1. The Juvenile Justice (Care and Protection of Children) Act, 2000 has been enacted with the object for providing proper care, protection and treatment by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation, but at the same time, it has also to be seen that a heavy duty is cast upon the Courts that while determining the age, the Court has to bear in mind that unscrupulous should not get himself declared as juvenile on the basis of wrong certificate. The determination of age is a delicate matter and it cannot be decided in a routine manner.
2. The revisionist Gaurav Shukla, who is involved in a case under Sections 365, 376 IPC relating to P.S. Ashiyana, District Lucknow, has claimed juvenility on the basis of high school mark-sheet in which his date of birth has been recorded as 02.10.1989. The alleged occurrence took place on 02.05.2005 in respect of which an FIR was lodged by the opposite party No.2. It is not disputed that no one was named in the FIR. When the police proceeded with the investigation, the name of the revisionist along with other co-accused came into light. He approached this Court by way of filing Writ Petition No.3936 (MB) of 2005, in which the arrest of the revisionist was stayed. While the investigation was in progress, the police of Police Station Mahanagar, Lucknow registered another criminal case against the revisionist on 19.07.2005 being Case Crime No.260/2005. In this case also, the revisionist on his appearance claimed juvenility on the basis of high school mark-sheet and when the matter was referred to the Juvenile Justice Board, the Board on the basis of high school mark-sheet, declared the revisionist as juvenile. The case which gave rise to the present revision being Crime No.80/2005 was also referred to the Juvenile Justice Board as the revisionist had claimed juvenility and in this case also, the Juvenile Justice Board declared him as juvenile on the basis of high school mark-sheet in which his date of birth has been mentioned as 02.10.1989. This declaration was made by the Board vide order dated 18.10.2005. This order was challenged by the opposite party No.2 by filing a belated criminal appeal in which the appellate Court, condoned the delay and after hearing, set aside the order dated 18.10.2005 and remitted the matter back to the Juvenile Justice Board with the direction that a fresh inquiry be made with regard to the age of the revisionist. The learned appellate court while allowing the appeal vide judgment and order dated 08.04.2010, directed the Juvenile Justice Board to examine the documentary evidence with regard to the age of the revisionist and then decide as to whether he was juvenile on the date of occurrence. After the matter was remitted back to the Juvenile Justice Board, the Board conducted a detailed inquiry and by the order dated 15.01.2013 again refused to declare him as juvenile. The Board conducted a detailed inquiry and came to the conclusion that the date of birth of the revisionist is not 02.10.1989 but is 14.03.1987. This order of the Board dated 15.01.2013 was again challenged by the revisionist by filing Criminal Appeal No.7/2013, which was allowed on 21.03.2013 and the matter was again sent back to the Board. It appears that the Juvenile Justice Board again passed an order dated 27.03.2014 refusing to declare the revisionist as juvenile. This order was again challenged by the revisionist by way of filing Criminal Appeal No.104/2014. This appeal was also dismissed on 11.03.2015. The orders dated 11.03.2015 passed by the appellate court and that of the Board dated 27.03.2014 have been challenged by the revisionist before this Court.
3. This Court while entertaining the revision of the revisionist and issuing notice to the complainant, passed an order that the trial may go on subject to the decision of this revision. It has been informed to the Court that after the aforesaid order was passed by this Court on 21.04.2015, the trial court proceeded with the trial and now the trial is almost at the fag end and only the judgment is to be pronounced.
4. The revisionist after his implication, has not left any stone unturned to get himself declared as juvenile, but it is really unfortunate that even after a lapse of more than ten years, the matter is going on.
5. I have heard Dr. L.P. Mishra assisted by Shri Sharad Pathak, Advocates on behalf of the revisionist, Shri Zafaryab Jilani, learned Additional Advocate General for the State and Shri J.K. Gupta, learned counsel appearing on behalf of the opposite party No.2.
6. The first submission on behalf of the revisionist is that the occurrence which gave rise to this revision, took place on 02.05.2005. Thereafter, the revisionist was involved in another criminal case in respect of which the FIR was lodged on 19.07.2005 i.e. after a gap of two months from the date of earlier occurrence. In the subsequent FIR, which was registered at the Police Station Mahanagar, the revisionist claimed juvenility on the ground that his date of birth is 02.10.1989, which has been recorded in the high school mark-sheet and the Juvenile Justice Board by the order dated 30.09.2005 declared him as juvenile. This order has attained finality as the same has not been assailed by any of the parties before any forum. It has been contended on behalf of the revisionist that when in the subsequent event pertaining to the month of July, 2005, the revisionist was juvenile, it can safely be held that in respect of an occurrence which took place two months prior to the occurrence of July, the revisionist was a juvenile. According to the revisionist, once the declaration of juvenility is made by the Juvenile Justice Board, it is made for the purposes of this Act and not for the purposes of a particular offence. It has also been submitted on behalf of the revisionist that the Act which came into effect from 2000, was subsequently amended in 2006. By the amendment of 2006, Section 7-A was added and the Rules which were framed earlier, were replaced by new Rules in the year 2007 and it was provided that the new Rules would govern those cases also which were pending before the amendment of 2006. Learned counsel has referred to Rule 97 of the Rules framed in 2007. Rule 97 is reproduced as under:-
"97. Pending Cases:-(1) No juvenile in conflict with law or a child shall be denied the benefits of the Act and the rules made thereunder.
(2) All pending cases which have not received a finality shall be dealt with and disposed of in terms of the provisions of the Act and the rules made thereunder.
(3) Any juvenile in conflict with law, or a child shall be given the benefits under sub-rule (1) of this rule, and it is hereby clarified that such benefits shall be made available to all those accused who were juvenile or a child at the time of commission of an offence, even if they cease to be a juvenile or a child during the pendency of any inquiry or trial.
(4) While computing the period of detention or stay or sentence of a juvenile in conflict with law or of a child, all such period which the juvenile or the child has already spent in custody, detention, stay or sentence of imprisonment shall be counted as a part of the period of stay or detention or sentence of imprisonment contained in the final order of the court or the Board."
7. A perusal of the aforesaid Rules makes it clear that all the pending cases, which have not attained finality are to be dealt with and disposed of in terms of the provisions of the Act and the Rules made thereunder. It also provides that no juvenile or children shall be denied the benefit of the Act and the Rules made thereunder. It needs mention here that when in 2007, the Rules were framed by the Central Government, the Rules of 2004 framed by the State Government were also in existence. Rule 96 of 2007 Rules clearly provides that unless new Rules conforming to these Rules are framed by the State Government concerned under Section 68 of the Act, these Rules shall mutatis mutandis apply for that State. Rule 96 of 2007 Rules, is reproduced as under:-
"96. Application of these rules.-It is hereby declared that until the new rules conforming to these rules are framed by the State Government concerned under Section 68 of the Act, these rules shall mutatis mutandis apply in that State."
8. The submission of the learned counsel for the revisionist is that it is now well settled that even in respect of the occurrence which took place prior to the year 2007, but the question of juvenility has not attained finality, the Rules 2007 shall govern them because after 2007 Rules, the State of U.P. has not framed any new Rules conforming 2007 Rules. Learned counsel has referred to the judgment impugned in this revision and has argued that when the matter came up before the Juvenile Justice Board after remand, the Board as well as the Appellate Court proceeded on the assumption that since the occurrence took place before 2007 Rules came into force, therefore, the Rules of 2004 would govern the field and this approach resulted into dismissal of appeal and the order of the Board declining him to declare as juvenile.
9. Learned counsel for the revisionist has submitted that in 2007 Rules, Rule 12 provides the procedure to be followed by the Board or the Court in determination of the age. The procedure is laid down in sub-rule (3) of Rule 12, which is reproduced 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 cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
10. A perusal of Sub-rule (3) reveals that in every case concerning a juvenile, the age determination inquiry is to be conducted by seeking evidence by obtaining the matriculation or equivalent certificate, if available; and in the absence whereof; the date of birth certificate from the school first attended and in case it is not available, then the birth certificate given by a Corporation or a Municipal Authority or a Panchayat and in case none of these are available, only then medical opinion is to be sought from a duly constituted Medical Board. If any of the three documentary evidence is available as indicated in sub-rule (3) of Rule 12, the Board or the Court as the case may be, cannot call for the medical opinion and rely upon the same.
11. The Rules which were in existence prior to 2007, were quite different. The earlier Rules were contained in Rule 22. In Sub-rule (5) of Rule 22 of 2004 Rules provided that in every case concerning a juvenile, the Board shall either obtain a birth certificate given by a Corporation or a Municipal Authority or a date of birth certificate from the school first attended or matriculation or equivalent certificate, if available; and in the absence of the above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases. Thus, a comparison of both the Rules would reveal that in the earlier Rules, a birth certificate issued by a Corporation or Municipal Authority was given the first preference, the date of birth certificate from the school first attended, was given the second preference and the medical certificate was given the third preference, but in 2007 Rules, the matriculation certificate has been given the first preference, while the date of birth certificate from the first attended school has been given the second preference and in absence thereof, the birth certificate given by a Corporation or Municipal Authority or a Panchayat has been given third preference. The Juvenile Justice Board and the First Appellate Court, both fell into grave error of law by assuming that since the occurrence pertains to the year 2005, before Rule 2007 came into existence, therefore, the Rule 2004 will govern the field while as a matter of fact after framing of 2007 Rules, the same were made applicable in all the cases whether pending or instituted thereafter provided the pending cases had not attained finality. The submission is that since the matter with regard to juvenility of the revisionist had not attained finality and was pending, therefore, Rule 2007 would apply and the courts below have wrongly assumed that Rules 2004 would apply. It was for this reason that the Board as well as the Appellate Court proceeded to rely upon the certificate issued by the school first attended and did not give preference to the high school mark-sheet, which according to 2007 Rules should have been given first preference.
12. It has also been contended on behalf of the revisionist that once the matriculation certificate is available, the Board or the Court is not required to go into further inquiry unless it is found that the said certificate is forged or manipulated, the same has to be given first preference and has to be relied upon. The Court is not required to go into the question as to whether the date of birth as mentioned in the matriculation certificate is correct or not. The only inquiry, which can be conducted by the Board is to the extent that the said certificate is not forged or manipulated. There is nothing on record to show that the mark-sheet filed by the revisionist before the court below was a forged document or was a manipulated one. The same has been proved according the law. The Juvenile Justice Board had confirmed by summoning the relevant documents from the office of Secondary Board and it has nowhere been held that the document is forged one or has been manipulated for this case. The Juvenile Justice Board after remand by the appellate Court, fell into grave error of law in conducting a fishing and roving inquiry in the manner as to how the date of birth was mentioned in the high school certificate. The argument on behalf of the revisionist is that once the matriculation certificate is found to be a genuine document, no further inquiry is required and the Court or the Board has to accept its contents including the date of birth.
13. Learned counsel has drawn the attention of the Court towards Rule 12 of 2007 Rules which provides that documents referred in Sub-rule (3) of Rule 12 are the conclusive proof of age as regards such juvenile in conflict of law. Thus, the matriculation certificate which was a genuine document, was a conclusive proof of the age of the revisionist and no further inquiry was to be conducted as has been done by the Board and the Appellate Court. It has also been submitted by the learned counsel that when the revisionist was declared as juvenile in a subsequent case, how he could be declared not juvenile in the earlier case which took place two months prior to the subsequent case. He further submits that the declaration of a child as juvenile is not for the purposes of a particular offence, but for the purpose of the Act. Learned counsel has referred to Section 49 of the Act. Sub-section (2) of Section 49 provides that no order of a competent authority shall be deemed to have become invalid merely by a subsequent proof that the person in respect of whom the order has been made, is not a juvenile and the age recorded by the competent authority, the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person. In this view of the matter, if the revisionist was juvenile in respect of an occurrence which took place on 19.07.2005, he cannot be said to be major in respect of an occurrence which took place on 02.05.2005 i.e. two months prior to that occurrence.
14. Learned counsel for the revisionist has also submitted that the constitution of the Juvenile Justice Board which declared him as major, was not a duly constituted Board because under the Act and the Rules framed thereunder, the term of the Board is three years. It further provides that a member of the board shall be eligible for appointment for a maximum period of two consecutive terms. This means that the maximum tenure of a member in the Board, is six years because after two terms of three years, he cannot be reappointed. The submission is that the term of Juvenile Justice Board had expired much before the matter was brought to the Board and as such the entire proceedings held by the Board, are absolutely illegal and without jurisdiction.
15. In support of his arguments, learned counsel for the revisionist has placed reliance upon a Supreme Court's decision rendered in the case of Ashwani Kumar Saxena vs. State of Madhya Pradesh, reported in (2012) 9 Supreme Court Cases 750. In this case, the Hon'ble Apex Court while considering the scope of inquiry in determining the age of an accused, who claims to be juvenile, has observed that Section 7A of the Act obliges the court only to make an inquiry, not an investigation or a trial. An inquiry not under the Code of Criminal Procedure, but under the Juvenile Justice Act. The Hon'ble Apex Court has further observed that the criminal courts normally proceed in such matters as if they are conducting a trial or investigation. The statute requires the Court only to make an inquiry and in what manner the inquiry has to be conducted is provided in the Rules. Rule 12 of the Act has to be read along with Section 7A of the Act. Rule 12 uses the expression "prima facie" and "on the basis of physical appearance" or "documents, if available". Rule 12(3) uses the expression "by seeking evidence by obtaining". These expressions re-emphasize the fact that what is contemplated in Section 7A and Rule 12, is only an inquiry. The Hon'ble Apex Court has further observed that the age determination inquiry has to be completed within thirty days from the date of making the application, which is also an indication of the manner in which the inquiry has to be conducted and completed. The procedure to be followed under the Act in conducting an inquiry is the procedure itself i.e. Rule 12 of 2007 Rules. The Court cannot impose procedure laid down in the Cr.P.C. or any other enactment while making an inquiry with regard to juvenility of a person. The claim of juvenility is raised before the Court exercising power under Section 7A of the Act. The Hon'ble Apex Court reminded the Courts as well as the Board that a duty is cast on them to seek evidence by obtaining the certificate etc. mentioned in Rule 12. The courts in such situations act as a guardian of the minors who from their legal disability stand in need of protection. In this case, the Hon'ble Apex Court has made it clear that the inquiry contemplated under the Act and the Rules has nothing to do with an inquiry under the other legislations, like entry in service etc. There may be situations where the entry made in the matriculation certificate, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But the Court or the Board functioning under the Act is not expected to conduct such a roving inquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business.
16. On the strength of the aforesaid observations, the contention of Dr. L.P. Mishra is that once it is established that the high school mark-sheet submitted by the revisionist was a genuine document, it was not open for the Board or the Appellate Court to make an inquiry with regard to entry on the basis of which the date of birth has been mentioned. This can be done only in those cases where the matriculation certificate is found to be forged or a manipulated document. There is nothing on record to indicate that the high school mark-sheet submitted by the revisionist has been manipulated or is a forged document.
17. The submission on behalf of the revisionist is that the ratio laid down in the case of Ashwani Kumar Saxena referred to above, has been followed by this Court as well as by other High Courts and in this view of the matter, the Juvenile Justice Board has unnecessarily gone into the fact that the revisionist has studied in different schools at different points of time and the date of birth mentioned in the transfer certificate issued by the earlier schools, did not match with the date of birth mentioned in the high school mark-sheet. Such type of inquiry was not contemplated as held by Hon'ble the Apex Court.
18. Reliance has also been placed upon a Supreme Court's decision in the case of Jodhbir Singh vs. State of Punjab, reported in (2012) 13 Supreme Court Case 591. In this case also, Hon'ble the Apex Court has followed the ratio laid down in the case of Ashwani Kumar Saxena and has held that where genuineness of the school leaving certificate has not been questioned, the Court was not justified in placing reliance on certain statements made by father or mother of the accused. It was also not open for the Court to place reliance on the statement of village Chowkidar or any other person.
19. It has also been submitted on behalf of the revisionist that in a later incident, the revisionist has already been held to be a juvenile and the order has attained finality and in such situation, the revisionist cannot be held to be major in respect of an occurrence which took place prior to the said occurrence. Section 49 clearly bars the determination of age of an accused if he has already been held to be a juvenile in another case. Sub-section (2) of Section 49 clearly lays down that no order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made, is not a juvenile. The age recorded by the competent authority is to be regarded as age of the person so brought before it which for the purposes of this Act be deemed to be true age of that person. The judgment and order passed by the Appellate Court as well as by the Juvenile Justice Board, therefore, cannot be allowed to stand and are liable to be quashed. The date of birth of the revisionist as mentioned in the high school mark-sheet, should, therefore, be taken to be the correct age and a declaration be made to the effect that he was juvenile at the time of occurrence.
20. It has also been contended on behalf of the revisionist that the learned Appellate Court while hearing the appeal under Section 52 of the Act, did not give proper opportunity of hearing to the revisionist. According to learned counsel for the revisionist, when the appeal was listed for hearing before the Appellate Court, the case on behalf of the revisionist was also being taken up in this Court. In these circumstances, a request was made before the appellate court that either the matter may be adjourned or some time may be given to the revisionist for advancement of his arguments, but the learned Appellate Court instead of waiting for the counsel of the revisionist, proceeded to hear the appeal and passed the ex-parte order dismissing the appeal. It has also been submitted that if the revisionist was not present at the time of hearing of the appeal, the proper course for the appellate Court was to dismiss the appeal for non-prosecution, but the appeal ought not to have decided on merit. The revisionist, therefore, has been deprived of his valuable right of placing argument before the appellate court and as such the matter deserves to be remitted back to the appellate court for giving opportunity of hearing to the revisionist and then decide the appeal considering the arguments of the revisionist.
21. Shri Zafaryab Jilani, learned Additional Advocate General appearing on behalf of the State has submitted that the protection of Section 49 of the Act is not available to the revisionist for the simple reason that sub-section (2) of Section 49 of the Act only provides that once a person has been held to be a juvenile, his juvenility shall not be affected by a subsequent proof that the person is not a juvenile or a child. A bare reading of sub-section (2) would indicate that there may be cases either civil or criminal in nature in which the question of juvenility may be raised and evidence may be led to the effect that such person is a major. If in any proceedings other than the proceedings under the Juvenile Justice Act, a person is declared as major on a particular date, the finding recorded by that Court would not affect his juvenility in the case pending under the Juvenile Justice Act. The declaration of the revisionist as juvenile in a subsequent criminal case does not bar the Court or the Juvenile Justice Board to make an inquiry with regard to the juvenility of the accused. It has further been submitted that when the revisionist was declared as juvenile by the Board, the complainant preferred a revision before the Session Judge, in which the said order was quashed and the matter was remitted back to the Board to make an inquiry with regard to the age of the revisionist in accordance with law and thereafter take a decision as to whether the revisionist was juvenile on the date of occurrence or not. This order passed by the Additional Session Judge, Court No.1, Lucknow dated 08.04.2010 in Criminal Appeal No.14/2010 was not challenged by the revisionist before any other higher forum and as such the said order became final. The Board after receiving the matter back, conducted a detailed inquiry as directed by the Appellate Court and also examined the revisionist to know as to where he studied earlier. It was only after the revisionist to know himself disclosed that he studied in different schools, the Board sought certificates from those schools and after checking the authenticity of those documents, came to the conclusion that the actual date of birth of the revisionist is 14.03.1987 and not 02.10.1989 as claimed by the revisionist.
22. Shri Jilani has further submitted that it has not been disputed by the revisionist that the line of education of the revisionist is from Class Nursery to Class-X. The first school attended by him was St. Francis College and the last school from where he appeared in the high school examination was Herald Public School. The revisionist studied in St. Francis College, Lucknow from Class Nursery to Class-IV and after passing Class-IV examination, he studied at City Montessori School, Mahanagar and passed Class-V, thereafter from Class-VI to Class-VIII, he studied in Lucknow Public College after that he took admission in Herald Public School and passed Class-IX examination. It is not disputed that he also appeared in Class-X examination, but could not clear. The submission on behalf of the State is that according to the revisionist himself, he applied for admission in Herald Public School, Ram Nagar in Class-IX in the year 2003. In the admission form, he mentioned that prior to it, he studied in Chhaya Public School, Bangla Bazar, Lucknow and also submitted a transfer certificate issued by Chhaya Public School, in which his date of birth was mentioned as 02.10.1989. It was on the basis of the said transfer certificate that the revisionist was admitted in the school and on the basis of that transfer certificate, the date of birth is mentioned in the high school mark-sheet. It has been found by the Board as well as by the Appellate Court that the transfer certificate issued by Chhaya Public School was a forged document and as such the date of birth mentioned in the high school mark-sheet on the basis of forged transfer certificate issued by Chhaya Public School, is also wrong and, therefore, the Board was fully justified in making a detailed inquiry with regard to actual date of birth of the revisionist. When the revisionist sought admission in Sherwood Academy, Indira Nagar, Lucknow, his date of birth was mentioned as 02.09.1986 in the admission form. It is also a submission on behalf of the State that when there was no conclusive evidence with regard to the date of birth of the revisionist, the Board had no other option except to make an inquiry as contemplated under the Rules to find out as to what is the actual date of birth of the revisionist.
23. Shri J.K. Gupta, learned counsel appearing on behalf of the opposite party No.2 complainant has submitted that after the Juvenile Justice Act came into force in the year 2000, the State Government of Uttar Pradesh framed Rules in the year 2004. The Central Government framed Rules in the year 2007 and it was provided in 2007 Rules that in case the State has not framed any Rules, the Rules framed by the Central Government shall be followed in every State till the time the State Government frames Rules in consonance with the Rules framed by the Central Government. Since the State Government had already framed Rules in the year 2004 and the occurrence took place in the year 2005, therefore, the Board was justified in relying upon the 2004 Rules and not upon 2007 Rules as framed by the Central Government. In support of this contention, he has relied upon a decision of Hon'ble Kerala High Court reported in 2010 (3) Crimes Page 64 (Ker.) Vidya vs. Government of India & Ors. In this case, the Hon'ble Kerala High Court has held that Section 68(1) of the Act makes it clear that primary rule making authority under the Act is the State Government. The proviso to Section 68(1) of the Act further makes it clear that the rule making power of the Central Government is essentially to make model rules and even where such model rules have been made, they shall apply to a State until such time as the State Government may make rules on the same subject matter. Where the State Government has already made rules, the Model Rules framed by the Central Government on the same subject matter, obviously would not have application to the State, since the State has already exercised its rule making authority.
24. Contrary to the aforesaid view of Hon'ble Kerala High Court, a Coordinate Bench of this Court had an occasion to examine this legal position in the case of Smt. Leena Katiyar vs. State of U.P. & Ors., reported in 2015 (6) ALJ Page 1. In this case, Hon'ble Single Judge of this Court after going through various pronouncements and the Rules, has come to the conclusion that Rule 12 of the Rules 2007 would be applicable to the age determination and inquiry with regard to the juvenility claim when on the date of Notification of the Rules 2007, the inquiry regarding age had not attained finality. The Hon'ble Single Judge has further observed that in view of Rules 96 and 97 of 2007 Rules, there is no justification that even in pending cases, where the age determination has not became final, the Rules framed in the year 2004 be applied. In these circumstances, there is no force in the arguments raised on behalf of the opposite party No.2 that Rules 2004 would apply in the case of the revisionist.
25. Learned counsel for the opposite party No.2 has further submitted that admittedly the revisionist has not produced the high school certificate as required by Rule 12. The document on which the revisionist is relying, is a photostat copy of the high school mark-sheet in which the date of birth of the revisionist is mentioned. However, it is not disputed that the original mark-sheet was also filed by the revisionist at the appellate stage. The submission on behalf of the opposite party No.2 is that the high school mark-sheet cannot be equated with matriculation certificate. When Rule 12 requires that there should be matriculation certificate then any other document cannot be substituted in its place. The mark-sheet is a document which states the marks obtained by a candidate in different subjects. It is not a certificate certifying any fact. According to him, in the absence of a high school certificate, the Board and the first appellate Court rightly relied upon the date of birth certificate issued from the school first attended in which the date of birth of the revisionist is mentioned as 14.03.1987. The occurrence is of the date 02.05.2005 and as such the revisionist was above eighteen years of age at the time of occurrence and both the courts below have, therefore, rightly declined him to declare as a juvenile. It has also been submitted on behalf of the opposite party No.2 that the subsequent criminal case in which the revisionist was declared a juvenile and the order became final, was in fact a manipulated case. The FIR of that case was knowingly got lodged against the revisionist in which revisionist made appearance and on his application, the Board declared him juvenile. Since the case was manipulated one, therefore, the complainant did not file any appeal against the order declaring him juvenile and the order became final, but the said order will not help the revisionist in the present case because the Board under the directions of the appellate court conducted inquiry and recorded a finding that the revisionist was not juvenile.
26. Learned counsel for the opposite party No.2 submits that this matter relates to a case, in which a minor girl while returning home with her younger brother, was forcibly picked up by the revisionist and others co-accused persons and was subjected to brutal gang rape by six persons. The accused-persons not only subjected her to cruelty and brutality, but also her body was burnt with cigarette and lighter. After the aforesaid assault, the girl was thrown on the road. The complainant lodged the report of this occurrence with Police Station Ashiyana and the police after a detailed investigation submitted charge-sheet against six persons including the revisionist. The co-accused have already been convicted after full trial and have been sentenced to undergo ten years rigorous imprisonment. One accused was sentenced to life imprisonment. However, two of them were declared juvenile but they have also been convicted as provided under the Juvenile Justice Act. It has also been submitted that the father of the revisionist is an influential person and he managed to get an FIR registered as Crime No.260/2005. The complainant of this case is no other than the real brother of one of the accused in this case. This itself shows that it was done in a pre-planned manner so that the benefit of juvenility may be taken in this case also. The transfer certificate issued by Chhaya Public School, Bangla Bazar, Lucknow in respect of the revisionist showing passing of Class-VIII examination, was absolutely a forged document and on the basis of the said transfer certificate, the revisionist took admission in Herald Public College. The witness summoned from Sherwood School has clearly stated on oath before the Court that the said transfer certificate was not issued from his school. The submission of the learned counsel is that when the source on the basis of which the date of birth was mentioned in the Herald Public School, was a forged document, the date of birth mentioned in the high school mark-sheet cannot be deemed to be correct date of birth. It also indicates that the transfer certificate of Chhaya Public School was manipulated and on the basis of the said manipulated document, wrong date of birth was got mentioned in Herald Public School and as such the high school mark-sheet also contained wrong date of birth. It has further been submitted on behalf of the opposite party No.2 that when the matriculation certificate was not available, there was no other option before the court except to rely on the certificate of the school first attended by the revisionist. The first school attended by the revisionist is undisputedly St. Francis College, where the father of the revisionist himself disclosed the date of birth of the revisionist as 14.03.1987. This document has been duly proved before the Board and as such there is no illegality or infirmity in the order passed by the Juvenile Justice Board as well as by the Appellate Court.
27. After hearing the learned counsel for the parties and perusal of the records and on giving my anxious thought to the submissions made on behalf of the parties, the most important question which requires consideration by this Court is as to whether the high school mark-sheet relied upon by the revisionist for claiming himself to be juvenile, can be treated as matriculation certificate as provided and required under the Rule 12 of the Rules framed under the Act.
28. The submission on behalf of the revisionist in this regard is that since the revisionist could not clear the high school examination, therefore, there was no question of issuing any certificate. He was only issued mark-sheet giving details of the marks obtained by him in different subjects. The form of the mark-sheet contains a column of date of birth and the date of birth of the revisionist is mentioned in that column. The Board has verified the authenticity of the mark-sheet and has come to the conclusion that the high school mark-sheet filed by the revisionist is neither a forged nor a manipulated document. In these circumstances, the mark-sheet ought to have been considered for fixation of the age of the revisionist.
29. In legal glossary, the definition of certificate has been mentioned as "a writing by which an officer or other person bears testimony that a fact has or has not taken place, etc. It also means a written testimony to the truth of any fact. The mark-sheet has been defined as "the statement of marks". According to the learned counsel for the revisionist, the word used in Rule 12 is matriculation or equivalent certificate. The matriculation certificate does not mean a certificate issued after passing of matriculation examination. It does not say that there should be a certificate of metric pass. A person, who has passed the metric examination, is called a matriculate. Thus, the mark-sheet is equivalent to a matriculation certificate and the Board as well as the Appellate Court ought to have relied upon the high school mark-sheet.
30. It is not disputed that the revisionist is not high school pass. The question for consideration by this Court is as to whether a mark-sheet can be equated with the certificate. As per Oxford Dictionary, a certificate means "an official document that states that the information on it is true". It also means that a certificate is a document confirming that someone has reached a certain level of achievement in a course of study or training. It is a document attesting a fact, in particular. The mark-sheet as defined in the Oxford Dictionary means "a statement of marks obtained by a candidate in different subjects". It also means a sheet of paper regarding marks obtained by a student.
31. If the definition of certificate and mark-sheet is analyzed, it will only result into conclusion that the mark-sheet cannot be equated with the certificate. The high school mark-sheet cannot be given status of matriculation certificate only because of the fact that the date of birth is mentioned in the mark-sheet. There is another reason for the aforesaid conclusion that a certificate is a document which confirms the existence of certain facts, while the mark-sheet does not contain any such attestation or confirmation. The date of birth mentioned in the mark-sheet may be the same as recorded in the office of the Board, but the mark-sheet cannot attain the status of a certificate. Rule 12 of the Rules 2007 requires the matriculation or equivalent certificate and not mark-sheet. It is a settled law that if certain thing is required to be done by the Rule in a particular manner then that should be done strictly in accordance with the Rules or it should not be done. The Rules 2007 clearly require matriculation or equivalent certificate and, further provide that in case the matriculation certificate is not available then the date of birth certificate from the school first attended shall be relied upon.
32. In the present case, the school first attended by the revisionist as per his own admission is St. Francis College, where his date of birth is mentioned as 14.03.1987. I fully agree with the argument advanced on behalf of the revisionist that if the matriculation certificate is available and the same is not forged or manipulated document, then no further inquiry with regard to the date of birth is required to be made as held by Hon'ble the Apex Court in the case of Ashwani Kumar Saxena referred to above. In the absence of matriculation certificate, the law requires that the document to be relied upon by the Board or the Court as the case may be is the certificate of the school first attended. The school first attended by the revisionist is admittedly St. Francis College and the document of the said school have been proved before the Board by examining the employee of that College. The scholar register of St. Francis College was also produced and the Board as well as the appellate Court relied upon the date of birth mentioned in the certificate issued by St. Francis College.
33. In view of the aforesaid discussions, I am of the view that the high school mark-sheet even if a genuine document, cannot be given the status of matriculation certificate for the reason that the mark-sheet is not a document certifying existence of certain facts. The courts below have, therefore, rightly not relied upon the date of birth mentioned in the high school mark-sheet.
34. Another important legal question which arises for consideration by this Court is as to whether this Court while exercising power of revision under Section 53 of the Act, can reverse the findings of the trial court and hold otherwise. The Hon'ble Apex Court in the case of Jabar Singh vs. Dinesh & Anr., reported in (2010) 3 SCC Page 757 has held that the High Court cannot reverse the findings of the trial court in exercise of its revisional jurisdiction. It has further been held that a plain reading of Section 52 of the Act discloses that no statutory appeal is available against any finding of the court that a person was not a juvenile at the time of commission of the offence. Section 53 of the Act provides that the High Court may at any time either on its own motion or on an application received in that behalf, call for the record with regard to any proceeding in which any competent authority or Court of Session has passed an order for the purpose of satisfying himself as to legality or propriety of any such order, and may pass such order in relation thereto as it thinks fit. While exercising such revisional power, the High Court cannot convert itself to an appellate Court and reverse the findings of fact arrived at by the trial court on the basis of evidence or material on record, except where the High Court is not satisfied as to the legality or the propriety of the order passed by the trial court.
On perusal of the impugned judgment and orders passed by both the courts below, I am satisfied as to the legality and propriety of the order passed by both the courts below.
35. Learned counsel for the revisionist has laid much emphasis on the fact that in Rule 12 of the 2007 Rules, it has been clearly provided that the finding in respect of the age on the basis of evidence, shall be the conclusive proof of the age as regards the juvenile. Thus, the date of birth recorded in the high school mark-sheet is conclusive in view of Rule 12(3) of 2007 Rules and Section 4 of the Indian Evidence Act. In such circumstances, no evidence can be allowed to be adduced to disprove the said date of birth by any of the parties unless it is found that the certificate or the mark-sheet is a forged document. I fully agree with the submission of the learned counsel for the revisionist that the date of birth as held by the Board or the Court as the case may on the basis of the evidence shall be deemed to be a conclusive proof of his age provided the age has been determined in accordance with the Rule 12(3). The date of birth recorded by the Board and confirmed by the Appellate Court on the basis of birth certificate from the school first attended, is a conclusive proof with regard to the date of birth of the revisionist and, therefore, no other evidence is required to be adduced to disprove it. Thus, the birth certificate given by a Corporation or Municipal Authority or the medical opinion cannot be taken into consideration if the date of birth certificate from the first school attended is available.
36. So far as the constitution of the Board is concerned, the same has neither been challenged in this revision nor the same can be looked into while deciding this revision. It is admitted that the term of the Juvenile Justice Board has been extended by a Government order and unless the said Government order is quashed by the appropriate court, the constitution of the Board or its extension cannot be examined by this Court while hearing revision. The revisionist on the one hand is relying upon the decision of the Juvenile Justice Board rendered in a subsequent criminal case and on the other hand, he has challenged the constitution of the Board in the case he has not been held to be juvenile.
37. So far as the scope of Section 49 of the Act is concerned, it has already been discussed above that the provision of Section 49 has been enacted only with a view to safeguard the interest of a juvenile, who has been declared as juvenile under this Act and in any subsequent proceedings under any other law he has been proved to be major. Section 49 protects such juvenile and provides that if a competent authority under the Act has declared a person as juvenile, his order shall not became invalid merely by any subsequent proof that the person is not a juvenile. The revisionist, who was declared juvenile in other criminal proceeding by the Board, will not affected by any subsequent proof that he is a major. Section 49 does not say that if in one proceeding of criminal case under the Act, a person has been declared juvenile, the same finding shall be followed in all other proceedings under the Act. In this view of the matter, Section 49 of the Act does not give any protection to the revisionist.
38. So far as the argument that the revisionist was not given any opportunity of hearing before the Appellate Court is concerned, a perusal of the order of the Appellate Court clearly reveals that the parties were heard in detail. The order nowhere discloses that it was passed ex-parte.
39. Another argument raised on behalf of the revisionist is that a grace of one year should be given while computing the age of the revisionist for the purpose of deciding as to whether he was juvenile or not. This argument has also no force because the grace of one year is available only in those cases, where there is medical opinion with regard to the age of the juvenile. It is clearly provided in sub-rule (3)(b) of Rule 12 that in case where exact assessment of the age cannot be done, the Court or the Board for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
40. In the present case, since the exact date of birth of the revisionist is known and is a conclusive proof, therefore, giving one year grace is not permissible, as the same is meant only in those cases, where the exact assessment of the age cannot be done.
41. For the aforesaid reasons, I am of the view that the order passed by the Juvenile Justice Board as well as by the Appellate Court, is legal, perfect and justified and has been passed according to law considering the material on record and the law on the subject and does not call for any interference by this Court.
42. In the result, the revision is dismissed.
Order Date :- 18th March, 2016 Rakesh/-