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SUPREME COURT OF INDIA
K.S. RADHAKRISHNAN & MADAN B. LOKUR, JJ.
ASHWANI KUMAR SAXENA - Appellant
VERSUS
STATE OF M.P. - Respondent
Criminal Appeal No. 1403 of 2012 Special Leave Petition (Crl) No. 7271 of 2011
Decided on : 13-09-2012.
(b) Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 7A r/w Rule 12 (3) (a) (i) to (iii), Juvenile Justice (Care and Protection of Children) Rules, 2007 – “Age determination inquiry” – Courts/J.J. Board and the Committees duty bound to seek evidence by obtaining the certificate etc. – Courts act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection – Matriculation or equivalent certificates should first be obtained, if available – In its absence court need obtain date of birth certificate from the school first attended other than a play school – In absence of all these, birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents) need be obtained – Need for obtaining medical opinion from a duly constituted Medical Board arises only if these documents are unavailable or found to be fabricated or manipulated – Enquiry to be completed within 30 days of making application – Further, in case exact assessment of the age cannot be done, then benefit of juvenility should be given to the child or juvenile by considering his or her age on lower side within the margin of one year. (Para 33, 34, 36, 42)
(2008) 13 SCC 133; (2011) 13 SCC 751 – Relied upon
(2009) 13 SCC 211; (2010) 5 SCC 344; (2010) 6 SCC 669; (2010) 3 SCC 757; (2011) 2 SCC 224; (2011) 2 SCALE 429 – Referred
Facts of the case:
Appellant was charged u/s 302.
During pendency of the Sessions case the appellant claimed juvenility before the CJM.
CJM rejected the school certificate and horoscope as unreliable and directed ossification and teeth test. Based on these tests he rejected the claim of juvenility.
Additional Sessions Court and the High Court affirmed the order.
Finding of the Court:
Courts below erred in law.
Result; Appeal allowed.
Based on the provided legal document, the key points regarding the procedure for age determination inquiry under the Juvenile Justice (Care and Protection of Children) Act, 2000, and Rules, are as follows:
The procedure for age determination must be found within the enactment that confers jurisdiction to hold such inquiry, specifically the Juvenile Justice Act and Rules (!) .
The inquiry is distinct from investigation or trial and is limited to establishing the age of the juvenile or child in conflict with law (!) (!) .
The court or the Juvenile Justice Board (JJB) or Committee is obliged to conduct an 'age determination inquiry' within thirty days of the application, seeking evidence based on available documents and, if necessary, medical opinion from a duly constituted Medical Board (!) (!) .
The evidence that can be relied upon includes:
The birth certificate issued by a municipal or panchayat authority (!) (!) .
If these documents are unavailable or found to be fabricated or manipulated, the court or the Board may seek a medical opinion, which is only conclusive if it indicates the age is below 18 years and must be recorded accordingly (!) (!) .
In cases where the exact age cannot be conclusively determined, the benefit of juvenility should be given by considering the child's age on the lower side within a margin of one year (!) .
The order passed after such inquiry shall be the conclusive proof of age for the purpose of determining juvenility, and no further inquiry shall be conducted after this order unless additional circumstances warrant (!) (!) .
The inquiry is a procedural step under the Juvenile Justice Act and Rules, and it is critical that courts follow the specific procedures laid out therein, avoiding procedures under the Criminal Procedure Code (Cr.P.C.) meant for investigations, inquiries, or trials (!) (!) (!) .
The court or authority should act as a parens patriae, acting in guardianship to protect minors, and should seek evidence such as certificates or documents rather than conducting a detailed investigation or trial into the authenticity of the documents, except in cases of suspected fabrication (!) (!) .
The procedure emphasizes the importance of relying on authentic, official documents and certificates, and medical evidence should only be sought when such documents are unavailable or suspected to be manipulated (!) (!) .
In summary, the age determination inquiry under the Juvenile Justice Act and Rules is a specialized, evidence-based process that must be conducted within a strict procedural framework, focusing on documented evidence and medical opinion only when necessary, to ensure an accurate and fair determination of juvenility.
JUDGMENT
K. S. Radhakrishnan, J.-Leave granted.
2. We notice that large number of cases are being brought before this Court against orders passed by the criminal courts, on the claim of juvenility under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ‘the J.J. Act’) read with Rule 12 of The Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short ‘the 2007 Rules’), primarily for the reason that many of the criminal courts are not properly appraised of the scope of enquiry contemplated under those statutory provisions. We find it appropriate in this case to examine the nature of inquiry contemplated under Section 7A of the J.J. Act read with Rule 12 of the 2007 Rules, for future guidance and application by the Courts, Boards and the Committees functioning under the J.J. Act and Rules.
3. Before considering the above question and other related issues, we may examine, what transpired in the case on hand. Appellant – Ashwani Kumar Saxena and two others, namely, Jitender and Ashish were charge-sheeted for the offences punishable under Section 302 of the Indian Penal Code (for short ‘the IPC’) read with Section 27 of Arms Act and Section 302 IPC read with Section 34 of the IPC, respectively, for an offence committed on 19.10.2008 at 12.30 am in front of Krishna Restaurant, Chhatarpur which resulted in the death of one Harbal Yadav for which Sessions Case No.28/09 was pending before the First Additional Sessions Judge, Chhatarpur, Madhya Pradesh (M.P.). On 11.11.2008 the appellant filed an application before Chief Judicial Magistrate (CJM) Court, Chhatarpur under Sections 6 and 7 of the J.J. Act claiming that he was juvenile on the date of the incident and hence, the criminal court had no jurisdiction to entertain this case and the case be referred to Juvenile Justice Board and he be granted bail.
4. The appellant stated that his date of birth is 24.10.1990 and hence on the date of the incident i.e. on 19.10.2008, he was aged only 17 years, 11 months and 25 days and was thus a juvenile. In support of this contention, he produced the attested mark sheets of the High School of the Board of Secondary Education, M.P. Bhopal as well as Eighth standard Board Examination, wherein the date of birth was mentioned as 24.10.1990.
5. Smt. Kiran, widow of victim raised objection to the application contending that no evidence had been adduced to show that the entry made in the school Register was correct and normally parents would not give correct date of birth on the admission Register. Further, it was also stated that on physical appearance, as well, he was over 21 years of age and therefore the application be dismissed. Ram Mohan Saxena, father of the appellant, was examined as PW1 and he deposed that the date of birth of his son was 24.10.1990 and that he was born in the house of Balle Chaurasia in Maharajpur and his son was admitted in Jyoti Higher Secondary School, wherein his date of birth was also entered as 24.10.1990. Reference was also made to the transfer certificate issued by the above-mentioned school, since the appellant had studied from 8th standard to 10th standard in another school, namely, Ceiling Home English School. Further reliance was also placed on a horoscope, which was prepared by one Daya Ram Pandey, marked as exhibit P-4. Savitri Saxena, the mother of the appellant was also examined as PW-4, who also deposed that his son was born on 24.10.1990 and had his education at Jyoti Higher Secondary School and the School Admission Register kept in the school would also indicate his correct date of birth.
6. The C.J.M. court thought of conducting an ossification test for determination of the age of the appellant. Dr. R.P. Gupta, PW-2 conducted age identification of the body of the appellant by X ray and opined that epiphysis of wrist, elbow, knee and iliac crest was fused and he was of the opinion that the appellant was more than 20 years of age on 14.11.2008 and a report
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