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(SUPREME COURT OF INDIA)
K.S. Radhakrishnan and Madan B. Lokur, JJ.
Ashwani Kumar Saxena v. State of M.P.
Criminal Appeal No.1403 of 2012 : against the judgment and order of M.P. High Court, passed in Criminal Revision No.495 of 2009 [published in 2011(III) MPWN 40];
Decided on 13.9.2012.
Held : The Code lays down the procedure to be followed in every investigation, inquiry or trial for every offence, whether under the Indian Penal Code or under other Penal laws. The Code makes provisions for not only investigation, inquiry into or trial for offences but also inquiries into certain specific matters. The procedure laid down for inquiring into the specific matters under the Code naturally cannot be applied in inquiring into other matters like the claim of juvenility under section 7A read with rule 12 of the 2007 Rules. In other words, the law regarding the procedure to be followed in such inquiry must be found in the enactment conferring jurisdiction to hold inquiry.
“Age determination inquiry” contemplated under section 7A of the Act r/w rule 12 of the 2007 Rules enables the Court to seek evidence and in that process, the Court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the Court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the Court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable.
We notice that none of the above mentioned principles have been followed by the Courts below in the instant case. The Court examined the question of juvenility of the appellant as if it was conducting a criminal trial or inquiry under the Code.
We are of the view that admission register in the school in which the candidate first attended is a relevant piece of evidence of the date of birth. The reasoning that the parents could have entered a wrong date of birth in the admission register hence not a correct date of birth is equal to thinking that parents would do so in anticipation that child would commit a crime in future and, in that situation, they could successfully raise a claim of juvenility.
[Para 45
We are, therefore, of the view that the appellant has successfully established his juvenility on the date of occurrence of the crime i.e. 19.10.2008 on which date he was aged only 17 years 11 months 25 days.
The appeal is allowed. Sentence awarded by the Court below is accordingly set aside and the case records be placed before the concerned J.J. Board for awarding appropriate sentence. (2000)5 SCC 488, (2005)3 SCC 551, (2009)13 SCC 211, (2010)5 SCC 344, 2011(1) JLJ 414 (SC), (2010)3 SCC 757, (2011)2 SCC 224, 2011(2) Scale 429, (2011)13 SCC 751 and (2008)13 SCC 133 relied on.
fd’kksj U;k; ¼ckydksa dh ns[kjs[k vkSj laj{k.k½ vf/kfu;e] 2000 && /kkjk 2¼e½] 6] 7d rFkk 20 && fd’kksj U;k; ¼ckydksa dh ns[kjs[k vkSj laj{k.k½ fu;e] 2007 && fu-2 && naM izfdz;k lafgrk] 1973 && /kkjk 2¼N½ rFkk 2¼t½ && fd’kksjkoLFkk dk iz’u && fdlh Hkh izdze esa mBk;k tk ldrk gS && iwoksZDr fo’ks”k vf/kfu;e ds v/khu tk¡p ds vk/kkj ij vo/kkfjr fd;k tkuk pkfg, && blds fy;s naM izfdz;k lafgrk ds v/khu nkafMd fopkj.k ;k tkWo U;k;laxr ughaA
vfHkfu/kkZfjr % lafgrk izR;sd vijk/k ds fy;s] pkgs og Hkkjrh; naM lafgrk ds v/khu gks ;k vU; naM fof/k;ksa ds] izR;sd vUos”k.k] tk¡p ;k fopkj.k esa vuqlj.k dh tkus okyh izfdz;k vf/kdfFkr djrh gSA lafgrk u dsoy vijk/kksa ds vUos”k.k] tk¡p ;k fopkj.k ds fy;s cfYd dfir; fofufnZ”V ekeyksa esa Hkh tk¡p dk mica/k djrh gSA lafgrk ds v/khu fofufnZ”V ekeyksa esa tk¡p ds fy;s vf/kdfFkr izfdz;k] uSlfxZd :i ls] vU; ekeyksa tSls /kkjk 7d lgifBr 2007 ds fu;eksa ds fu;e 12 ds v/khu fd’kksjkoLFkk ds nkos dh tk¡p djus esa ykxw ugha dh tk ldrhA vU; ‘kCnksa esa] bl tk¡p esa vuqlj.k dh tkus okyh izfdz;k ds laca/k esa fof/k vf/kfu;fer esa ikbZ tkuk pkfg, ftlesa tk¡p djus dh vf/kdkfjrk iznRr dh xbZ gksA
vf/kfu;e dh /kkjk 7d lgifBr 2007 ds fu;eksa ds fu;e 12 ds v/khu vuq/;kr ^^vk;q vo/kkj.k tk¡p** U;k;ky; dks lk{; yk’kus ds fy;s leFkZ cukrh gS rFkk bl izfdz;k esa] U;k;ky; eSfVªdqys’ku ;k lerqY; izek.ki=] ;fn miyC/k gS] izkIr dj ldrk gSA fdlh Hkh eSfVªdqys’ku ;k lerqY; izek.ki= ds vHkko esa gh] U;k;ky; dks [ksy fo|ky; ls fHkUu izFke ckj mifLFkr fo|ky; ls tUe fnukad izek.ki= izkIr djus dh vko’;drk gSA dsoy eSfVªdqys’ku ;k lerqY; izek.ki= ;k izFke ckj mifLFkr fo|ky; ls tUe fnukad izek.ki= ds vHkko esa gh] U;k;ky; dks fuxe ;k uxjikfyd izkf/kdkjh ;k iapk;r }kjk fn, x, tUe izek.ki= ¼’kiFki= ugha cfYd izek.ki= ;k nLrkost½ dh vko’;drk gSA lE;d~ :i ls xfBr fpfdRlk cksMZ ls fpfdRlh; jk; izkIr djus dk iz’u dsoy rHkh mRiUu gksrk gS tc Åij mfYyf[kr nLrkost vuqiyC/k gksaA
gekjh vos{kk gS fd izLrqr ekeys esa fupys U;k;ky;ksa }kjk Åij mfYyf[kr fd, x, fdlh Hkh fl)kar dk vuqlj.k ugha fd;k x;k gSA U;k;ky; us vihykFkhZ dh fd’kksjkoLFkk ds iz’u dh tk¡p ,sls dh gS ekuks ;k lafgrk ds v/khu nkafMd fopkj.k ;k tk¡p dj jgk FkkA
gekjk fopkj gS fd ml fo|ky; esa izos’k jftLVj] ftlesa vH;FkhZ izFke ckj mifLFkr gqvk Fkk] tUe fnukad ds lk{; dk lqlaxr va’k gSA ;g rdZ fd vfHkHkkodksa us izos’k jftLVj esa xyr tUe fnukad dh izfof”V djkbZ gks blfy, ;g tUe fnukad dk lgh fnukad ugh gS] ;g lkspus ds rqY; gS fd vfHkHkkodksa us ,slk igys&gh ls blfy, fd;k gksxk rkfd ckyd Hkfo”; esa vijk/k djs rFkk] bl fLFkfr esa os lQyrkiwoZd fd’kksjkoLFkk dk nkok dj ldsaA
blfy,] gekjk fopkj gS fd vihykFkhZ us vijk/k gksus ds fnukad vFkkZr~ 19-10-2008 dks viuh fd’kksjkoLFkk dks lQyrkiwoZd fl) fd;k gS ftl fnukad dks mldh vk;q ek= 17 o”kZ 11 ekl 25 fnu FkhA
vihy eatwj dh tkrh gSa fupys U;k;ky; }kjk fn;k x;k naMkns’k rnuqlkj vikLr fd;k tkrk gS rFkk ekeys ds vfHkys[k leqfpr naMkns’k ds fy;s lacaf/kr fd’kksj U;k; cksMZ dks Hksts tk,¡A ¼2000½ 5 ,l lh lh 488] ¼2005½ 3 ,l lh lh 551] ¼2009½ 13 ,l lh lh 211] ¼2010½ 5 ,l lh lh 344] ¼2011½ 1 ts ,y ts 414 ¼mPpre U;k-½] ¼2010½ 3 ,l lh lh 757] ¼2011½ 2 ,l lh lh 224] 2011 ¼2½ Ldsy 429] ¼2011½ 13 ,l lh lh 751 rFkk ¼2008½ 13 ,l lh lh 133 voyafcrA
Radhakrishnan, J. -- 1. Leave granted.
2. We notice that large number of cases are being brought before this Court against orders passed by the criminal Courts, on the claim of juvenility under section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short “the J.J. Act”) read with rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short ‘the 2007 Rules’), primarily for the reason that many of the criminal Courts are not properly appraised of the scope of enquiry contemplated under those statutory provisions. We find it appropriate in this case to examine the nature of inquiry contemplated under section 7A of the J.J. Act read with rule 12 of the 2007 Rules, for future guidance and application by the Courts, Boards and the Committees functioning under the J.J. Act and Rules.
3. Before considering the above question and other related issues, we may examine, what transpired in the case on hand. Appelant-Ashwani Kumar Saxena and two others, namely, Jitender and Ashish were charge-sheeted for the offences punishable under section 302 of the Indian Penal Code (for short ‘the IPC’ read with section 27 of Arms Act and section 302 IPC read with section 34 of the IPC, respectively, for an offence committed on 19.10.2008 at 12:30 a.m. in front of Krishna Restaurant, Chhatarpur which resulted in the death of one Harbal Yadav for which Sessions Case No.28/09 was pending before the First Additional Sessions Judge, Chhatarpur, Madhya Pradesh (M.P.). On 11.11.2008 the appellant filed an application before Chief Judicial Magistrate (CJM) Court, Chhatarpur under sections 6 and 7 of the J.J. Act claiming that he was juvenile on the date of the incident and hence, the criminal Court had no jurisdiction to entertain this case and the case be referred to Juvenile Justice Board and he be granted bail.
4. The appellant stated that his date of birth is 24.10.1990 and hence on the date of the incident i.e. on 19.10.2008, he was aged only 17 years, 11 months and 25 days and was thus a juvenile. In support of this contention, he produced the attested mark sheets of the High School of the Board of Secondary Education, M.P. Bhopal as well as Eighth Standard Board Examination, wherein the date of birth was mentioned as 24.10.1990.
5. Smt. Kiran, widow of victim raised objection to the application contending that no evidence had been adduced to show that the entry made in the school register was correct and normally parents would not give correct date of birth on the admission register. Further, it was also stated that on physical appearance, as well, he was over 21 years of age and therefore the application be dismissed. Ram Mohan Saxena, father of the appellant, was examined as PW1 and he deposed that the date of birth of his son was 24.10.1990 and that he was born in the house of Balle Chaurasia in Maharajpur and his son was admitted in Jyoti Higher Secondary School, wherein his date of birth was also entered as 24.10.1990. Reference was also made to the transfer certificate issued by the above mentioned school, since the appellant had studied from 8th standard to 10th standard in another school, namely, Ceiling Home English School. Further reliance was also placed on a horoscope which was prepared by one Daya Ram Pandey, marked as Ex.P-4 Savitri Saxena the mother of the appellant was also examined as PW4, who also deposed that his son was born on 24.10.1990 and had his education at Jyoti Higher Secondary School and the School Admission Register kept in the school would also indicate his correct date of birth.
6. The CJM Court thought of conducting an ossification test for determination of the age of the appellant. Dr. R.P. Gupta, PW2 conducted age identification of the body of the appellant by X-ray and opined that epiphysis of wrist, elbow, knee and iliac crest was fused and he was of the opinion that the appellant was more than 20 years of age on 14.11.2008 and a report exhibited as P-5 was su
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