Murtaza Tariq vs State Of J&K

Sanjeev Kumar, J

1) The petitioner, who is facing trial in FIR No.44/2018 registered in Police Station, Kreeri for offences under Section 376 RPC and Section 4 of

Protection of Child from Sexual Offences Act, 2012, claims juvenility and feels aggrieved of the orders dated 07.12.2018 and 02.02.2019, both passed

by the Court of learned Sessions Judge, Baramulla (“the trial Courtâ€) and seeks a direction to the trial Court to refer the trial to Juvenile Justice

Board.

2) In terms of order dated 07.12.2018, the trial Court with a view to ascertain his age and dispose his claim of juvenility referred the petitioner to a

medical board for determination of his age. In terms of order dated 02.02.2019 passed in the same proceedings, the trial Court, upon receipt of the

report/medical opinion from the board of doctors, has rejected the petitioner’s plea of juvenility and has held him major at the time of commission

of offence. Pertinent to note that the order impugned dated 07.12.2018 was initially accepted by the petitioner and no proceedings against it were

taken. It was only when adverse opinion by the Medical Board was received by the Court and pursuant thereto, the petitioner’s plea of juvenility

was rejected by the trial Court vide order dated 02.02.2019, the petitioner thought of challenging the basic order.

3) The impugned orders have been assailed by the petitioner on various grounds but before appreciating the same, a brief reference to the factual

antecedents would be worthwhile. Police Station, Kreeri registered FIR No.44/2018 against the petitioner on the allegation of commission of offences

under Section 376 RPC and Section 4 POCSO and set the investigation in motion. During investigation, offences under Section 376 RPC and Section

4 of POCSO were established and a final report in this regard was submitted before the trial Court. The petitioner moved an application before the

trial Court for seeking his trial under the Juvenile Justice (Care and Protection of Children) Act, 2013 on the ground that he was juvenile on the date of

commission of offence as substantiated by the date of birth/school leaving certificate issued by the Headmaster, Govt. Middle School, Hail, Zone

Bagoora. The petitioner also moved another application claiming that his name was wrongly reflected in the challan as Nazir Court, after finding

variations in various documents pertaining to the age of the petitioner and also taking note of the admission by the petitioner while recording his

statement under Section 242 Cr.P.C. that he was 21 years old, thought it appropriate to get the petitioner medically examined by a Medical Board for

determination of his age. The trial Court vide order dated 07.12.2018 directed the Chief Medical Officer, Baramulla to constitute a Medical Board to

determine the age of the petitioner and submit his report within two days.

In compliance, the Medical Board was constituted, which, after examination of the petitioner, opined that the petitioner appears to be more than 18

years and less than 25 years of age. The trial court placing reliance on the opinion of the Medical Board and after affording opportunity of being heard

to the petitioner, declined to accept the plea of juvenility raised by the petitioner and, accordingly, dismissed his application.

4) It may be noted that alongside the application moved by the petitioner for declaring him juvenile, the prosecution too had filed an application for

getting the age of the petitioner determined through Medical Board. Both these applications were disposed of in terms of the impugned order dated

07.12.20218 thereby issuing direction for constitution of Medical Board for determination of the age of the petitioner.

5) Be that as it is, the petitioner is now aggrieved of both the orders and seeks to challenge the same inter alia on the following grounds:-

i) That the impugned orders are not sustainable in law for the reason that the trial Court has failed to appreciate the statements made by the witnesses

and erroneously ignored the date of birth certificate issued and proved by the school authorities of the department of education.

ii) That in the face of date of birth certificate issued by the Municipality or the school being available, it was not permissible to refer the petitioner to

the Medical Board for determination of his age.

iii) That the opinion of the Medical Board is not a valid opinion as the petitioner was never examined by a duly constituted medical board under the

provisions of the Act. The opinion was rendered by a single doctor and, therefore, ought to have been ignored by the trial Court.

6) The revision petition is contested by the State. Ms. Asifa Padroo, learned AAG appearing for the State has supported the impugned orders passed

by the trial Court and would submit that in the face of variations found in various documents pertaining to the age of the petitioner, the only option left

with the trial Court was to refer the petitioner to a duly constituted Medical Board for determination of his age. The contention of the learned counsel

for the petitioner that the opinion with respect to the age of the petitioner was rendered by a single doctor and not by a duly constituted Board is also

vehemently refuted. Attention of this Court is invited to the trial Court record, a response to the direction of the trial Court, had constituted a Board of

following doctors:-

Dr. Farooq Ahmad Wani, Consultant Radiology

Dr. Gurmeet Singh, Consultant Physician

Dr. Babar Ali Shah, MDS.

All the three doctors have opined that radiological age of the petitioner was more than eighteen years and less than twenty five years. The opinion of

the Medical Board is in the following words:-

“The radiological age of the person namely Nazir Ahmad Parray R/o Hail Jagir is more than eighteen years and less than twenty five years. The

physician specialist and senior dental surgeon standing at Sr. No.2 and 3 are also of same opinion.â€​

7) Having heard learned counsel for the parties and perused record, the only question that begs determination in this revision petition is, “whether

the trial Court was justified in referring the petitioner to the Medical Board for determination of his age, when primary evidence in the shape of school

leaving certificate indicatin the date of birth of the petitioner was made available to it. If answer to this question is in the affirmative, whether the

opinion rendered by the Medical Board constituted by the Chief Medical Officer concerned is as per the provisions of the Act.?

8) Indisputably, on the date of occurrence i.e. 17.06.2018, the VINOD KUMAR Jammu and Kashmir Juvenile Justice (Care and Protection of

Children) Act, 2013 (“the Actâ€) was in operation and regulated the care, treatment and protection to the juveniles in conflict with law and children

in need of care and protection. Section 2(m) of the Act defines “juvenile†or “child†whereas Section 2(n) defines “juvenile in conflict with

lawâ€​. For facility of reference Section 2(m) and 2(n) are reproduced hereunder:-

“2(m) “juvenileâ€​ or “childâ€​ means a person who has not completed eighteen years of age;

(n) “juvenile in conflict with law†means a juvenile who is alleged to have committed an offence and has not completed eighteen year of

age as on the date of commission of such offence;â€​

9) In view of the aforesaid definition of “juvenile†given under the Act, the trial Court in the instant case was called upon to determine the age of

the petitioner on the date of commission of alleged offence. Section 8 of the Act lays down procedure to be followed when claim of juvenility is raised

before any Court. Proper appreciation of the provisions of Section 8 is pivotal to the determination of the issue on hand and, therefore, Section 8 is also

set out hereunder:-

“8. 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 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 the Act and the rules made

thereunder, even if the juvenile has ceased to be so on or before the date of commencement of the 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 order and the sentence. if any, passed by a court shall be deemed to have no effect.â€​

10) From a reading of Section 8 of the Act, it is clear that whenever a claim of juvenility is raised before any Court or the Court is of the opinion that

the accused person was juvenile on the date of commission of offence, the Court shall make an enquiry, take such evidence as may be necessary and

record a finding whether the person is a juvenile or not stating his age as nearly as may be. The Section further provides that the claim of juvenility

raised before any Court at any stage shall be determined as per the provisions of the Act and the Rules framed thereunder. What is enjoined by

Section 8 of the Act is an enquiry where the Court may also take such evidence as may be necessary so as to determine the age of such person. 11)

Rule 74 of The Jammu & Kashmir Juvenile Justice (Care and Protection of Children) Rules, 2014 (hereinafter “the Rulesâ€) provides that

whenever an alleged offender, who appears to be below the age of 21 years is produced before a Court, the Court on the very first date of production

shall question the alleged offender about his age and satisfy itself that he is not a juvenile. He will make a note of his findings and order immediate

transfer of the matter to the Juvenile Justice Board constituted under the Act. So far as Board or Welfare Committee constituted under the Act are

concerned, it will decide the issue of juvenility on the basis of physical appearance or documents available, if any. The Rules further provide that

where an enquiry is instituted by the Board or Committee for determination of the age, such enquiry shall take into consideration the following

evidence:-

i) the birth certificate issued by a Corporation or a Municipal Committee or any other notified authority; or

ii) the matriculation or equivalent certificate; or

iv) In absence of the certificates mentioned in sub-clauses (i) and (ii) or in case of any contradiction arising therefrom, the authority deciding the age

issue may refer the matter to a duly constituted Medical Board, which shall record its findings and submit to the Juvenile Justice Board.

Rest of the Rule deals with constitution of the Medical Board and lays down qualification of the experts, who can be on such Board.

12) Rule 75 deals with declaration of age by the Court or Board or the Committee. A conjoint reading of Section 8 with Rules 74 and 75 makes it

abundantly clear that so far as Court before whom claim of

13) Suffice it to say that in view of the contradictions emerging in the evidence, the trial Court was left with no option but to refer the petitioner to the

Medical Board for determination of his age. The duly constituted Board, which consisted of a radiologist, a juvenility is raised is concerned, it is best

left to the Court to determine the age of such person after making an enquiry and taking such evidence as may be necessary. In the instant case, the

trial Court did take evidence in the matter and found serious variations in the version emerging from the oral testimony and the documentary evidence

on record. The petitioner himself while recording his statement under Section 242 Cr.P.C. indicated his age as 21 years but as per the school leaving

certificate, which of course was not a matriculation certificate, the petitioner was minor at the time of alleged commission of offence. The voter list

was, however, showing the petitioner major, in that, nobody will have a right to vote unless he has attained the age of majority. The trial Court also

found a major discrepancy in the name of the petitioner as mentioned in the challan and the name as was indicated in the school leaving certificate. As

per the police challan, the name of the accused is Nazir Ahmed Parray, whereas the date of birth certificate issued by the school authorities pertains

to one Murtaza Tariq. The petitioner claims that Nazir Ahmed Parray and Murtaza Tariq are the names of the same person. He has also moved an

application for seeking amendment to the name as indicated in the challan, which matter is yet to be considered and determined by the trial Court.

physician and a dentist examined the petitioner and found his age between 18 years and 25 years. It is true that the Board has not been able to give

any definite opinion on the age within a margin of one year. It is also true that all the three members have not given their separate opinion with regard

to the age. However, from a perusal of the medical opinion on record, it clearly transpires that the primary opinion was written by the radiologist and

the two other members of the Board concurred with him.

14) Although, as per Section 8 of the Act and the Rules framed thereunder, the Court is not bound to refer the petitioner to the Medical Board and

could have determined the age on the basis of enquiry conducted by him but once the trial Court referred the petitioner to the Medical Board for its

opinion with regard to the age of the petitioner, it was incumbent upon the Medical Board to follow the procedure, as laid down in Rule 74 of the

Rules. As is seen, in the instant case all the members of the Medical Board did not render their individual findings on age nor on the basis of such

individual findings Chairperson of the Board gave any final opinion on the age within a margin of one year. The opinion by the Medical Board that the

age of the petitioner could be more than eighteen years and less than twenty five years is too vague to be relied upon. As a matter of fact, the Medical

Board has not followed the procedure laid down in Rule 74 of the Rules.

15) For the foregoing reasons, I find merit in the submission of learned counsel for the petitioner that the opinion of the Medical Board was neither

definite nor reliable and, therefore, it was not proper for the trial Court to accept the same and declare the petitioner not a juvenile under the Act.

16) This petition is, therefore, partly allowed. The order impugned dated 07.02.2019 is upheld. However, the order impugned dated 02.02.2019 is set

aside. Let the Chief Medical Officer, Baramulla constitute a fresh Board of Doctors consisting of a Physiologist, a Dental Examiner and a Radiologist

or Forensic Expert of whom one shall be notified as Chairperson. All the members of the Medical board shall examine the petitioner and give their

individual findings on age, which shall then be forwarded to the Chairperson of the Board to give his final opinion on the age within a margin of one

year. The Board shall be constituted by the Chief Medical Officer, Baramulla within two days from the date it receives the copy of this order and the

Medical board so constituted shall render its opinion with regard to the age of the petitioner within 15 days.

17) The trial Court shall proceed further in the matter on the basis of opinion so rendered by the Medical Board.

18) Since matter with regard to the determination of age of the petitioner and his claim of juvenility is remanded back to the trial 2021.07.13 11:52

Court, therefore, it would not be proper to consider the bail plea of the petition unless his plea of juvenility is determined afresh by the trial Court.

19) This bail application is, therefore, dismissed leaving it open to the petitioner to move a fresh application for bail once his plea of juvenility is

determined afresh by the trial Court as per the observations made herein above while disposing of the criminal revision.