Mandeep Sharma vs State Of Punjab on 14 September, 2017

CRR No.3313 of 2015 (OM) 1

In the High Court of Punjab and Haryana at Chandigarh

CRR No.3313 of 2015 (OM)
Date of decision: September 14, 2017

Mandeep Sharma …..Petitioner

Versus

State of Punjab …….Respondents

CORAM: HON’BLE MR. JUSTICE ARVIND SINGH SANGWAN

Present: Mr. Sunny Bhardwaj, Advocate for the petitioner.

Mr.Randeep Singh Khaira,Additional Advocate General, Punjab

Mr. Vivek Salathia, Advocate for the complainant
****

ARVIND SINGH SANGWAN,J.

Petitioner has filed this petition under Section 401 of the Code

of Criminal Procedure,1973 (`Cr.P.C.’ for short) challenging the order

dated 16.5.2015 passed by the Additional Sessions Judge, Amritsar,

whereby the appeal filed by the petitioner challenging the order dated

12.11.2013 passed by the Principal Magistrate, Juvenile Justice Board,

Amritsar dismissing the claim of the petitioner to declare him a juvenile,

was also dismissed.

Brief facts of the case are that the FIR No.69 dated 1.6.2011

under Sections 302/325/323 read with Section 34 of the Indian Penal Code,

1860 (`IPC for short) was registered at Police Station Cantonment Amritsar,

District Amritsar against the petitioner and his father and co-accused-

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CRR No.3313 of 2015 (OM) 2

Lakhwinder Kumar. As per the allegations in the FIR, four brothers,

namely, Kamal Kishore, Ashok Kumar, Brij Kishore (now deceased) and

one Kirpal Singh had purchased a plot, where four shops, existed and co-

accused-Lakhwinder Kumar was in possession of one of such shop as a

tenant and ejectment application was pending against him. On 23.5.2011,

Lakhwinder Kumar and petitioner came there, abused Brij Kishore for

fixing tin sheds on the property and caused injuries to Brij Kishore. Later

on, the FIR was registered under under Sections 326/325 read with Section

34 IPC. On 27.6.2011, the dead body of Brij Kishore was found in the

bank of Canal and, thereafter, Section 302 IPC was added.

During the pendency of the case, petitioner-Mandeep

Sharma, filed an application before the Juvenile Justice Board for declaring

him as a juvenile. In the application, it was submitted that the date of birth

of Mandeep Sharma is 8.12.1993, whereas, the prosecution alleged his date

of birth as 4.11.1992. In support of his claim, petitioner produced on

record a petition filed by her mother under Section 125 Cr.P.C. against his

father on 11.8.993 in which, in para 5, she has stated that she was turned out

of her matrimonial home when she was pregnant and gave birth to a male

child in September, 1992. This child was elder brother of petitioner,

namely, Sandeep Sharma. Accordingly, it was submitted that the petitioner

was not born in the year 1992 and his date of birth is 8.12.1993. Petitioner

submitted another document i.e. his middle standard certificate to prove his

date of birth. It is also submitted in the application that the complainant

had forged the birth certificate issued by the Municipal Corporation,

Amritsar, and, in this regard, the mother of the petitioner had registered FIR

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No.1, dated 8.1.2013 under Sections 420, 465, 467, 468, 471 and 120-B

IPC.

No reply was filed by the prosecution to the application. In

evidence, petitioner examined himself as AW1 and examined Clerk of

Judicial record, namely, Arpana as AW1, who proved the summoned file

relating to the mother of the petitioner filed under Section 125 Cr.P.C.

AW2 Seema Sharma, mother of the petitioner stated that the date of birth of

his son is 8.12.1993 which is reflected in his middle standard examination

certificate issued by the Punjab School Education Board. She also deposed

that her elder son Sandeep Sharma was born in the year 1992 and produced

the matriculation certificate of his elder son Sandeep Sharma as Exhibit A2

and middle standard certificate of petitioner- Mandeep Sharma as Exhibit

A3 and closed the evidence.

On the other hand, the prosecution examined RW1 Kiran

Jolly, Record Keeper, Office of Municipal Corporation, Amritsar, who

produced the birth certificate of Mandeep Sharma as Exhibit AA and stated

that his date of birth is 4.11.1992. She also submitted an inquiry report

RW1/A held by the Registrar regarding the date of birth of petitioner.

RW2 Head Constable Kulwinder Singh produced copy of

the FIR No. 1, dated 8.1.2013 as Exhibit RW2/A and the cancellation

report as Exhibit RW2/B and closed the evidence.

The Principal Magistrate of Juvenile Justice Board, vide its

order dated 12.11.2013, dismissed the application holding that the date of

birth of the petitioner is 4.11.1992.

Petitioner challenged this order before the lower appellate

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CRR No.3313 of 2015 (OM) 4

Court and the appeal filed by the petitioner was also dismissed on

16.5.2015. The operative part of the judgment reads as under:-

“The arguments of the learned counsel for the appellant that as per

the certificate Ex.A3 of middle class examination of the

appellant, the date of birth of the appellant was 8.12.1993 and the

said certificate has to be given preference. This arguments of the

learned counsel for the appellant have not impressed me in view

of the fact that as per Rule 12 sub rule 3 of Juvenile Justice (Care

and Protection of Children) Rules, 2007, no reliance can be placed

on the certificate of middle class examination.”

It is submitted on behalf of the learned counsel for the

petitioner that the procedure to be followed for determining the age is

prescribed in Rule 12 of the Juvenile Justice (Care and Protection of

Children) Rules, 2007.

Rule 12 of the Juvenile Justice (Care and Protection of

Children) Rules, 2007 reads as under:-

“(1)In every case concerning a child or a juvenile in conflict with

law, the Court or the Board, as the case may be, the Commitee

referred to in rule 19 of these rules shall determine the age of such

juvenile of 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 conflit with law, prima facie

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CRR No.3313 of 2015 (OM) 5

on the basis of physical appearances or documents, if available,

and send him to the observation home on 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)

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shall be the conclusive proof of the age as regards such child or

the juvenile in conflict with law.”

It is submitted on behalf of the petitioner that as per rule 12

(3)(a), the matriculation or the equivalent certificate if available is to be

given preference over the date of birth certificate from the school first

attended and, in the absence whereof, preference is given to the birth

certificate issued by the Corporation or Municipal Authority.

Learned counsel for the petitioner has submitted that both the

Courts below have erred in not placing reliance on the certificate of middle

class examination. Learned counsel for the petitioner has also submitted

that, in fact, the petitioner could not produce his matriculation certificate as

the same was misplaced and now the petitioner is ready to produce the same

before the Board to prove his date of birth as 8.12.1993.

During the course of the arguments, learned counsel for the

petitioner has shown original certificate issued on 2.6.2009 by the Punjab

School Education Board showing the date of birth as 8.12.1993. It is also

submitted on behalf of the petitioner that the co-accused-Lakhwinder

Kumar, after facing the full length trial, has already been acquitted by the

trial Court vide judgment dated 5.12.2013.

Learned counsel for the petitioner in support of his

arguments has relied upon the judgment of the Apex Court in Union of

India vs. Saalim 2010(15)SCC 544 to submit that the Court shall lay

emphasis and reliance on School leaving Register which is one of the

recognised and authentic document for the purpose of determining the age

of a person.

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Learned counsel also relied upon the judgment of the

Hon’ble Superme Court in Shah Nawaz vs. State of UP and another 2011

(3)RCR(Criminal)884 stating that Rule 12 required that the age of juvenile

be determined on the basis of Matriculation Certificate and in its absence

entry of date of birth in the mark sheet is one of the valid proof .

Learned counsel has further relied upon the judgment of the

Apex Court in Jodhbir Singh vs. State of Punjab 2013(1)RCR(Criminal)

272 wherein it is held that law gives prime importance to the date of brith

certificate issued by the School first attended, the genuineness of which is

not disputed.

Learned counsel further relied upon the judgment of Apex

Court in Sri Ganesh vs. State of Tamil Nadu and another 2017(1)RCR

(Criminal) 556 wherein it is held that the Court should obtain matriculation

or equivalent certificate and only its absence may obtain birth certificate of

school first attended.

It is, thus, submitted on behalf of the petitioner that the

Courts below have wrongly ignored the middle class certificate and has also

submitted that since the date of birth given in the middle class certificate is

the same as in the matriculation certificate, which has been shown to the

Court, during the course of arguments, petitioner may be declared as

juvenile.

On the other hand, learned counsel for the complainant as

well as the learned counsel for the State has submitted that the order passed

by the authorities are in accordance with the procedure laid down under the

Act/Rule.

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Learned counsel for the complainant has relied upon

judgment of this Court in Sushil Kumar vs. State of Haryana 2013(2)

RCR(Criminal) 932 wherein, in the identical circumstances,where there was

conflict between the certificate of middle standard produced by the accused

and the other document produced by the prosecution, this Court has

remanded the case back to the Juvenile Justice Board to conduct an inquiry

and report and ordered that if found eligible, then the petitioner be tried as

per the provisions of the Juvenile Justice(Care and Protection of Children)

Act, 2007.

After hearing the learned counsel for the parties, I find that

the impugned orders passed by the Courts below are liable to be set aside.

So far as appreciation of middle standard certificate produced by the

petitioner is concerned, the same should have been given preference over

the birth certificate issued by the Municipal Corporation Amritsar in view of

the judgment Union of India vs. Saalim (supra) and, especially, in view of

the fact that the petitioner has shown the original matriculation certificate to

the Court which should be considered by the Juvenile Justice Board.

In these circumstances, it would be just and expedient to allow

this petition and remand the matter back to Juvenile Justice Board,

Amritsar for deciding the same afresh in accordance with law.

Accordingly, this petition is allowed. The impugned orders

dated 12.11.2013 and 16.5.2015 are set aside and the matter is remanded

back to the Juvenile Justice Board, Amritsar. which shall make an inquiry

and allow the petitioner to produce on record his matriculation certificate.

On conducting such inquiry, if the Board finds the petitioner to be juvenile,

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he will be tried as per the provisions of Juvnile Justice (Care and Protection

of Children) Act.

Parties are directed to appear before the Principal Magistrate,

Juvenile Justice Board on 29.9.2017 and the Board is directed to complete

the inquiry within two months from the date of receipt of copy of this order.

(ARVIND SINGH SANGWAN)
JUDGE
September 14, 2017
arya
Whether speaking/reasoned: Yes/No
Whether Reportable:Yes/No

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