Held the trial Court erred in rejecting the juvenility claim without conducting an inquiry under Section 12 of Juvenile Justice Rules 2007. The High Court set aside the order and remanded the matter for fresh determination.
The impugned order dated 05/10/2019 set aside and matter remanded to trial Court for reconsideration within 45 days.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA ON THE 3rd OF MARCH, 2022
CRIMINAL REVISION No. 5773 of 2019
Between:-
1. RAM S/O KISHORILAL KHATIK , AGED ABOUT 18 YEARS, OCCUPATION: STUDENT WARD NO. 1 KHUSHIPURA BANDA (MADHYA PRADESH)
2. VIRENDRA S/O KISHORILAL KHATIK , AGED ABOUT 35 YEARS, OCCUPATION: PRIVATE WORK R/O WARD NO.5, DEVPURA BANDA (MADHYA PRADESH)
3. ASHOKRANI W/O KISHORILAL KHATIK , AGED ABOUT 18 YEARS, OCCUPATION: HOUSE WIFE R/O WARD NO.1, KHUSHIPURA, BANDA (MADHYA PRADESH)
4. SONAM D/O KISHORILAL KHATIK , AGED ABOUT 25 YEARS, R/O WARD NO.1, KHUSHIPURA, BANDA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANIL KHARE SENIOR ADVOCATE WITH SHRI T.R KURMI, ADVOCATE) AND THE STATE OF MADHYA PRADESH THROUGH P.S. BANDA SAGAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT PANDEY, PANEL LAWYER)
This revision coming on for admission this day, the court passed the following:
ORDER
The present criminal revision has been filed for challenging the order passed by the learned trial Court dated 05/10/2019 whereby the application filed by the applicant claiming the fact that he is juvenile was rejected.
Signature Not Verified SAN
This criminal revision has been filed on the ground that the applicant is a minor. It is argued that the application for considering of bail application on the ground of Juvenility of applicant was filed before the learned trial Court which was considered by the learned trial Court vide order dated 05/10/2019, wherein the learned trial Court has rejected the application on the ground that on the date of
Digitally signed by PRARTHANA SURYAVANSHI Date: 2022.03.08 12:02:45 IST
2 commission of offence, the applicant is found to be major. It is argued that the date of birth of the victim is recorded as 02/06/2001 and she is found to be a minor by the prosecution agency. The date of birth of the present applicant as per the prosecution is 28/06/2001 i.e he is younger to the victim. The last date of commission of offence is reported to be 05/07/2019 on the basis of which the FIR was got registered. It is argued that if the provisions of POSCO Act are being leveled against the present applicant and victim is found to be a minor then how it can be said that the applicant is a major on the date of commission of offence once he is admittedly younger to the victim according to his date of birth. The provisions contained under Section 12 of Juvenile Justice Rule 2007 has not been followed. He has placed reliance upon the judgment passed by the Hon'ble Supreme Court in the case of Rishipal Singh Solanki Vs. State of U.P and others reported in 2021 SCC online SC 1079 wherein the aforesaid aspects was dealt with by the Hon'ble Supreme Court and it was held that in case there is a dispute with respect to the age of Juvenile then the procedure as contemplated under the Juvenile Justice Act and Section 12 of the aforesaid Act should be followed. No such inquiry was conducted in the present matter. Therefore, the order passed by the leaned trial Court on the application of Juvenility dated 05/10/2019 is being put to challenge before this Court by filling this Criminal Revision and is listed along with M.Cr.C No.30555/2021 for hearing today for analogous hearing.
Per contra, counsel appearing for the State has vehemently opposed the prayer stating that the there are specific allegation against the present applicant regarding commission of offence under Section 376 of IPC for which the provisions of POSCO Act are also been leveled against him. The victim is found to be a minor.
Signature Not Verified SAN
A specific question was put to him regarding the order passed by the learned trial Court on the application of Juvenility filed by the present applicant that how and what circumstances, the learned trial Court has passed the order rejecting his application holding it to be major on the date of commission of offence despite of the fact that as per the date of birth of the victim as well as the present applicant, admittedly he is younger to the victim. If the provisions of POCSO Act are being
Digitally signed by PRARTHANA SURYAVANSHI Date: 2022.03.08 12:02:45 IST
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attracted in the matter then the victim is a minor then how a person who is a minor to the victim can be held to be a major on the date of commission of offence.
T he aforesaid could not be answered by the State counsel but certain documents have been produced before this Court pointing out the fact that on earlier application which was filed seeking grant of bail, certain documents were filed which clearly demonstrate that there are manipulation in the date of birth and in the school records. But he fairly submits that the aforesaid documents were not part of the application which has been filed before the learned trial Court. Therefore, the same cannot be considered.
Heard learned counsel for both the parties and perused the record.
From the perusal of the record, it is seen that the order passed by the learned trial Court dated 05/10/2019 and considering the fact that on the date of commission of offence, the applicant was found to be a major, therefore, he cannot be considered as a minor and his application was rejected. The order passed by the leaned trial Court clearly reflects that the date of birth of the present applicant is 28/06/2001. The date of birth of victim is 02/06/2001 as per the prosecution records. Admittedly, the provisions under the POCSO Act have been attracted and registered against applicant. Meaning thereby, the victim was found to be a minor. There is no dispute with respect to the date of birth as per the prosecution records as the date of birth of the present applicant is 28/06/2001 which is reflected in the impugned order. Once victim is considered to be a minor then how a person who is born after the victim can be considered to be a major by the prosecution. The aforesaid aspects was not death with by the leaned trial Court in terms of Section 12 Juvenile Justice Rule 2007. No enquiry has been conducted in the matter. The Hon'ble Supreme Court in the case of Rishipal Singh Solanki Vs. State of U.P and others reported in 2021 SCC online SC 1079 has held as under:-
Signature Not Verified SAN Digitally signed by PRARTHANA SURYAVANSHI Date: 2022.03.08 12:02:45 IST
" 18. The JJ Act, 2015 is a sequel to the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act, 2000) which has since been repealed. Under the JJ Act, 2000, an amendment was made by Act 33 of 2006 with effect from 22.8.2006 under which section 7A of was inserted which reads as under:
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
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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 an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile 14 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 recognised 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.
19. Section 49 of the said Act reads as under:
49. Presumption and determination of age.-(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.
(2) 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 or the child, and the age recorded by the competent authority 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.
20. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the JJ Rules, 2007) prescribed the procedures for determination of age. Rule 12 reads as under;
œ12. 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
Signature Not Verified SAN Digitally signed by PRARTHANA SURYAVANSHI Date: 2022.03.08 12:02:45 IST
5 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 Ihe 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 17 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
21. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining : (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. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board 18 to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year. If a juvenile in conflict with law was found to be below 18 years, an order had to be passed declaring the status of the juvenility by the Court. The said procedure was also applicable to dispose off cases where the status of the juvenility had not been determined in accordance with the Act and the Rules made thereunder.
23. There is no corresponding Rule to determine juvenility akin to Rule 12 of the JJ Rules, 2007."
Signature Not Verified SAN
None of the provisions have been followed by the learned trial Court while determining the age of Juvenile of the applicant claiming himself to be a Juvenile. In such circumstances, the order impugned passed by the learned Additional Sessions Judge, Banda, District Sagar vide order dated 05/10/2019 is hereby set aside. The matter is remanded back for reconsideration of case on the factum of juvenility of the applicant.
The whole exercise be completed by the learned trial Court within a period
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of 45 days from the date of receipt of certified copy of this Order and should pass a fresh and well reasoned Order after following the judgment passed by the Hon'ble Supreme Court in the case of Rishipal Singh Solanki (supra). It is expected that the learned trial Court will provide opportunity of hearing to the complainant while deciding the application.
This criminal revision stands disposed of.
Let the copy of this Order be sent to the concerned trial Court for necessary compliance.
Prar
(VISHAL MISHRA)
JUDGE
Signature Not Verified SAN
Digitally signed by PRARTHANA SURYAVANSHI Date: 2022.03.08 12:02:45 IST
2 issues framed by the court
Whether the trial Court followed the mandatory procedure under Section 12 of Juvenile Justice Rules 2007 to determine the age of the accused when juvenility was claimed.
Whether the acquittal of the accused as a major violated the provisions of the Juvenile Justice Act when the victim was a minor.
Colour shows how this judgement treated each authority
Rishipal Singh Solanki Vs. State of U.P and othersRelied on¶30
2021 SCC online SC 1079 · Who else cites this
3 provisions across 2 enactments
Ram S/o Kishorilal Khatik
Virendra S/o Kishorilal Khatik
Ashokrani W/o Kishorilal Khatik
Sonam D/o Kishorilal Khatik
State of Madhya Pradesh
Vishal Mishra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
