Judgment

1. This revision is directed against the order dated 31.10.2020 passed by the learned 2nd Additional Sessions Judge, Jammu in an appeal filed by the petitioner-Khalid Hussain alias Munna against the order dated 02.01.2019 passed by the Juvenile Justice Board, Jammu by virtue of which the petitioner has been declared to be major at the time of alleged occurrence i.e. 08.11.2018. The question involved for consideration in this petition is how the determination of the age became an issue before the Juvenile Justice Board.

2. The accused, according to the order of the Juvenile Justice Board, Jammu dated 12.12.2018, was arrested on 13.11.2018 and he was found in possession of the Aadhar Card in which his date of birth is recorded as 20.10.2001 but during investigation, the Police obtained School Leaving Certificate of the accused from the Government Higher Secondary School, Bhalwal Jammu in which the date of birth is recorded as 31.12.2001.

3. It was because of this discrepancy that the SHO Police Station Gharota applied for his age determination before proceeding further. This application was allowed by the Board and Superintendent Medical Hospital, Sarwal, Jammu was asked to constitute a Medical Board comprising a Radiologist, Physiologist, a Dental Examiner, a Forensic Expert and Chairperson to determine his age and submit a report. Medical Board found that the accused was not a juvenile as he was more than 18 years of age on the alleged date of occurrence.

4. The Juvenile Justice Board comprising Sh. Meyank Gupta, Principal Magistrate and Nischint Pachnanda, Member, vide order dated 02.01.2019 held that the Board has no jurisdiction to deal with the present matter further as the accused is not a juvenile within the meaning of Section 2(m) of Juvenile Justice Act, 2013. Concluding para of this order reads as under:-

“It is relevant to mention here that the date of commission of offence is 7/8 November 2018 and date of registration of FIR is 8th November 2018. In view of the observation of the Medical Board, wherein the age of the accused has been found to be more than 18 years, this Board lacks jurisdiction to deal with the present matter further as the accused is not a Juvenile within the meaning of section 2(m) of Juvenile Justice Act 2013. Accordingly, SHO P/s Gharota is directed to produce the above named accused before the Ld. CJM Jammu for further consideration of remand. Application stands disposed of u/r.”

5. This is how the determination of age became necessary, but this order of Juvenile Justice Board was challenged in an appeal filed by the accused under Section 51(1) of The Jammu and Kashmir of the Juvenile Justice(Care & Protection of Children) Act, 2013 read with The Jammu and Kashmir Juvenile Justice (Care & Protection of Children) Rules, 2014 (hereafter referred to as the Juvenile Justice Act). However, the Jammu and Kashmir Juvenile Justice Act 2013 stands repealed by The Juvenile Justice (Care & Protection of Children) Act, 2015 by the Jammu and Kashmir Re-organization Act, 2019. Section 25 of The Juvenile Justice Act, 2015 reads as under:

“Notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of this Act, shall be continued in that Board or court as if this Act had not been enacted.”

6. In view of the mandate of Section 25 of the Act, this revision is maintainable, as the case was pending on the date, the Act was repealed. In this case, the proceedings are pending against the accused but he is challenging the finding of the Appellate Court under Section 52 of The Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013.

7. One of the grounds of challenge is that the Appellate Court has not properly appreciated the scope of Rule-74, sub-rule (4)(5) and (6) of the J&K Juvenile Justice (Care & Protection of Children) Rules, 2014. These sub-rules a