A bail applicant, charged with rape and POCSO offences, claimed juvenility as a 16-year-old. The court examined evidence under the JJ Act, 2015, finding school records proved his age as 19. Bail was denied due to the grave nature of the crime and flight risk.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 17TH DAY OF NOVEMBER 2022/26TH KARTHIKA, 1944
BAIL APPL. NO. 7321 OF 2022
(CRIME NO.414 OF 2022 OF PEERUMEDU POLICE STATION, IDUKKI)
PETITIONER/ACCUSED:
SOFIKUL ISLAM AGED 16 YEARS CHENIBARI P.O, BHERIBHERI BILL, BHALUK KHOWA PARA, KALAIGAON, DARRANG, ASSAM, PIN - 784525
BY ADVS. SRI.VISHNU BABU ADV.ASWINI SHANKAR SRI.P.YADHU KUMAR SMT.SWETHA K.S.
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031
SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.11.2022, THE COURT ON 17.11.2022 PASSED THE FOLLOWING:
B.A. No.7321/22
“C.R.”
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BECHU KURIAN THOMAS, J.
-------------------------------B.A. No.7321 of 2021
Dated this the 17th day of November, 2022
ORDER
In this bail application under section 439 of the Code of Criminal Procedure, 1973, petitioner laments that he is only 16 years of age and hence he ought to be treated only as a child in conflict with law and could not have even been arrested. Petitioner claims that he should be released on bail forthwith. The contentions bring to the fore questions on the method to be adopted when the age is in dispute.
petitioner, vehemently contended that as per the Aadhaar card, petitioner's
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date of birth is 02-01-2006 and therefore, he is required to be treated only as a child in conflict with the law. It was also submitted that the date of birth certificate issued by the Department of Health Services, State of Assam, also shows his date of birth as that on the Aadhar card. Ignoring those crucial documents, the investigating officer is alleged to have arrested the petitioner on 03.06.2022, and he has been in custody since then, contended the learned counsel.
B.A. No.7321/22
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the certificate from the school specifying the date of birth. The respondent has also filed a statement producing the certificate from the school specifying the date of birth of the petitioner, which was handed over to the investigating officer by the accused himself. Annexure R1(a) is a transfer certificate issued by the school authorities specifying the date of birth of the petitioner.
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determined based on the provisions contained in the Juvenile Justice Act.
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B.A. No.7321/22
“ S.94. Presumption and Determination of Age .-(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining –
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be 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.”
if a certificate from the school is available which specifies the date of birth,
that alone can be looked into for the purpose of identifying the date of birth
of the alleged child.
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determined by reference to the birth certificate of the local authority. The decisions in Alex and Rajan (supra), therefore, have no application as they both related to incidents prior to the coming into force of the JJ Act of 2015
“ At this juncture, for completeness of the position of law, we wish to point out that, the Juvenile Justice (Care and Protection of Children) Act, 2000 has been repealed as per Section 111 of Juvenile Justice (Care and Protection of Children) Act, 2015 with effect from 01/01/2016. The corresponding provision of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 is Section 9 of Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act, 2015). The said provision contemplates that when an enquiry as to the age of a person is to be conducted, the concerned Court before which such person is produced, shall take evidence as may be necessary (but not on an affidavit) to determine the age of such person and shall record the finding on the matter. Section 94 of the JJ Act, 2015 contemplates the documents which can be relied on for determining the age of a person and the order of preference of such documents. As per the said provision, date of birth certificate from the school or matriculation certificate equivalent certificate from the concerned examination Board, in its absence, a birth certificate given by the Corporation or a Municipal Authority or a Panchayat, are the documents which can be relied on for determining the age. In the absence of any of the said documents, ossification test or any other latest age determination test can be conducted. One of the important deviations from the earlier provisions is that, it does not insist for the certificate from the school first attended, as it provides for certificate from the school or matriculation certificate by the concerned
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B.A. No.7321/22
examination board. As the application of the said provision is effective from 01/01/2016 onwards, in all matters where the date of occurrence of the crime is on or after the said date, the procedure to be followed is that contemplated under the Juvenile Justice (Care and Protection of Children) Act, 2015. In such cases, the acceptable documents and the order of preference of such documents, shall be as contemplated in the said Act.”
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certificate specifying the date of birth of the petitioner obtained from the school.
Accordingly, I dismiss this bail application.
BECHU KURIAN THOMAS JUDGE
vps
Corrigendum Dated 21.11.2022
“B.A. No.7321 of 2021” shown in the title of the order shall stand
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corrected and read as “B.A. No.7321 of 2022”.
BECHU KURIAN THOMAS JUDGE
vps
3 issues framed by the court
Whether the petitioner, claiming to be 16 years old, should be treated as a child in conflict with law under the Juvenile Justice Act, 2015 given the dispute over his age?
What is the hierarchy of documents to determine the age of an accused when there is a dispute under section 94 of the Juvenile Justice Act, 2015?
Whether the petitioner, charged with aggravated penetrative sexual assault and rape, is eligible for bail considering the gravity of the offence and risk of witness intimidation?
Colour shows how this judgement treated each authority
Hari Ram v. State of Rajasthan and AnotherReferred¶34
[(2009) 13 SCC 211] · Who else cites this
Ashwani Kumar Saxena v. State of Madhya PradeshReferred¶37
[(2012) 9 SCC 750] · Who else cites this
Jarnail Singh v. State of HaryanaExplained¶54
[(2013) 7 SCC 263] · Who else cites this
Raghavan K. v. State of KeralaDistinguished¶55
(2021 (6) KHC 553)
Alex v. State of KeralaDistinguished¶55
(2021 (4) KLT 480)
Rajan v. State of KeralaDistinguished¶55
(2021 (4) KLT 274)
Mahesh v. State of KeralaReferred¶59
(2021 (4) KLT 776)
6 provisions across 4 enactments
SOFIKUL ISLAM
STATE OF KERALA
BECHU KURIAN THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
