Mahendra Singh vs State of Madhya Pradesh

C.V. Sirpurkar, J.—The matter is taken up on mention.

The matter is posted for admission and consideration of I.A. No.417/2015 under section 397(1) for grant of stay, however, the matter is heard finally by consent of both the parties.

This criminal revision is directed against the order dated 1.1.2015 passed by the Court of III Additional Sessions Judge, Shivpuri in Criminal Appeal No. 53/2010 [Mahendra Singh Vs. State of M.P. through P.S. Sirsaud], whereby the learned ASJ had dismissed the application filed on behalf of applicant Mahendra Singh dated 30.04.2010 for treating him as a juvenile in conflict with law.

The facts necessary for disposal of this criminal revision may briefly be stated thus: Applicant Mahendra Singh was convicted by the Court of Judicial Magistrate First Class Shivpuri in Criminal Case No. 1610/2006 by judgment dated 11.2.2010 for the offences punishable under sections 279, 338 and 304-A of the I.P.C. and sections 3/181 and 5/180 of the Motor Vehicles Act. He challenged his conviction before the Court of III Additional Sessions Judge, Shivpuri, in Criminal Appeal No. 53/2010. During the pendency of appeal, appellant Mahendra Singh moved an application dated 30.04.2010, wherein he submitted that on the date of the alleged offence i.e. 3.4.2005 his age was only 16 years; therefore, he ought to be treated as a juvenile in conflict with law. In support of his contention, he filed one horoscope (Ex.P/1) and a mark sheet (Ex.P/2) of Class IV for the year 1999 allegedly issued by Primary School Gyanodya Vidyapeeth, Rajaki Mudheri, Shivpuri, wherein his date of birth was recorded as 20.09.1989.

Learned ASJ conducted an inquiry under the provision of section 7-A of the Juvenile Justice [Care and Protection of Children] Act, 2000 and rule 12 of Juvenile Justice [Care and Protection of Children] Rules, 2007 and the impugned order was passed thereafter. The horoscope was held to be inadmissible and the mark sheet of the year 1999 was held to be unreliable on the ground that Principal of Gyanodya Vidyapeeth Raja ki Mudheri, district Shivpuri, had submitted a certification dated 8.9.2014 before the Court stating that aforesaid school was not in existence in the year 1999. It was established only on 20.09.2005 and was recognized by the District Education Officer Shivpuri vide his order dated 19.12.2006. As such, there was no question of applicant Mahendra Singh having studied in Class IV of the aforesaid school in the year 1999. Consequently, it was held by learned ASJ that the applicant could not be said to be a juvenile on the date of the offence.

The impugned order has been assailed on behalf of the applicant mainly on the ground that u/r. 12 (3) of the aforesaid Rules, the authenticity of the mark sheet of the school (other than a play school) first attended, could not have been challenged and it was not expected of learned ASJ to conduct a roving inquiry into the authenticity of the mark sheet. It was further submitted that the certification dated 8.9.2014 was called 4 years after filing of the application and no opportunity was granted to the petitioner to cross-examine the Principal, who had issued certification. It has also been contended that if no other reliable document as mentioned in Rule 12 (3) of the aforesaid rules was available, medical opinion from a duly constituted Medical Board ought to have been called. However, without resorting to this course, learned ASJ proceeded to dismiss the application.

Learned Public Prosecutor for the respondent/State on the other hand supported the order on the ground that the certification dated 8.9.2014 is also corroborated by the order of the District Education Officer, Shivpuri dated 19.12.2006.

In view of proviso to section 7-A of the Juvenile Justice [Care and Protection of Children] Act, 2000, a claim of juvenility may be raised before any Court and is to be recognized at any stage, even after final disposal of the case and if such a claim is raised, it has to be determined in terms of the provisions contained in this Act and Rules made thereunder. The procedure to be adopted for determining the age has been laid down in sub-rule (3) of Rule 12 of the Juvenile Justice [Care and Protection of Children] Rules, 2007 which reads as hereunder:

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)***

(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.

It is true that it has been held by the Supreme Court in the case of Akhilesh Yadav Vs. Vishwanath Chaturvedi and Others, that there may be situations where entry regarding date of birth made in the certificates may not be correct but the Court is not expected to conduct a roving inquiry and go behind those certificates to examine the correctness of those documents, kept during normal course of business. However, simultaneously it has been held that only in the cases where those documents or certificates are found to be fabricated or manipulated, the Court need to go for medical report for age determination. Further in the case of Omprakash Vs. State of Rajasthan and another, 2012 AIR SCW 2462, it has been held that in a situation where the school record itself is not free from ambiguity and does not conclusively prove minority of accused, medical opinion cannot be allowed to be overlooked and treated to be of no consequence. Likewise in the case of Birad Mal Singhvi Vs. Anand Purohit, , it has been held that where dispute regarding genuineness of a certificate has arisen, the Juvenile Justice Board may seek opinion of duly constituted Medical Board. In the case of Ashwani Kumar Saxena Vs. State of M.P., , it has been held that though a roving inquiry into correctness of certificates is not contemplated, in cases where the certificates are found to be fabricated or manipulated, the Court need to go for medical opinion for age determination.

Reverting back to the case in hand, it may be observed that the very existence of the primary school, by which the mark sheet (Ex.P/2) is alleged to have been issued, has been questioned. So far as the argument of learned counsel for the applicant that he was not granted opportunity to cross-examine the Principal, who had issued certification dated 8.9.2014 is concerned, it may be said that the inquiry contemplated under the Juvenile Justice Act is a summary inquiry, whereunder documents unsupported by oral evidence, if found to be above suspicion, may be accepted.

Thus, in the opinion of this Court, learned ASJ committed no error in refusing to rely upon the mark sheet (Ex.P/2). However, the matter should not have been allowed to rest there. It has been categorically stated in sub-rule (3) of Rule 12 that if matriculation or equivalent certificate, date of birth certificate from the school first attended or birth certificate issued by local authority are not available, medical opinion will be sought from a duly constituted medical board.

In the instant case, matriculation or equivalent certificate and date of birth certificate have not been made available to the Court. The mark sheet of the school (other than a play school) first attended, has not been found to be reliable. Thus, the only course open to the Court, was to have sought medical opinion in terms of rule 12 (3) (b) but learned ASJ failed to adopt that course.

In aforesaid view of the matter, impugned order is not sustainable in the eyes of law.

Consequently, this revision petition is allowed. The impugned order is set aside. The matter is remitted back to the learned appellate Court to follow the procedure contemplated under Rule 12 (3) (b) of the Juvenile Justice [Care and Protection of Children] Rules, 2007 and determine the age of applicant Mahendra Singh on the date of the offence and proceed accordingly.