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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL WRIT PETITION NO.1663 OF 2009
Rafiq Ahmed Saeed Ahmed : Petitioner
(Orig.Accused No.11)
V/s.
The State of Maharashtra : Respondent
(Orig.Complainant)
....
Mr.A.R. Shaikh for the petitioner.
Mr.S.N.Gawade, Addl. Public Prosecutor for the State.
....
CORAM : S.A. BOBDE, J.
DATE : OCTOBER 05, 2009.
ORAL ORDER:
1. By this petition, the petitioner challenges the order dated
22.5.2009 passed by the Addl. Sessions Judge, Malegaon, declining to
determine the age of the petitioner on the ground that the issue of age can
be resolved only after evidence is led at the trial. Offences under sections
143, 147, 148, 307, 302, 452 and 506 read with 34 of the Indian Penal
Code and sections 4 and 25 of the Arms Act have been registered against
the petitioner and others. The petitioner was arrested on 20.5.2008.
2. In the remand report, the petitioner’s age was mentioned as 19
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years. The petitioner made an application to the Court stating that his
date of birth is 12.01.1992 and that he was a juvenile below the age of 18
years at the time of the commission of the alleged crime. The petitioner,
therefore, prayed in his application for being tried under the provisions of
the Juvenile Justice (Care and Protection of Children) Act, 2000,
hereinafter referred to as the “Act”. For proof of his age, he placed
reliance on the birth certificate and extracts of birth register.
3.
The application was opposed by the prosecution on the ground
that the remand report shows the petitioner’s age to be 19 years and that
his bail application also describes him as a major. Apparently, the
petitioner stated in his memorandum statement recorded in the presence
of panchas that he was a major. The trial Court considered several aspects
of the matter such as the date of the trial, commencement of the trial or
the date of occurrence of the offence for determining the age. However,
while concluding, the trial Court relied on the age mentioned by the
petitioner in the bail application and the remand papers and observed that
the A.P.P. has disputed the correctness of the birth certificate as unreliable.
Accordingly, the trial Court has observed that the age of the petitioner has
not been authentically proved and, therefore, proceeded to reject the
application.
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4. Mr.Shaikh, the learned counsel for the petitioner, submits that the
Act requires the Magistrate before whom a person is produced to
determine the age of the person. Section 7 of the Act reads as follows:-
“7. Procedure to be followed by a Magistrate
not empowered under the Act.–(1) When any
Magistrate not empowered to exercise the powers
of a Board under this Act is of the opinion that a
person brought before him under any of the
provisions of this Act (other than for the purpose of
giving evidence), is a juvenile or the child, he shall
without any delay record such opinion and forward
the juvenile or the child and the record of the
proceeding to the competent authority having
jurisdiction over the proceeding.
(2) The competent authority to which the
proceeding is forwarded under sub-section (1) shall
hold the inquiry as if the juvenile or the child had
originally been brought before it.”
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Section 7A reads as follows:-
“7-A. 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 a child 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 this Act and the rules made
thereunder, even if the juvenile has ceased to be so
on or before the date of commencement of this
Act.
(2) If the Court finds a person to be a juvenile
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5on 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.”
5. Mr.Shaikh, the learned counsel for the petitioner, then relied on
rule 12 and submitted that the order of the learned trial Judge is not
sustainable in law since the rule requires the trial Court to determine the
age of a juvenile in conflict with the law within 30 days from the date of
making an application for such purpose i.e. an application for determining
the age. The learned counsel further submitted that the rule requires the
Court to determine the age of the alleged juvenile based on evidence
referred to in sub-rule (3) of that rule. According to the learned counsel,
in the present case, the trial Court has not followed the mandate of the law
and, therefore, the order is illegal. Rule 12 reads as follows:-
“12. 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, as the case may be, the Committee referred
to in rule 19 of these rules shall determine the age
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6of 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) The Court or the Board or, as the case may
be, the Committee shall decide the juvenility or
otherwise of the juvenile of the child or, as the case
may be, the juvenile in conflict with law, prima
facie on the basis of physical appearances 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;
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(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.
(4) If the age of a juvenile or child or the juvenile
in conflict with law is found to be below 18 years
on the date of offence, on the basis of any of the
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conclusive proof specified in sub-rule (3), the
Court or the Board or, as the case may be, the
Committee shall in writing pass an order stating
the age and declaring the status of juvenility or
otherwise, for the purpose of the Act and these
rules and a copy of the order shall be given to such
juvenile or the person concerned.
(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms of section
7-A, section 64 of the Act and these rules, no
further inquiry shall be conducted by the Court or
the Board after examining and obtaining the
certificate or any other documentary proof referred
to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall
also apply to those disposed off cases, where the
status of juvenility has not been determined in
accordance with the provisions contained in sub-
rule (3) and the Act, requiring dispensation of the
sentence under the Act for passing appropriate
order in the interest of the juvenile in conflict with
law.”
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6. It is clear from the provisions of the rule, in particular sub-rule (3)
that the trial Court on the basis of matriculation or equivalent certificates
and in the absence whereof, the date of birth certificate from the school
first attended; and in the absence whereof, the birth certificate given by a
corporation or municipal authority or a panchayat, in that behalf. Where
and only where the aforesaid certificates are absent, the trial Court has to
decide on the basis of medical opinion from a duly constituted Medical
Board. The rule further makes it clear that where it is not possible for the
Court to exactly assess the age, the Court is bound to give the benefit of
doubt to the child or the juvenile by considering his age to be on the
lower side within the margin of one year. In any case, it is incumbent on
the trial Court to record a finding based on section 7 and 7A of the Act
and rule 12 of the Rules. Sub-rule (3) of rule 12 states that while passing
orders in such a case, the trial Court shall record a finding in respect of
the age of the juvenile which is then treated as conclusive proof of the age
as regards such child. From the impugned order, it appears that the only
finding recorded by the trial Court is in paragraph 9 by observing as
follows:-
“……. because in the present case the age of the
accused have not been authentically proved and the
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10prosecution has disputed the contents of the birth
certificate and the contents of extract of the birth
register.”
7. The above finding results in a clear mis-carriage of justice. The
trial Court has not given any reasons why it is of the opinion that the age
has not been authentically proved. It appears that the trial Court formed
its opinion because the prosecution disputed the contents of the birth
certificate and the contents of the extract of the birth register. This is not
permissible. The trial Court must decide on the basis of evidence in the
order in which it is referred to in sub-rule (3) and determine the age
conclusively. In case the trial Court did not believe the certificate, it
ought to have sought the opinion of the Medical Board for determining
the age of the accused. The Court has completely ignored the requirement
of rule 12 which has not been referred to by it. In doing so, the order has
resulted in defeating the purpose of the Act, which was enacted to
consolidate the law relating to juvenile in conflict with law and children
in need of care and protection by adopting a child friendly approach in the
adjudication and disposition of matters in the best interests of children and
for their ultimate rehabilitation. This law has been enacted, inter alia, in
discharge of the primary responsibility of the State for ensuring that all
the needs of the children are met and their basic rights are fully protected
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vide clause (3) of Article 15, clauses (e) and (f) of Article 39 and Articles
45 and 47 of the Constitution of India and in pursuance of the Convention
on the Rights of the Child adopted by the General Assembly of the United
Nations and ratified by the Government of India. If a person is found to
be a juvenile, the Court is bound to ensure that the trial is in accordance
with the Act. This is obviously not possible if the trial Court fails to
determine the age of the juvenile when raised before it. It was not
permissible for the trial court to reject the application without sufficient
reasons and because the prosecution has disputed the contents of the birth
certificate and the contents of the extract of birth register, the trial Court
was duty bound in law to exhaust the modes of determining the age
provided by the law and render a clear finding about the age of the
petitioner. This not having been done, the impugned order is set aside.
The matter is remanded back to the trial Court for a fresh decision, in
accordance with law. The trial Court shall decide the application within
six weeks from the date the petitioner appears before it. The petitioner is
directed to appear before the trial Court on 12.10.2009. Order
accordingly.
8. The Criminal Writ Petition stands disposed of.
S.A. BOBDE, J.
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