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Dhirendra Pandey Alias Dhiraj … vs The State Of Madhya Pradesh on 2 February, 2018

HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
MCRC-1073-2018
(Dhirendra Pandey @ Dhiraj Pandey @ Dhiru Pandey S/o Shri
Rohini Prasad Pandey, ………………………… Applicant
Versus
State of Madhya Pradesh……………………….. Respondent

For the applicant : Shri. Prakash Upadhyay, Advocate
For the respondent : Shri Mohit Nayak, Government Advocate

Present: Hon’ble Mr. Justice Sushil Kumar Palo
——————————————————————————————
ORDER

(02/02/2018)

This application under Section 482 of the Cr.P.C.
has been filed to invoke the extra ordinary jurisdiction of
this Court and to set aside the order dated 27.12.2017
passed by 1st Additional sessions Judge, Amar Patan,
Distt. Satna in S.T. No. 3400138/2016, whereby the
application filed by the accused/applicant for summoning
certain documents and examine the witnesses under
Section 311 of the Cr.P.C. has been disallowed.

2. Bereft of the unnecessary details the factual matrix
of the case is that the applicant/accused is facing trial for
offences under Sections 363, 366 and 376(2) of the I.P.C.
r/w Section 6 of the Protection of Children from the
Sexual Offences Act, 2012.

3. After recording of the evidence of the prosecution
and examination of accused under Section 313 of the
Cr.P.C., the prosecution moved an application for
additional evidence. Head Master of the government
Primary School, where the prosecutrix allegedly studied
was examined. Further additional examination of the
accused was conducted under Section 313 of Cr.P.C.

4. The applicant/accused then moved the present
application under Section 311 of the Cr.P.C. and sought
permission to examine. The father of the prosecutrix
states that in the B.P.L. (Below Poverty Line) card, the
age of the prosecutrix mentioned as 20 years. This B.P.L.
(Below Poverty Line) card was issued by Janpad
Karyalay, Amarpatan. Therefore, the document related to
the B.P.L. (Below Poverty Line) card be also called.
Learned trial Court after affording opportunity to both the
parties has disallowed the request. This application by a
detailed order is not maintainable for the reason that for
determining the age of minor prosecutrix provision under
Rule 12 of the Juvenile Justice (Care and Protection of
Children) Rules 2007 has been enacted, which do not
prescribe such record for consideration while determining
the age of the chiled.

5. The same order under challenge before this Court,
on the ground that Rule 12 prescribes the determination
of age of the Juvenile in-conflict of law. Though, the same
is applicable for determining the age of victim in cases,
where the victim or the prosecutrix or the complainant is
alleged to be a minor. But the provision of Rule 12
express that the matriculation or equivalent certificate,
and in absence of the same, the date of birth certificate
from the school first attended and in the absence whereof
the birth certificate issued by the corporation or a
municipal authority or a panchayat can be taken into
consideration. It is further provided that if all the 3 mode
of documents are not available them the examination by
Medical Board will be conducted for determining age of
the juvenile or child. In the present case the scollar
register of the school when the prosecutrix was admitted
in class one was considered but this entry in the school
can be challenged by the applicant/accuse on the basis of
the BPL (Below Poverty Line) card and the survey list the
entry in this school register. Therefore, the learned trial
Court erred in not allowing the application. It is also
contended that the proposed evidence is relevant and
cogent, but the same has been dismissed on the ground
that, the Rule prescribed does not allow such evidence.
Therefore, when the applicant seeks permission to allow
such evidence by recalling the witness and the documents
of BPL (Below Poverty Line) card. The Court would
consider whether the entry in the school register is true or
not, the Court may after adducing evidence may reject the
same. But at this stage, the Court ought to have allowed
the petitioner to adduce the evidence and ordered to
produce the document.

6. Learned G.A. for the State opposing the contentions
submitted that the Rule prescribed for determining the age
of the Juvenile delinquent, therefore, the order impugned
do not call for any interference.

7. The Constitution Bench of the Supreme Court in the
case of Pratap Singh Vs. State of Jharkhand and
another 2005 Volume 3 SCC 551 has laid down the
procedure for determining the Juvenility. Subsequently
this procedure has been imported as Rule 12 of the
Juvenile Justice Act (care and protection of Children)
Rules 2007.

8. The Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules 2007, prescribed for the
procedure to be followed when the claim of juvenility is
raised before any Court. In the case of Jarnail Singh Vs.
State of Haryana (213) Volume 7 SCC 263 the Hon’ble
Apex Court has propounded that Rule 12 should be basis
for determining the age, both for a child in conflict of law
and a child who is victim of crime. In the present case the
determination of age is with regard to the victim of crime.
The Juvenile Justice (Care and Protection of Children)
Rules, 2007 provided as under:-

(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; 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.

9. In this Rule, the BPL (Below Poverty Line) card
has not been made any basis for determining the age.
When the age is determined by this scolar registered of
the school, in which the prosecutrix was admitted into
class one is available, no further evidence in this regard is
felt necessary. The age entered in the B.P.L. (Below
Poverty Line) card is a tentative age and it is used for
supply of food grain to the member of the family, cannot
be taken to be an authenticated document so far as the
age is concerned.

10. Besides, when there is prescribed norms for
determining the age of the prosecutrix. The evidence with
regard to the age in the present case is not necessary for it
is not investigation or trial but inquiry as to the age of the
prosecutrix. Section 2-G of the Criminal Procedure Code
define “inquiry” is- means every inquiry other than trial,
conducted under this Court by magistrate or Court
Therefore, “inquiry” is the Act of asking information and
also consideration of some evidence may be documentary.
Therefore, the arguments advanced by the learned counsel
for the applicant that the applicant has a right to challenge
the same and applicant wants to adduce evidence in
rebutting the entry of the school record cannot be allowed,
for it is an inquiry to determine the age and not a part of
trial.

11. The expression “trial” has been generally
understood as the examination by Court of issue of fact
and laws in a case for the purpose of rendering the
judgment relating to some offences committed. Therefore,
when the Court is determining the “juvenility” the Court
is expected to conduct an inquiry under the Juvenile
Justice (Care and Protection of Children) Act 2000
following the procedure laid down under Rule 12 of 2007
Rules and not following the procedure laid down under
the Code of Criminal Procedure. When the procedure is
specifically laid down under Section 7-A Juvenile Justice
(Care and Protection of Children) Act, 2000 and Rule 12
of the 2007 Rules the same will apply in the matters and
not the inquiry or investigation as expressed in the Code
of Criminal Procedure.

12. It would be appropriate to mention here that the
procedure laid down in the statute itself i.e. Rule 12 of the
2007 Rules has to be followed, while conducting inquiry
under Section 7-A of the Juvenile Justice (Care and
Protection of Children of Children) Act, 2000. No Court
can import other procedure laid down in the Code of
Criminal Procedure or any other enactment while making
an inquiry with regard to the “juvenility” of a person.
When the claim of juvenility is raised before the Court
exercising power under Section 7-A of the Juvenile
Justice (care and protection of Children) Act 2000. As the
procedure of trial for inquiry under the Code of Criminal
Procedure is not applicable as if the Court is trying an
offence under the penal laws for getting the facts that
specific procedure has been laid down in Section 7-A of
Act 2000 read with Rule 12 of 2007 Rules.

13. Once the Court following the above mentioned
procedure passes an order that order shall be conclusive
prove of the age as regarding that child. Sub Rule 5 of
Rule 12 prescribe no further inquiry shall be conducted by
the Court or Board after examining and obtaining the
certificate or any other documentary prove suffered in sub
Rule 3 of Rule 12. Section 49 of the Juvenile Justice (care
and protection of Children) Act 2000 also draw
presumption of the age of juvenility on its determination.

14. Only in cases where those documents or certificate
are found to be fabricated or manipulated, the Court need
to go for medical report, for the age determination. But
for determining the Juvenility once the inquiry is made as
per the norms prescribed by way of Rules, there cannot
be scope for expressing doubt over the certificate
produced and carry on detail prove which is totally
unwarranted. In this regard reference can be made to the
case of Ashwani Kumar Saxena Vs. The State of M.P,
2012 Volume 9 SCC 750 paragraph 35.

15. For the reasons mentioned above this petition is
dismissed.

(SUSHIL KUMAR PALO)
JUDGE
L.R.

Digitally signed by LALIT SINGH
RANA
Date: 2018.02.06 11:25:55 +05’30’

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