Point of Law: Committee or Board, as case may be, shall undertake the process of age determination, by seeking evidence by obtaining—
(i) Date of birth certificate from school, or matriculation or equivalent certificate from concerned examination Board, if available; and in absence;
(ii) Birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) Only in absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of Committee or Board.

ORDER :

1. This revision petition has been preferred against order dated 12.01.2021 passed by the learned Additional Sessions Judge (F.T.C.)/Special Judge (POCSO)/Child Court, Korba, DistrictKorba (C.G.) in Special Case (POCSO) No. 35/2019, dismissing the application filed by the applicant under Section 91 of the Cr.P.C.

2. It is submitted by learned counsel for the applicant that the applicant is being prosecuted for charges under Section 363 & 376 of I.P.C. and Section 4 of the Protection of Children from Sexual Offences Act, 2012. The applicant has raised a plea that he was juvenile on the date of incident, however, the learned trial court has initiated an enquiry for determination of age of the applicant. It was during pendency of this enquiry, the applicant made a prayer under Section 91 of the Cr.P.C. to summon the documents of Kotwari Register from office of the Collector. The applicant has earlier made an attempt to obtain copy of Kotwari Panji through R.T.I., but he could not succeed. Prayer of the applicant has been rejected by the impugned order.

3. It is submitted that the impugned order is erroneous. The document prayed for summon by the applicant was essential for determination of the question of juvenility of the applicant. The reason assigned in the impugned order is that the document of Kotwari Panji, does not found mention in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short “the Act, 2015”). It is further submitted that in case of Sunil Vs. State of Haryana, reported in 2009 CJ (SC) 1724, the Hon'ble Supreme Court specifically directed that in what manner, age of the minor victim shall be determined. This direction is similarly applicable in determination of age of the juvenile also. Further, relying on judgment of the Supreme Court in State of Orissa Vs. Debendra Nath Padhi, reported in (2003) 2 SCC 711, it has been held that the accused has entitlement to seek order under Section 91 of the Cr.P.C. In the present case, the applicant is claiming himself to be a juvenile and for being treated as juvenile offender. Hence, invoking of Section 91 of the Cr.P.C. by the applicant, is not barred, therefore, the impugned order is not sustainable, which is liable to be set aside and it is prayed that relief may be granted to the applicant.

4. Learned State counsel opposes the petition submitting that in case of Devendra Nath Padhi (Supra), it has been clearly held by the Supreme Court that the stage of invoking the power under Section 91 of the Cr.P.C., would be ordinarily available to the accused when he enters into defence. It is further submitted that in Section 94 of the Act, 2015 and in the directions in the case of Devendra Nath Padhi (Supra), there is no mention of any Kotwari Register, therefore, the Kotwari Register is a document, which has no authenticity and cannot be relied upon for determination of age of the accused or the victim. Hence, the learned court below has not committed any error in rejecting the application filed by the applicant under Section 91 of the Cr.P.C.

5. I have heard learned counsel for the parties and perused the documents placed on record.

6. Considered on the submissions made by the counsel from both the sides. The guidelines issued by the Supreme Court in case of Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263, regarding determination of age of the accused under paragraph 22, which is reproduced hereunder:-

“22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under :

“12. Procedure to be followed in determination of age.- (1) In every case concerning a child or a juvenile in conflict with law, the cour