Point of Law: Aadhaar card is not recognized by the JJ Act 2015 as a document of proof of date of birth of an accused under said Act.

ORDER :

1. In this bail application under section 439 of the Code of Criminal Procedure, 1973, petitioner laments that he is only 16 years of age and hence he ought to be treated only as a child in conflict with law and could not have even been arrested. Petitioner claims that he should be released on bail forthwith. The contentions bring to the fore questions on the method to be adopted when the age is in dispute.

2. Petitioner, who stands indicted for the offences under sections 366A, 376 and 376(1) of the Indian Penal Code, 1860, apart from sections 3(a) and 4 of the Protection of Children from Sexual Offences Act 2012, alleges that he is only 16 years in age. The main contention urged is that under the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short ‘the JJ Act of 2015’), petitioner is liable to be treated as a child and therefore, he could not have been arrested.

3. Sri.Vishnu Babu and Adv. Aswini Sankar, learned counsel for the petitioner, vehemently contended that as per the Aadhaar card, petitioner's date of birth is 02-01-2006 and therefore, he is required to be treated only as a child in conflict with the law. It was also submitted that the date of birth certificate issued by the Department of Health Services, State of Assam, also shows his date of birth as that on the Aadhar card. Ignoring those crucial documents, the investigating officer is alleged to have arrested the petitioner on 03.06.2022, and he has been in custody since then, contended the learned counsel.

4. Smt. M.K. Pushpalatha, the learned Public Prosecutor, on the other hand, contended that petitioner is the neighbour of the victim who had committed aggravated penetrative sexual assault on the minor victim aged 13. According to the learned Public Prosecutor, the dispute on age is without any basis as the investigating officer had obtained the transfer certificate issued by the school specifying his date of birth as 13.02.2003. This indicates that the petitioner is presently 19 years of age and, hence, he cannot be treated as a child in conflict with law. According to the Public Prosecutor, it was only after noticing the age of the accused as 19 years that he was arrested by the investigating officer. The learned Public Prosecutor also submitted that the date of birth on the Aadhaar card cannot be relied upon, as under the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, the date of birth is not made conclusive while under the Juvenile Justice (Care and Protection of Children) Act, 2015, the main document to prove the age is the certificate from the school specifying the date of birth. The respondent has also filed a statement producing the certificate from the school specifying the date of birth of the petitioner, which was handed over to the investigating officer by the accused himself. Annexure R1(a) is a transfer certificate issued by the school authorities specifying the date of birth of the petitioner.

5. Coming to the facts of the case, it is relevant to notice that petitioner is the accused in Crime No.414 of 2022 of Peerumedu Police Station and is alleged to have committed rape on a victim aged 13 years, after kidnapping her from her mother’s custody.

6. Certain additional circumstances, which are not disputed, are also required to be mentioned. Petitioner is a married man hailing from Assam. He claims to be working at Peerumedu in one of the estates, and the victim was residing with her mother, who is also a worker in the same estate. Consequent to their acquaintance, the accused is alleged to have kidnapped the girl and subjected her to aggravated penetrative sexual assault on 01-06-2022 and thereby committed the offences alleged. Petitioner was arrested on 03-06-2022.

7. It is trite law that the question of the age of a child can be raised at any time. In the decision in Hari Ram v. State of Rajasthan and Another [(2009) 13 SCC 211], it was held that a claim of juvenility c