IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION NO.1335 OF 2019 BETWEEN:
Gangaraju @ Raju S/o Krishnappa Aged about 21 years Presently R/at 2nd Cross, Near Mythri Bazar, Cholanayakanahalli, Hebbala, Bengaluru-560024.
Permanent resident of Goomaiah Gar Palli, Goramtala Mandal, Hindupur Taluk, Andhra Pradesh – 515201.
(By Sri Vikas.M., Advocate) AND:
…Petitioner State of Karnataka By Hebbal Police Station Represented by SPP High Court of Karnataka Bengaluru-560001. …Respondent (By Sri M Divakar Maddur, HCGP) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the impugned order dated 18.9.2019 in Spl. C.C.No.161/2015 on the file of the LIV Additional City Civil and Sessions Judge (CCH- 55) sitting in the Child Friendly Court, Bengaluru Urban District.
This Criminal Revision Petition coming on for Admission, this day the Court made the following:-
O R D E R This petition has been filed by the petitioner- applicant challenging the order passed by the Child Friendly Court, Bengaluru Urban District in Spl.C.C.No.161/2015 dated 18.9.2019, whereunder the application filed under Section 7(2) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as “JJ Act” for short) came to be dismissed.
2. The case of the prosecution in brief is that the mother of the victim filed a missing complaint alleging that the accused has eloped with his minor daughter. On the basis of the said complaint, investigation was conducted and accused and victim were found at Andhra Pradesh. They have been brought back and after recording the statement of the victim and after completion of investigation, charge sheet has been filed for the offence punishable under Sections 366 and 376 of IPC and also under Section 4 of the POCSO Act, 2012. Thereafter, accused filed an application under Section 7(2) of the Act contending that he was aged about 15 years 9 months 19 days as on the date of the alleged incident. He has also produced xerox copy of the transfer certificate issued by Z.P. Boys High School, Gorantla, Andhra Pradesh wherein the date of birth of the accused-petitioner is mentioned as 4.3.1999 and it is submitted that in view of the said document, accused is a juvenile, as such, the case may be transferred to Juvenile Justice Board. The learned Public Prosecutor did not file any objection to the said application. After hearing the parties to the proceedings, the learned Sessions Judge dismissed the application. Challenging the legality and correctness of the said order, the accused- petitioner is before this Court.
3. It is the contention of the learned counsel for the petitioner-accused that along with the application filed under Section 7(2) of the JJ Act, xerox copy of the transfer certificate issued by Z.P.Boys High School, Gorantla, Andhra Pradesh has been produced to substantiate the contention of the petitioner that his date of birth is 4.3.1999 and as on the date of the alleged incident he was less than 16 years, which came to be dismissed. Further, petitioner filed one more application before the same Court by producing all the original records, seeking to pass appropriate orders by following the procedure as contemplated under Section 7A of the Act and thereafter, to transfer the case to Juvenile Justice Board for the purpose of trial. But the Court, by order dated 31.10.2019, rejected the said application holding that it cannot review its own order. Hence, petitioner has prayed to allow the application and to set aside the impugned order.
4. Per-contra, learned High Court Government Pleader vehemently argued that the records indicate that prosecution has examined almost all the witnesses and the case has now been posted for recording the statement of accused under Section 313 of Cr.P.C. At this belated stage, the said document has been produced contending that petitioner was minor and juvenile as on the date of alleged incident. It is his further submission that the accused himself has made a declaration that as on the date of alleged incident he was a major and has also produced the driving licence, which shows that he is born on 4.3.1993. It is his further contention that petitioner has been appointed as Driver in Vijay Hospital, Hyderabad and in this regard a letter issued by Dr.D.Ashok Reddy of the said hospital is produced to show that he has worked in the said hospital. It is his further submission that P.W.4, the mother of the victim girl has stated that accused was driver in Uber, Passenger Vehicle Company. All these materials clearly show that as on the date of the alleged incident, he was major. As such, the trial Court after considering all the material placed on record, has come to a right conclusion and has rightly dismissed the application. On these grounds, he prayed to dismiss the petition.
5. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
6. For the purpose of gravity, I quote Sections 7 and 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000, which reads as under:
“7. Procedure to be followed by a Magistrate not empowered under the Act.- (1) When any Magistrate not empowered to exercise the powers of a Board under this Act is of the opinion that a person brought before him under any of the provisions of this Act (other than for the purpose of giving evidence), is a juvenile or the child, he shall without any delay record such opinion and forward the juvenile or the child and the record of the proceeding to the Competent Authority having jurisdiction over the proceeding.
(2) The Competent Authority to which the proceeding is forwarded under sub- section (1) shall hold the inquiry as if the juvenile or the child had originally been brought before it.
7-A. Procedure to be followed when claim of juvenility is raised before any Court.- (1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a Court shall be deemed to have no effect.”
On a close reading of these two sections, whenever an accused is produced before the Court and if the Magistrate is not empowered to exercise the powers of a Board under the Act, then without delay, the Magistrate shall record the opinion and forward the juvenile or the child as the case may be, to the competent authority having jurisdiction over the proceeding. Further, the procedure to be followed has been laid down under Section 7A of the JJ Act.
7. Keeping in view the above said preposition of law, the contention taken up by the learned counsel for the petitioner is that his date of birth is 4.3.1999 and the alleged incident has taken place on 23.12.2014 and as on the date of incident he was aged 15 years 9 months and 19 days. However, it is the contention of the learned High Court Government Pleader that already much of water has flown and case is already fixed for recording the statement of the accused. Under the said circumstances, the benefit under the said Act cannot be extended to the petitioner.
8. It is well settled preposition of law as per Section 2(4) of the U.P.Children Act, 1951 that in absence of anything showing that the entries in the certificate did not relate to the accused or were incorrect, the same cannot be rejected on the basis of surmise that generally parents understate the age of their children at the time of admission to the school. This preposition of law has been laid down by the Hon’ble Apex Court in the case of Bhoop Ram Vs. State of Uttar Pradesh reported in (1989) 3 SCC 1 wherein at paragraph Nos.7 and 8, it has been observed as under:-
“7. On a consideration of the matter, we are of the opinion that the appellant could not have completed 16 years of age on 3-10-1975 when the occurrence took place and as such he ought to have been treated as a “child” within the meaning of Section 2(4) of the U.P. Children Act, 1951 and dealt with under Section 29 of the Act. We are persuaded to take this view because of three factors. The first is that the appellant has produced a school certificate which carries the date 24-6- 1960 against the column “date of birth”. There is no material before us to hold that the school certificate does not relate to the appellant or that the entries therein are not correct in their particulars. The Sessions Judge has failed to notice this aspect of the matter and appears to have been carried away by the opinion of the Chief Medical Officer that the appellant appeared to be about 30 years of age as on 30-4-1987. Even in the absence of any material to throw doubts about the entries in the school certificate, the Sessions Judge has brushed it aside merely on the surmise that it is not unusual for parents to understate the age of their children by one or two years at the time of their admission in schools for securing benefits to the children in their future years. The second factor is that the Sessions Judge has failed to bear in mind that even the trial Judge had thought it fit to award the lesser sentence of imprisonment for life to the appellant instead of capital punishment when he delivered judgment on 12-9-1977 on the ground the appellant was a boy of 17 years of age. The observation of the trial Judge would lend credence to the appellant's case that he was less than 10 (sic 16) years of age on 3-10-1975 when the offences were committed. The third factor is that though the doctor has certified that the appellant appeared to be 30 years of age as on 30-4- 1987, his opinion is based only on an estimate and the possibility of an error of estimate creeping into the opinion cannot be ruled out. As regards the opinion of the Sessions Judge, it is mainly based upon the report of the Chief Medical Officer and not on any independent material. On account of all these factors, we are of the view that the appellant would not have completed 16 years of age on the date the offences were committed. It therefore follows that the appellant should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment when he was convicted by the Sessions Judge under various counts.
8. Since the appellant is now aged more than 28 years of age, there is no question of the appellant now being sent to an approved school under the U.P. Children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra v. State of U.P. [(1981) 4 SCC 149 : 1981 SCC (Cri) 809] that where an accused had been wrongly sentenced to imprisonment instead of being treated as a “child” under Section 2(4) of the U.P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthwith. Accordingly, in this case also, we sustain the conviction of the appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith. The appeal is therefore partly allowed insofar as the sentence imposed upon the appellant are quashed.”
9. It is well settled preposition of law that a person below 18 years at the time of alleged incident can claim the benefit of the Act at any time. Even as could be seen from Section 49 of the JJ Act, where it appears to a competent authority that person brought before it under any of the provisions of this Act is a juvenile or child, the competent Court shall make due enquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be.
10. Sub-clause (3) of Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 (hereinafter referred to as “Rules” for short) indicates that the age determination inquiry by the court or Board, by seeking evidence, is to be derived from:
(i) the matriculation or equivalent certificates, if available, and in the absence of the same;
(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;
11. Clause (b) of Rule 12(3) of the Rules provides that only in the absence of any such document, a medical opinion be sought for from a duly constituted Medical Board, which would declare the age of juvenile or the child. In case exact assessment of the age cannot be done, the court or the Board or as the case may be, the Child Welfare Committee, for reasons to be recorded by it, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on the lower side within a margin of one year.
12. It is well settled preposition of law as held by the Hon’ble Apex Court that the plea of juvenility can be raised at any time, even after the relevant judgment/order has attained finality and even if no such plea had been raised earlier. While considering the case, it is the date of the commission of the offence and not the date of taking cognizance or of framing of charges or of the conviction that is to be considered. Where the plea of juvenility has not been raised at the initial stage of trial and has been taken only on the appellate stage, the Court has consistently maintained conviction, but has set aside the sentence. This preposition of law has been laid down by the Hon’ble Apex Court in the case of Abdul Razzaq Vs. State of Uttar Pradesh reported in (2015) 15 SCC 637 wherein at paragraph No.13, it has been observed as under:
“13. Again, in Union of India v. Ajeet Singh it was held: (SCC p. 196, para 19) “19. The provisions of the JJ Act have been interpreted by this Court time and again, and it has been clearly explained that raising the age of ‘juvenile’ to 18 years from 16 years would apply retrospectively. It is also clear that the plea of juvenility can be raised at any time, even after the relevant judgment/order has attained finality and even if no such plea had been raised earlier. Furthermore, it is the date of the commission of the offence, and not the date of taking cognizance or of framing of charges or of the conviction, that is to be taken into consideration. Moreover, where the plea of juvenility has not been raised at the initial stage of trial and has been taken only on the appellate stage, this Court has consistently maintained the conviction, but has set aside the sentence. (See Jayendra v. State of U.P. Gopinath Ghosh v. State of W.B., Bhoop Ram v. State of U.P., Umesh Singh v. State of Bihar, Akbar Sheikh v. State of W.B., Hari Ram v. State of Rajasthan, Babla v. State of Uttarakhand and Abuzar Hossain v. State of W.B.)”
13. Keeping in view the ratio laid down in the above referred two decisions, on perusal of the order of the trial Court it indicates that the Court below has taken into consideration the age declaration made in the bail application and has come to the conclusion that he was major. It has also taken into consideration the driving licence and the admission made by P.W.4, the mother of victim girl without properly looking into the records or without determination of the age by adopting the test by the competent authority or the Board. In that light, I am of the considered opinion that the method adopted by the Court below is not in accordance with the law laid down by the Hon’ble Apex Court.
14. Keeping in view the above facts and circumstances, I am of the considered opinion that the petitioner-accused has made out a case to interfere with the order of the trial Court. Hence, petition is allowed and the order passed by the Child Friendly Court, Bengaluru Urban District in Spl.C.C.No.161/2015 dated 18.9.2019 is set aside and matter is remitted to the Court below to consider the preposition of law as laid down by the Hon’ble Apex Court and also the provisions of law contained in JJ Act, 2000 and other subsequent amendments and thereafter, pass appropriate orders for determination of age of the petitioner. If, after determination, the Court below comes to the conclusion that the age of the petitioner-accused is less than 18 years as on the date of incident, then pass appropriate orders directing him to appear before the Juvenile Court.
In view of disposal of the petition, I.A.No.2/2019 filed for stay does not survive for consideration. Hence, it is disposed of.
Sd/- JUDGE bkp