The court's decision was influenced by the application of Rule 12 of the Juvenile Justice Rules to determine the age of the minor victim and the implications of the victim's age at the time of marriage and childbirth on the petitioner's eligibility for bail.

JUDGMENT :

AVNEESH JHINGAN, J

1. The matter is taken up for hearing through video conference due to COVID-19 situation.

2. This petition is filed under Section 439 Cr.P.C for grant of regular bail in FIR No. 872, dated 3rd November, 2018, under Sections 363, 365 and 366-A of the Indian Penal Code, 1860 registered at Police Station City Sonepat, District Sonepat.

3. The FIR was registered at the behest of Om Pal Singh. It was stated that he was having three daughters. On 1st November, 2018 one of his daughter (hereinafter referred to as 'victim') went to market to purchase household items but never came back. It was alleged that his daughter was kidnapped.

4. On 9th January, 2021 the petitioner was arrested. He had solemnized marriage with the victim on 17th April, 2019 and she delivered a baby on 29th September, 2020. As per the school record the date of birth of the victim is 3rd January, 2004.

5. Learned counsel for the petitioner submits that the victim and the petitioner are married. They were blessed with a child and are living happily, hence the petitioner should be granted bail.

6. Learned State counsel opposes the prayer for grant of bail. Submissions are that the victim was about 15 years of age when the marriage took place and the birth of the child is an indicator of physical relationship being made with the minor.

7. Learned counsel for the petitioner relies upon the family register for the determination of the age of the victim. He is not in a position to dispute the fact that as per the school record the victim was of about 15 years of age when the marriage was solemnized.

8. The Supreme Court in “Jarnail Singh vs. State of Haryana” Criminal Appeal No. 1209 of 2010, decided on 1st July, 2013” has dealt with the issue with regard to determination of the age of the minor victim.

9. It was held that Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 though is applicable for determining the age of a child in conflict with law, the said provision is to be made basis for determining the age of the child who is a victim of crime. The relevant portion is quoted below:-

“20. 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 court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining –

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age