Suraj @ Kishan vs State

G.S. Sistani, J.—By the present petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C., petitioner has prayed for issuance of a writ for quashing of the judgment and order on sentence dated 18.4.2009 and 22.4.2009 respectively and for release of the petitioner, as he was juvenile on the date of commission of the offence. Notice in this petition was issued. On the basis of the school leaving certificate filed by the petitioner, an enquiry was conducted and by an order dated 22.1.2013 the Superintendent Tihar Jail was directed to produce the petitioner before the Medical Superintendent, Safdarjung hospital who would constitute a Board and get the age determination test of the petitioner conducted and file a report before this court.

By an order dated 7.5.2013 this court again directed a comprehensive enquiry to be conducted. The enquiry report which was received in a sealed cover on the last date of hearing was opened in court. As per the report the certificate issued by the Head Master of the Primary School Chorma, District Sultanpur, U.P. wherein the date of birth of the petitioner is mentioned as 10.2.1986, was found to be correct.

It is no longer res integra that a plea of juvenility can be raised at any stage, even after all the remedies have been exhausted.

In a recent decision rendered by the Supreme Court of India in the case of Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, , it has been held that the claim of juvenility can be raised at any stage irrespective of the delay in raising the same. The Supreme Court has further held that this plea can be raised even in appeal if such a claim was not pressed before the trial court and in fact can be raised even after disposal of the case. Framing guidelines in the case of Abuzar Hossain (supra) it has been held that for making a claim with regard to juvenility, after conviction, the claimant must produce some material which may, prima facie, satisfy the Court that an inquiry is necessary and for which the initial burden has to be discharged by the person, who has made such a claim. While no exhaustive list can be prepared as to the nature of material, which would be sufficient to raise such a plea, but the documents, which find mention in Rules 12(3)(a)(i) to (iii), would be sufficient to call for an enquiry by the Court.

Rule 12 (3) (a) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 reads as under:

(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, as the case may be, the Committee by seeking evidence by obtaining-

(a) (i) the matriculation or equivalent certificates, if available; and in 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;

Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended upto date defines a juvenile as "juvenile or child means a person, who has not completed 18 years of age".

In the case at hand petitioner was convicted and was sentenced to undergo life imprisonment u/s 302/34 IPC. Admittedly, petitioner has already undergone more than 10 years. As per the status report, the certificate issued by the Head Master of the Primary School Chorma, District Sultanpur, U.P. wherein the date of birth of the petitioner is mentioned as 10.2.1986, is found to be correct. Any further enquiry if directed or referring the matter to the Board would be a useless formality and would only lead to miscarriage of justice and the petitioner would be deprived of the advantage of the beneficial legislation. The petitioner shall suffer further in case such an enquiry is initiated, as the petitioner has already undergone about 10 years, whereas the maximum sentence as prescribed u/s 15(1)(g) of the Juvenile Justice Act is three years, which period the petitioner has already undergone. It is made clear that at the time when date of birth was informed to the school authorities, the present proceedings had not commenced, thus it cannot be said that this document has been manufactured or created after the commission of the offence, and cannot be treated as a self-serving document.

In view of above, I am inclined to accept the school leaving certificate issued by the Head Master of Primary School Chorma, District Sultanpur, U.P. and uphold the plea of juvenility of the petitioner at this stage. The petition is allowed. The petitioner shall be released from jail forthwith, unless he is wanted in any other case. Petition stands disposed of, accordingly. Copy of this order be sent to jail superintendent forthwith.