IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.07.2008 CORAM THE HONOURABLE MR. JUSTICE K. MOHAN RAM CRIMINAL ORIGINAL PETITION No. 15935 of 2008 Manikandan ..Petitioner Vs. State rep. by The Inspector of Police, Rasipuram, Namakkal District, (in Crime No. 1043 of 2004) ..Respondent Prayer: Criminal Original Petition to set aside the order dated 31.1.2007 passed by the Assistant Sessions Judge, Namakkal in S.C. No. 52 of 2006. For Petitioner :: Mr.B. Vasudevan For Respondent :: Mr.Hasan Mohamed Jinnah, Govt. Advocate (Crl.Side) O R D E R
The above criminal original petition has been filed by the second accused in S.C. No. 52 of 2006 on the file of Assistant Sessions Judge, Namakkal to set aside the order dated 31.1.2007.
2. The short facts that are necessary for the disposal of the criminal original petition are as hereunder:
On the basis of a complaint given by one Krishnan, a case in Crime No. 1043/2004 came to be registered on the file of the respondent for the alleged offence under Sections 323, 324, 325, 307 and 447 I.P.C. The occurrence is said to have taken place on 7.9.2004. In the complaint, the age of the second accused/petitioner herein has been mentioned as 17 years whereas his date of birth is shown as 4.6.1987 in the transfer certificate issued by the school. Therefore, a petition in Crl. M.P. No. 792/2006 was filed to try the petitioner herein under the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the “Act”) for separating the case as against him. In that petition, the Chief Judicial Magistrate held that the petitioner was a “juvenile” as on the date of occurrence. Accordingly, the Chief Judicial Magistrate sent a latter dated 14.12.2006 to the Principal Sessions Court, Namakkal, to separate the case as against the petitioner herein. The learned Principal Sessions Judge directed the Chief Judicial Magistrate to proceed in accordance with law to determine the age of the petitioner. Hence, the petitioner was sent for ossification test; x-rays were taken and the doctor has issued a certificate regarding the age of the petitioner and the doctor was examined as a witness. As per the report of the Radiologist, Ex-C1 and the x-ray M.O.1 and on consideration of the evidence of the doctor, the learned Chief Judicial Magistrate held that the petitioner had completed 18 years of age and his age, as on the date of the order was 20 years. Aggrieved by the said order, the petitioner has filed the present criminal original petition”.
3. Heard both sides.
4. Learned counsel for the petitioner submitted that though as per the certificate issued by the school and the birth certificate issued by the Town Panchayat, Gengavalli, the date of birth of the petitioner is 4.6.1987 and as on the date of occurrence namely, 7.9.2004, the petitioner was a juvenile, the learned Chief Judicial Magistrate ignoring those marked documents and solely placing reliance on the ossification test and the Radiologist’s report has come to the conclusion that the petitioner has completed 18 years of age and fixed his age at 20. Learned counsel further submitted that only in the absence of acceptable documentary evidence regarding the date of birth of a person, ossification test can be conducted.
5. On the aforesaid submission, the learned Government Advocate (Crl.Side) was heard. Learned Government Advocate (Crl.Side) submitted that as per Section 2(k) of the Act “juvenile” has been defined as hereunder:
“Juvenile or a child means a person, who has not completed eighteenth year of age”.
Learned Government Advocate (Crl.Side) also brought to the notice of this Court Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007, (hereinafter referred to as the “Rules”) which reads as hereunder:
“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 or as the case may be the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvnile 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 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 the juvenile in conflict with law.”
According to the learned Government Advocate (Crl.Side), only in the absence of date of birth certificate from the school or matriculation or equivalent certificate, medical opinion will have to be obtained from a duly constituted Medical Board. But, in this case, the learned Chief Judicial Magistrate, has failed to follow the procedure contemplated under Rule 12 of the said Rules and therefore, he fairly submitted that the order dated 31.1.2007 has to be set aside. But, at the same time, submitted that a direction has to be issued to the Chief Judicial Magistrate to follow Rule 12 of the said Rules and conduct a fresh enquiry to find out as to whether the transfer certificate and birth certificate belonging to the petitioner are genuine after giving an opportunity of hearing to the respondent.
6. I have considered the submissions made on either side.
7. A perusal of the order passed by the Chief Judicial Magistrate shows that the learned Chief Judicial Magistrate has failed to follow the procedure prescribed under Rule 12 of the said Rules. A reading of Rule 12 makes it abundantly clear that the Court while conducting an inquiry for determining the age of a child or juvenile in conflict with law, shall seek evidence by obtaining (i) the matriculation or equivalent certificates, if available; and if such certificates are not available (ii) the date of birth certificate from the school (other than a play school) first attended. If both the above certificates are not available, then the Court can obtain (iii) the birth certificate given by a Corporation or a Municipal Authority or a Panchayat. Only in the absence of any of the aforesaid certificates, the Court can seek medical opinion from a duly constituted Medical Board. The facts narrated above show that this is not a case where such certificates are not available. As pointed out above, the transfer certificate issued by the school and the date of birth certificate issued by the Panchayat are available on record. Therefore, the question of referring the petitioner to the Medical Board or subjecting him to ossification test does not arise. Therefore, the procedure followed by the learned Chief Judicial Magistrate is not in accordance with law. On this sole ground, the order dated 31.1.2007 has to be set aside and it is accordingly set aside. But, as rightly pointed out by the learned Government Advocate (Crl.Side), the genuineness and authenticity of the transfer certificate and birth certificate belonging to the petitioner should be ascertained and that can be done by conducting an enquiry, after giving an opportunity of hearing to the respondent. Hence, the learned Chief Judicial Magistrate is hereby directed to conduct an enquiry regarding the genuineness and authenticity of the transfer certificate and birth certificate pertaining to the petitioner, which have been produced and thereafter proceed further as contemplated under Rule 12 of the said Rules. The criminal original petition is disposed of accordingly.
nv
To
The Inspector of Police,
Rasipuram,
Namakkal District