Sharda Soni Alias Sonu Soni vs State Of Madhya Pradesh

This revision has been filed under Section 397 and 401 of Cr.P.C against the order dated 28.04.2018 passed by Special Judge / Sessions Judge Singrauli, Headquarter Waidhan (M.P.) in Special S.T. No.20/2018. By the impugned order learned lower Court dismissed the application of the applicant filed for bail under Section 9 of Juvenile Justice (Care and Protection of Children) Act, 2015 (in short "Act 2015" hereinafter).

The facts of the case are that the accused/applicant was produced before the CJM, Singrauli on 09.02.2018 after his arrest in Crime No.81/2018, registered at Police Station Waidhan under Sections 363, 366-A, 376(2) of IPC, Section 3(1)(w)(ii), 3(2)(v-a) SC/ST Act and Section 4/6 of POCSO Act. CJM remanded the applicant into judicial custody and remand paper transmitted to the Sessions Court. On 23.02.2018 the accused was produced before the Sessions Judge / Special Judge, Singrauli. On 26.02.2018, an application under Section 9 of the Act, 2015 was filed on behalf of the applicant and in that application it was stated that the applicant has not completed the age of 18 years. The mark-sheet of class-Ist, issued by the Indian Children Academy School, Ganiyari Road, Waidhan, was also filed alongwith aforesaid application.

The prosecution opposed the application by filing the written reply on 05.03.2018. Thereafter, Rama Soni [father of the applicant] was examined on 08.03.2018 and Principal of aforesaid school was examined on 14.03.2018. On 26.03.2018, the challan was filed and Special Case No.20/2018 was registered. On 03.04.2010 the prosecution also examined witness Manish Tripathi. After hearing the arguments on 04.04.2018 the Court passed an order on 12.04.2018 for calling the witness Rama Soni for further examination and the evidence was recorded on 23.04.2018. On 28.04.2018, the order impugned has been passed. It is also appears from the case that the charges have been framed on 03.07.2018 under Sections 363, 366-A, 376(2)(i), 376(2)(II) of IPC, Section 5(tha)/6 POCSO Act and Section 3(1)(w)(ii), Section 3(2)(v) of SC/ST Act.

By the impugned order the learned lower Court took a note of Section 94(2) of the Act, 2015 and did not accept the plea of the applicant that his date of birth is 05.09.2001 and on the date of incident i.e. 03.02.2018 he was below the age of 18 year. The Court mentioned that except mark sheet of class-I, any other mark-sheet of any higher class has not been filed. The father unable to explain the basis, upon which he intimate the date of birth in the School at the time of admission of the applicant. The Court also mentioned that the applicant is said to be educated upto Class-Vth, but mark-sheet of Class-Vth has not been produced.

It appears from para-7 of the impugned order that the lower Court inquired the matter in exercising the powers given under Section 9(2) of the Act. In para-8, the Section 94(2) of the Act is also quoted. It is also appeared from the para-3 of the impugned order that the prosecution argued before the Lower Court that the marriage agreement has been executed before the Notary on 06.02.2018, in which the age of the applicant is mentioned as 20 years and the date of birth 15.08.1999 is also mentioned in Aadhar Card of the applicant. The trial Court did not discuss the aforesaid two documents. The trial Court comes to the conclusion that upon the basis of evidence the applicant is unable to prove that his date of birth is 15.08.1999, which is mentioned in the School record and held that the applicant is a boy of above 18 years.

"Juvenile Justice(Care and Protection of Children) Act 2015" came into force with effect from on 15.01.2016. The rules also made under the aforesaid Act named "The Juvenile Justice(Care and Protection of Children) Model Rules, 2016" and these rules came into force with effect from 21.09.2016. Section 94 of the new Act 2015 provide the procedure for determination of the age. Sub-rule-2 of Section 94 of New Act says :-

"(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.

Provided such age determination test conducted on the order of the Committee of the Board shall be completed within fifteen days from the date of such order. "

Before the aforesaid Rules, the Section 12 of the Juvenile Justice (Care and Protection of Children) Act 2007 was applicable. That rules was considered in Ashwani Kumar Saxena Vs. State of M.P. (2012) AIR SCW 5377. Interpretation of the previous rule 12 will be applicable to the present Section. In the aforesaid case the Hon'ble Supreme Court has held in para No.32 and 33, which reads as under:-

"32. "Age determination inquiry" contemplated under Section 7A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.

Once the court, following the above mentioned procedures, passes an order, that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in sub-rule (5) of Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the Rule 12. Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination."

In the case of Jodhbir Singh Vs. State of Punjab AIR 2013 SC 1, the Hon'ble Supreme Court considered Ashwani Kumar's case and held in para 13 as under:-

"13. We are of the view that in a case where genuineness of the school leaving certificate has not been questioned, the Session Court and the High Court were not justified in placing reliance on certain statements made by Parkash Kaur, mother of the accused in the cross-examination. The Sessions Court also committed an error in placing reliance on the certificate issued by the village Chowkidar who was examined as RW-2. When the law gives prime importance to the date of birth certificate issued by the school first attended, the genuineness of which is not disputed, there is no question of placing reliance on the certificate issued by the village Chowkidar".

Therefore, it appears that, if the genuineness of school certificate is not questioned, then the law gives prima importance to the date of birth certificate issued by the School. If the evidence stated in Section 94(2) is available then the Court could not place reliance upon any other documents. But it is primarily requirement of the law that the documents stated in the rule should be genuine. If we see the documents, then it appears that the mark-sheet of class-I has been issued by the school, which is duly proved by witness who is Principal of the aforesaid school. Copy of the scholar register (Ex.P/2) also shows the date of birth as 05.09.2001. In the admission form (Ex.P/3) the same date of birth has been mentioned with the photographs of the student. Ex.P/4 is a written application given by the father of the applicant on 01.07.2006 in which he mentioned that the date of birth of his son is 05.09.2001. If the mark-sheet of class-I was produced and other relevant documents were also produced, then there was no requirement of submission of mark-sheet of class-Vth. But, it is proper to mention here, that before this Court, the applicant has also filed mark-sheet of class-Vth, in which same date of birth i.e. 05.09.2001 has been mentioned. Father of the applicant also stated in his statement that his son was admitted in that school and got the education till class-Vth. Therefore, genuineness of the documents is not under questioned. Because the documents maintained by school in due course of business, then presumptive value is also attach with the aforesaid documents.

If the trial Court was not satisfied with the documents filed by the applicant comes under category Ist, then it was the duty of the Court to call the evidence stated in the sub clause-II or III. In this case, the evidence of sub clause II was not available. Therefore, trial Court was competent to call the evidence stated in the category No.3, means the trial Court was competent to call the ossification test report. But the trial Court only rejected the request of the applicant and relied on the age mentioned in the arrest memo, while no supporting evidence was available.

Therefore, it appears from the entire record that document P/1 is a genuine document, which is the part of the record maintained by school in due course of business. It is not found that the record is forged or created after registration of crime. The law casted the presumptive value of the school record and no further evidence is required to prove the basis of the entry. If the date of birth is mentioned in the school record, the Court may presume that the correct date has been mentioned. Affidavit (Ex.D/2) has been executed after the crime committed. That document has been executed for the purpose of marriage. Therefore, it can be said that the intentionally higher age has been mentioned otherwise the applicant could not succeed to execute the aforesaid affidavit regarding his marriage with the prosecutrix. The Aadhar card cannot be used as a proof of date of birth. This document is only for the purpose of identification of particular person.

Therefore, it appears that the applicant was a boy below the age of 18 years at the time of commission of the offence. Therefore, the order passed by the lower Court dated 28.04.2018 is hereby set-aside. The lower Court is directed to transmit the record to the concerned Juvenile Justice Board.

Accordingly, revision is allowed and disposed of.