Heard learned counsel for the revisionist and learned Additional Government Advocate for the State as well as perused the documents available on record.
The only question involves in this revision is the legality of the impugned order passed by the learned Additional Sessions Judge, Court No. 7, Faizabad in Sessions Trial No. 137 of 2009 (State Vs. Vijay Kumar) arising out of case Crime No. 6 of 2009, under Sections 376/323/504/506 IPC relating to P.S. Rudauli, District Faizabad whereby the learned Additional Sessions Judge has rejected the application filed by the accused for treating him to be juvenile is in issue. Therefore, with the consent of learned Additional Government Advocate the criminal revision is being disposed of without issuing notice to the Opposite Party No. 2 to curtail the delay in trial of the Sessions Trial pending against the accused-revisionist before the Trial Court.
This criminal revision under Section 53 of the Juvenile Justice (Care & Protection of Children) Act, 2000 (hereinafter referred to as the 'Act') has been filed by the accused-revisionist against the judgment and order dated 09.6.2009 passed by the learned Additional Sessions Judge, Court No. 7, Faizabad in Sessions Trial No. 137 of 2009 (State Vs. Vijay Kumar) arising out of case Crime No. 6 of 2009, under Sections 376/323/504/506 IPC relating to P.S. Rudauli, District Faizabad whereby the learned Additional Sessions Judge has rejected the application moved by the accused for declaring him to be juvenile.
From a perusal of the record, it appears that the accused, who is involved and detained in case Crime No. 6 of 2009, under Sections 376/323/504/506 IPC and facing trial in Sessions Trial No. 137 of 2009 (State Vs. Vijay Kumar) pending in the Court of the learned Additional Sessions Judge, Court No. 7, Faizabad, moved an application from the jail that his age was below 17 years on the date of occurrence, therefore, he be declared as juvenile and the case be transferred to the Juvenile Justice Board. The application was opposed by the complainant-opposite party no. 2 (Munshi Lal) who filed copy of the voter list in which the age of the accused was shown 21 years. The learned Additional Sessions Judge on the basis of age of the accused recorded in the voter list held that he was aged about 21 years, therefore, he could not be declared juvenile consequently he by the impugned order rejected the application moved by the accused which has given rise to the present criminal revision.
The submission of learned counsel for the revisionist is that Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 'Rules') provides procedure for determining the age of juvenile. The rule does not provide for determining the age of the accused on the basis of voter list. The learned Additional Sessions Judge was expected to make inquiry about the age of the accused in accordance with the procedure laid under Rule 12 of the Rules but he without following the procedure as laid down therein has determined the age of the accused on the basis of voter list which is illegal. Learned counsel further argued that there was no other documentary evidence on record to determine the age of the accused.
Learned counsel submits that Rule 12 of the Rules required that in case no documentary evidence i.e. school record or certificate issued by Panchayat or Municipal Authority is available to determine the age of the accused, the accused will be ordered to be examined by Medical Board and on the basis of report of the Medical Board, age of the accused will be determined. In this case, learned Additional Sessions Judge did not follow this procedure; rather he on the basis of voter list has determined the age of the accused which is not contemplated under Rule 12 of the Rules. The finding of the learned Additional Sessions Judge regarding the age of the accused is, therefore, illegal and is liable to be quashed.
Learned counsel further submits that in this case a copy of the voter list filed by the complainant to determine the age of the accused could not be relied upon as the parentage of the accused as mentioned in the charge-sheet does not tally with the parentage given in the voter list. Therefore, the voter list could not be made basis for determining the age of the accused. The finding of the learned Additional Sessions Judge is illegal on this ground too. The impugned order is, therefore, liable to be quashed and matter deserves to be remanded back to the Trial Court to decide the application of the accused in view of the Rule 12 of the Rules.
Learned Additional Government Advocate although opposed the revision and supported the impugned order but fairly accepts that the learned Additional Sessions Judge has not disposed of the application moved by the accused in accordance with Rule 12 of the Rules.
I have given thoughtful consideration to the submissions advanced by learned counsel for the revisionist and learned Additional Government Advocate as well as perused the impugned order and the materials available on record.
Section 7A of the Act provides that where an accused has raised any claim of juvenility before the Trial Court or the Court is of the opinion that the age of the accused at the time of occurrence is to be determined to ascertain as to whether he was juvenile or not it will make an inquiry. It will be desirable to mention the provision as contained under Section 7A of the Act which is being extracted below:
7A. 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 inquiry, take such evidence as may be necessary (but not as 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 orders and the sentence, if any, passed by a court shall be deemed to have no effect.
Rule 12 of the Rules prescribes the procedure for making an inquiry and determining the age of the accused as to whether he is juvenile or not. The procedure prescribed by the Rule 12 is being extracted below:
"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 of 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 7A, 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 juveniltiy ha snot 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."
From a perusal of Rule 12 of the Rules, it appears that nowhere voter list is contemplated to determine the age of the accused; rather the age of the accused can be determined on the basis of following procedure as contemplated under sub-rule (3) of Rule 12:
(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.
In this case no documentary evidence, except the voter list, was produced either party to show the actual age of the accused on the date of occurrence. The Court was, therefore, expected to direct the age of the accused be determined in accordance with Rule 12 (3) (b) of the Rules i.e. the Trial Court was expected to seek opinion about the age of the accused by duly constituted Medical Board which has not been done so in this case. The impugned order passed by the learned Additional Sessions Judge is inviolation of Rule 12 of the Rules, therefore, the impugned order is illegal and is liable to be quashed and the matter may be remanded back to decide the application of the accused afresh in accordance with the procedure laid down under sub-rule (3) of Rule 12 of the Rules mentioned hereinabove.
The revision is, therefore, allowed.
The impugned order passed by the learned Additional Sessions Judge, Court No. 7, Faizabad in Sessions Trial No. 137 of 2009 (State Vs. Vijay Kumar) rejecting the application of the accused to declare him juvenile is set-aside and the matter is remanded back to the learned Additional Sessions Judge to decide the application moved by the accused for determining his age on the date of occurrence afresh keeping in view the observations made hereinabove.
Order Date :- 30.9.2010 Santosh/-