birth certificate are not one and the same. There is no evidence on record to prove that accused has born within the limits of Bhadravathi Town Municipality. Therefore, report of the Principal District & Sessions Judge at Chikmagalur cannot be accepted.

In a decision reported in Subodh Nath and Another Vs. State of Tripura, , the Supreme Court has held:-

Sections 7A and 20 of the 2000 Act, which are relevant for deciding these questions are quoted hereinbelow:

7-A. Procedure to be followed when claim of juvenility is raised before any court. (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.

Special provision in respect of pending cases.- Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence:

Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.

Explanation.- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.

Section 7A and the proviso and the Explanation in the aforesaid Section 20 quoted above were inserted by the Amendment Act of 2006, w.e.f. 22.08.2006 and before the insertion of the Section 7A and proviso and the Explanation in Section 20, this Court delivered the judgment in Pratap Singh v. State of Jharkhand on 02.02.2005 cited by Mr. Biswas. The judgment of this Court in Pratap Singh v. State of Jharkhand therefore is of no assistance to decide this matter.

After the insertion of Section 7A and the proviso and explanation in Section 20 in the 2000 Act, this Court delivered the judgment in Hari Ram v. State of Rajasthan. The facts of this case were that the accused committed the offences punishable under Sections 148, 302, 149, 325/149 and 323/149 of the IPC on 30.11.1998. The date of birth of the accused was 17.10.1982. The medical examination of the accused conducted by the Medical Board indicated his age to be between 16-17 years when he committed the offence on 30.11.1998. The High Court held that on the date of the incident the accused was about 16 years of age and was not a juvenile under the 2000 Act and the provisions of 2000 Act were, therefore, not applicable to him. This Court set aside the order of the High Court and held that the accused had not attained the age of 18 years on the date of the commission of the offence and was entitled to the benefit of the 2000 Act, as if the provisions of Section 2(k) thereof had always been in existence even during the operation of the 1986 Act by virtue of Section 20 of the 2000 Act as amended by the Amendment Act of 2006 and accordingly remitted the case of the accused to the Juvenile Justice Board, Ajmer, for disposal accordance with law.

Therefore, learned Principal District & Sessions Judge at Chikmagalur was required to hold an inquiry in terms of section 7A of the Act and Rule 12 of the Rules.

The accused had not raised this contention before court below. The finding on the age of accused as on the date of offence is a question of fact, which has to be determined by holding an inquiry in terms of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short, ''the Rules'').

In terms of section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, ''the Act''), whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be.

Rule 12 provides for procedure to be followed by Court or Board for determination of age. Therefore, without going into merits of the case, I pass the following:-

ORDER

The appeal is accepted. The matter is remanded to the trial court to hold an inquiry in terms of this judgment and in accordance with law. If the trial court finds that accused was a juvenile as on the date of offence, trial court shall proceed in accordance with the provisions of the Act. If the trial court finds that accused was not a juvenile as on the date of offence, the provisions of the Act are not applicable to him and trial court shall confirm the judgment of conviction, reserving liberty to accused to challenge the same in accordance with law. Similarly, if trial court holds that accused was a juvenile, State is at liberty to challenge the same in the manner known to law. Office is directed to send back records along with a copy of this judgment to trial court.