HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

Case : Crl R No. 23/2020

CrlM No. 1687/2020

Pronounced on:0 3.06.2021.

Khalid Hussain @ Munna

…. Petitioner(s)

Through:-

Sh. Zainab Shamas Watali,

Advocate.

V/s

Union Territory of J&K

…..Respondent(s)

Through:-

Sh. Aseem Sawhney, AAG.

CORAM :

HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

JUDGMENT

01.

This revision is directed against the order dated 31.10.2020

passed by the learned 2^nd 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.

02.

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

2

Crl R No. 23/2020

Secondary School, Bhalwal Jammu in which the date of birth is

recorded as 31.12.2001.

03.

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.

04.

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 8^th 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.”

05.

This is how the determination of age became necessary, but

this order of Juvenile Justice Board was challenged in an appeal filed

3

Crl R No. 23/2020

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.”

06.

In view of the mandate