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2008(7) Supreme 393
SUPREME COURT OF INDIA
(From Jharkhand High Court)
C.K. Thakker and D.K. Jain, JJ.
Babloo Pasi — Appellant
versus
State of Jharkhand & Anr. — Respondents
Criminal Appeal No. 1572 2008
(Arising out of S.L.P. (Criminal) No.1620 of 2007)
Decided on : 03-10-2008
(2004) 13 SCC 472; (1997) 4 SCC 241; (2004) 7 SCC 659; (2001) 10 SCC 629 – Relied upon.
(b) Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 49(1) – When a plea of the accused being ‘a child’ is raised, it becomes obligatory for the court to determine age of the accused by inquiry, even by asking the parties to lead evidence in that regard – It would, however, not mean that a person who is not entitled to the benefit of the said Act would be dealt with leniently only because such a plea is raised. (Paras 13 and 14)
(1997) 8 SCC 720; (2006) 9 SCC 428 – Relied upon.
(c) Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003 – Rule 22 – Although the Board is bound to obtain the opinion of the Medical Board, but the opinion per se is not a conclusive proof of age of the person concerned. (Para 16)
(2001) 5 SCC 714 – Relied upon.
(d) Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 49(1) – In determining the age of the accused claiming to be a ‘child’, a hyper-technical approach should not be adopted. (Para 18)
(2000) 5 SCC 488 – Relied upon.
(e) Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003 – Rule 22(5)(iv) r/w section 35, Evidence Act, 1872 – Board accepting the entry in Voters List as conclusive without appreciating its probative value and ignoring the Medical Board opinion without examining it – Not tenable. (Paras 21 to 23)
(f) Evidence Act, 1872 – Section 35 – Conditions precedent for admissibility of a document discussed. (Para 22)
1988 (Supp) SCC 604 – Relied upon.
(g) Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003 – Rule 22(5)(iv) – High Court relying on medical board opinion but not indicating as to in what manner Rule 22(5)(iv) has been ignored by the Board – Not tenable. (Para 23)
Facts of the case :
1. Rajesh Mahatha was apprehended for having committed offences under Sections 304B and 306 I.P.C., in relation to the death of his wife.
2. The accused claimed himself to be a “juvenile” as having not attained the age of eighteen years and, therefore, entitled to the protection and privileges under the Act but when required, he failed to produce evidence/certificate in support of his claim.
3. The Magistrate referred him to the Juvenile Board which referred him to a Medical Board for examination and determination of his age. Medical Board concluded that the accused was above eighteen years of age on the date of occurrence; was not a juvenile and, therefore, was not required to be dealt with under the Act.
4. Accordingly, Juvenile Board directed to transfer the accused to the regular jail with a direction to its Superintendent to produce the accused before the Court of Chief Judicial Magistrate. The order passed by the Board was challenged by the accused in the High Court.
5. The High Court was of the view that the Board had ignored the opinion of the Medical Board. Exercising its revisional jurisdiction, the High Court allowed the revision petition; quashed the order of the Board and held that at the relevant time the accused was a juvenile.
Finding of the Court :
The impugned order suffers from the basic infirmity of being violative of the principles of natural justice. Besides, it cannot be sustained on merits as well.
Result : Appeal allowed, matter remitted back.
JUDGMENT
D.K. Jain, J. —
Leave granted.
2. This appeal, by special leave, is directed against the judgment and order dated 21st December, 2006 rendered by the High Court of Jharkhand at Ranchi in Criminal Revision No. 836 of 2006. By the impugned order, the High Court has allowed the revision petition preferred by the accused under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ‘the Act’) against the order passed by the Juvenile Justice Board, Dumka (hereinafter referred to as ‘the Board’). The learned Single Judge has held that on the date of commission of the alleged offences, the accused was a “juvenile” within the meaning of the Act.
3. Rajesh Mahatha, the accused and respondent No.2 in this appeal, was apprehended for having committed offences under Sections 304B and 306 of the Indian Penal Code, 1860 (for short ‘I.P.C.’), in relation to the death of his wife, on the basis of the statement made to the police by the brother of the deceased, the appellant herein. It appears that when the accused was produced before the Chief Judicial Magistrate, Deoghar, he claimed himself to be a “juvenile” as having not attained the age of eighteen years and, therefore, entitled to the protection and privileges under the Act. Accordingly, he was sent to the Child Rehabilitation Centre, Dumka. Since the claim of the accused was disputed on behalf of the prosecution, on 8th February, 2006, the Chief Judicial Magistrate directed the accused to produce evidence/certificate in support of his claim, which he failed to do. It seems that without recording any opinion whether the accused was a Juvenile or not, the Magistrate referred him to the Board. Since the accused failed to produce any evidence regarding his age, the Board referred him to a Medical Board for examination and determination of his age. Taking into consideration, the documentary evidence adduced by the prosecution and observing his physical built up, the Board concluded that the accused was above eighteen years of age on the date of occurrence; was not a juvenile and, therefore, was not required to be dealt with under the Act. Accordingly, the Child Rehabilitation Centre, Dumka was directed to transfer the accused to the regular jail with a direction to its Superintendent to produce the accused before the Court of Chief Judicial Magistrate. The order passed by the Board was challenged by the accused in the High Court. The High Court was of the view that the Board had ignored the opinion of the Medical Board obtained in terms of Rule 22(5)(iv) of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003 (for short ‘the Rules’), wherein the age of the accused was shown as 17-18 years. Thus, exercising its revisional jurisdiction, the High Court allowed the revision petition; quashed the order of the Board and held that at the relevant time the accused was a juvenile. The brother of the victim has preferred this appeal by special leave.
4. We have heard learned counsel for the parties.
5. Learned counsel appearing for the appellant submitted that the order of the High Court having been passed without notice to the appellant, who was admittedly a party in the revision petition, is violative of the principles of natural justice as also the statutory provisions, is illegal and deserves to be set aside on this short ground alone. In support of the proposition that an adverse order cannot be passed without hearing the party concerned, reliance was placed on a decision of this Court in P. Sundarrajan & Ors. Vs. R. Vidhya Sekar1. On merits, it was contended that the High Court has failed to consider in its correct perspective the scope of Rule 22 (5). According to the learned counsel, the medical opinion obtained under the said rule is only a guiding factor and not the sole criterion for determination of age and, therefore, before returning any finding on the age of the accused, the High Court could not ignore other relevant fac
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