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HIMACHAL PRADESH HIGH COURT
Kuldip Singh, J.
Naushad Ali @ Nishu —Petitioner
versus
State of H,P. and Ors. .—Respondents
Cr. M.M.O. No. 134 of 2012
Decided on 08.10.2012
Counsel for the Parties:
For the Petitioner:T.S. Chauhan, Advocate.
For the Respondents:Ms. Ruma Kaushik, Additional Advocate General.
IMPORTANT POINT
The Section 7A of the Act mandates whenever a claim of juvenility is raised before any court, the court shall make an inquiry, take such evidence as may be necessary so as to determine the age of such person.
Headnote:Juvenile Justice Act, 2000—Section 7A and Rule 12—Petitioner when produced for judicial remand in a case under Sections 363 and 366 IPC claimed to be a juvenile on basis of birth certificate produced before Court—Magistrate remanded petitioner to judicial custody for convicting further inquiry—Revision—Photo copy of Adhar Card and birth certificate were produced before Magistrate showing petitioner to be juvenile—Magistrate Could have given time for producing original of those documents instead of rejecting them and remanding petitioner to judicial custody—Magistrate should have considered and protected interest of petitioner—Impugned order rejecting claim of petitioner to be juvenile was liable to be set aside and petitioner was entitled to be declared as juvenile.
Held: The learned Magistrate did not accept the photocopies of Adhar Card and birth certificate of the petitioner for the proof of age of the petitioner and the plea of the juvenility of the petitioner was rejected. The petitioner was remanded to judicial custody.
The Section 7A of the Act mandates whenever a claim of juvenility is raised before any Court, the Court shall make an inquiry, take such evidence as may be necessary so as to determine the age of such person. It emerges from the order dated 13.8.2012 that the claim of juvenility of the petitioner was raised before the learned Magistrate, even photocopies of Adhar Card and birth certificate of the petitioner were submitted in support of the juvenility of the petitioner. The learned Magistrate has not recorded a finding in the impugned order that Adhar Card and birth certificate do not ex-facie support the juvenility of the petitioner. He took technical view and observed that since only photocopies of Adhar Card and birth certificate have been produced which cannot be accepted in evidence.
The issue before the learned Magistrate was of juvenility of the petitioner, he should have given sufficient time to the counsel for the petitioner to give second thought to his stand that he does not want to lead any other evidence in support of the juvenility of the petitioner except photocopies of Adhar Card and birth certificate of the petitioner. The learned Magistrate has not considered whether the statement of counsel for the petitioner that he does not want to lead any other evidence except photocopies of Adhar Card and birth certificate of the petitioner was in the interest of the petitioner. The learned Magistrate should have considered and protected the interest of the petitioner, who claimed his juvenility, more so when no finding was recorded by learned Magistrate that prima facie photocopies of Adhar Card and birth certificate do not support the case of the petitioner that he was juvenile on 3.3.2012. The respondents in the reply have stated that birth certificate issued by the Registrar, Births and Deaths, Nagar Panchayat, Arki showing the date of birth of the petitioner 11.8.1994 is correct. Thus, on the date of commission of offence on 3.3.2012, the petitioner was juvenile.
In view of above, the petition is allowed, the order dated 13.8.2012 passed by learned Judicial Magistrate 1st Class, Court No.(1), Sundernagar rejecting the claim of the petitioner of his juvenility is set aside. The petitioner is declared to be juvenile on the date of commission of offence, he may be proceeded in accordance with law. (Paras 10 to 13))
JUDGMENT
Kuldip Singh, J.— This petition under Section 482 Cr.P.C. has been filed for quashing order dated 13.8.2012 passed by learned Judicial Magistrate 1st Class, (1), Sundernagar in bail application No. 15-XXII/2012 State of H.P. vs. Naushad Ali alias Nishu for handing over the custody of the petitioner to his parents or to Juvenile Justice Board and a direction to investigate the matter in accordance with the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ‘Act’).
The facts in brief as per petitioner are that petitioner was born in village Arki, District Solan on 11.8.1994. The petitioner studied in Government Elementary School, Raj Nagar, Nangal upto 5th class. On 3.3.2012 FIR No. 27 under Sections 363, 366 IPC was registered against the petitioner at Police Station, Sundernagar and subsequently Section 376 IPC was also added. It has been alleged that petitioner has kidnapped minor daughter of Shashi Mohamed. The petitioner and daughter of Shashi Mohamed subsequently got married. The petitioner and prosecutrix filed petition No. Cr.M.M. No. 7630 of 2012 under Section 482 Cr.P.C. before the Punjab and Haryana High Court for protection of life and liberty which was subsequently dismissed as withdrawn as they no more required police protection.
2. The petitioner was arrested on 8.8.2012 from Nangal. The petitioner and prosecutrix in the case filed by them has shown their age as 21 years. It has been stated that at the time of arrest, the investigating officer was told by the petitioner that petitioner and prosecutrix were minors, but the investigating officer arrested the petitioner like the ordinary accused without taking into consideration the Act.
3. On 13.8.2012 the petitioner was produced before the learned Judicial Magistrate 1st Class, Sundernagar by respondent No.3 with the application for remand. On behalf of the petitioner, a submission was made before the learned Magistrate that the petitioner may be sent to Juvenile home as his date of birth is 11.8.1994 as the offence was allegedly committed by him on 3.3.2012. At the time of commission of alleged offence, the petitioner was less than 18 years. The petitioner attained 18 years age on 11.8.2012. It has been stated that the certificate of age of petitioner was also tendered before the learned Magistrate on 13.8.2012. The learned Magistrate instead of sending the petitioner to Juvenile Board for conducting further inquiry regarding the age of the petitioner remanded the petitioner to judicial custody.
4. The order dated 13.8.2012 has been assailed in the petition on the grounds that the judicial remand of the petitioner by the Magistrate is in violation of the Act, the impugned order is wrong, illegal and without jurisdiction. The petitioner and his parents informed the investigating officer that petitioner was minor but investigation in the case has not been conducted taking into consideration the Act. The Section 3 of the Act governs the factum of the age of the petitioner irrespective of the fact now, the petitioner has attained 18 years of age on 11.8.2012. The Magistrate has not conducted inquiry in terms of Section 7A of the Act.
5. The reply has been filed. It has been stated that the petitioner was arrested on 8.8.2012. The petitioner during investigation disclosed his age 21 years. The petitioner during medical examination disclosed his age 21 years before the Medical Officer. In the Nikah Nama the petitioner has mentioned his age 21 years. However, in the birth certificate dated 1.9.2012 issued by the Registrar, Births and Deaths, Nagar Panchayat, Arki, the date of birth of the petitioner has been written 11.8.1994. The investigating officer got verified the certificate from the Registrar and found it to be correct as per the original record. The petitioner as well as his parents did not produce any document regarding the date of birth or age proof of the petitioner.
6. It has come in the investigation that petitioner got married
