Surendra Kushwah vs State Of Madhya Pradesh

The applicant has filed this criminal revision under Section 397/401 of the Cr.P.C and under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 being aggrieved by the order dated 17.01.2019 passed in S.T. No. 9600415/2017 by 23rd Additional Session Judge, Bhopal whereby the Additional Judge dismissed the application filed by the applicant on the ground that on the date of incident the applicant was Juvenile under the age of 18 years.

Facts giving rise to this revision, in short, are that a FIR was lodged against the applicant in Police Station Shahpura which was registered as a Crime No. 392/2015 for the offence punishable under Sections 363, 376, 376(2)(N) of the Indian Penal Code and Section 3 read with Section 5 as well as under Section 4 read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 alleging therein that the applicant has abducted the minor female child and committed rape against her. After investigation, charge-sheet has been filed and case committed to the Court of Session for trial, registered as S.T. No. 9600415/2017. During trial, the applicant, who was an accused therein filed an application under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2015 mentioning therein that the date of birth of the applicant is 07.06.1998 and date of incident is 07.12.2015. Therefore, on that date applicant was below the age of 18 years and was Juvenile.

Learned Sessions Court after conducting an enquiry and recording the statement of teacher of the school, where the applicant has studied in Class-III and Class-VIII as also the statement of her mother and father, concluded that the applicant was, on the date of incident, is more than 18 years of age and not a juvenile.

Being aggrieved by that finding, the applicant has filed this revision on the grounds that the learned Sessions Court has not got the applicant examined by the Medical Board or not sent him for ossification test for determining the age. He, therefore, prays for setting aside the order of the trial Court and hold that the applicant is under the age of 18 years and juvenile.

Heard both the parties and perused the impugned order.

On careful perusal of the school record, mark-sheet of 8th standered, progress report of 3rd standered and scholar registered, where date of birth of the applicant mentioned as 07.06.1998 and the statement of teacher as well as date of incident i.e. 07.12.2015, it appears that on the date of incident, the age of accused was 17 years and 6 months, which means that at the time of commission of crime the applicant was below the age of 18 years. But learned Sessions Court considered the statement of mother and father of the applicant and on that basis concluded that they do not know the exact date of birth of the applicant. They mentioned the date of birth in school record on approximate calculation and also stated that one of the teachers suggested the date of birth. For these reasons, the Session Court found that the applicant was not Juvenile and not below the age of 18 years.

After considering the whole facts that the Juvenile Justice (Care and Protection of Children) Act, 2015 came into force on 31.12.2015 prior to that Juvenile Justice (Care and Protection of Children) Act, 2000 was enforcible. The date of crime is 07.12.2015, at that time the Act of 2000 was enforcible. The Juvenile Justice (Care and Protection of Children) Rules, 2007 framed under the Act of 2000. A settled procedure for determining the age is contemplated in that Rule.

Rule 12 Sub Rule 2 and 3 are reads as under:-

"12 Procedure to be followed in determination of Age.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(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 Ihe juvenile in conflict with law.

A bare reading of Sub Rule 3 of Rule 12 of Rules, 2007, shows that if matriculation or equivalent certificate is available, then Court will consider the date of birth mentioned therein and in absence whereof, the date of birth certificate from the school first attended and in absence whereof the birth certificate given by a corporation or a municipal authority or a panchayat and in absence of these child can be sent to the Medical Board for medical opinion for deciding the age.

Learned Sessions Court considered the statement of mother father and on that basis concluded the age of the applicant as more than 18 years whereas the school record was available on record, wherein, the date of birth mentioned as 07.06.1998. Definitely, the learned Sessions Court ignored the procedure enumerated in Sub Rule 3 of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The order suffers from some illegality and deserves to be and is hereby set aside. The Sessions Court is directed to decide the age of the Juvenile as per the procedure laid down in the Juvenile Justice (Care and Protection of Children) Rules, 2007 and if the Sessions Court finds that the applicant, on the date of incident, is below 18 years, declare the status of Juvenility of the applicant and proceed as per law.

Accordingly, the revision petition is disposed of with above directions.

No order as to cost.