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Ajay Yadav vs State Of Chhattisgarh 13 … on 19 February, 2020

1

NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR

Cr.M.P. No. 2719 of 2019
Order reserved on 14/02/2020
Order delivered on 19/02/2020

Ajay Yadav, son of Mantram Yadav, aged about 19
years, resident of Mopar, P. S. Suhela,
District Baloda Bazar-Bhatapara, Chhattisgarh.
­­­­ Petitioner

Versus
State of Chhattisgarh, through Station House
Officer, Police Station Suhela, District Baloda
Bazar – Bhatapara, Chhattisgarh.

­­­­Respondent

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
For Petitioner : Mr. Satya Prakash Verma, Advocate
For State : Mr. Ravi Bhagat, Dy. G.A.
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

Hon’ble Shri Justice Sanjay K. Agrawal

C.A.V. Order

1. This petition under Section 482 of Cr.P.C. is

directed against the impugned order dated

06/12/2019 passed by learned Special Judge under

the Protection of Children from Sexual Offences

Act, 2012 (hereinafter referred as “POCSO Act,

2012”) whereby learned Special Judge has rejected

the application filed by the petitioner/accused

and declined to hold him juvenile on the relevant

date.

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2. Petitioner herein was arrested by the Police

Station, Bhatapara on 05.11.2019 for offence

punishable under Sections 363, 366, 376 of IPC and

Section 6 of POCSO Act, 2012 and he was charge­

sheeted accordingly. During the course of the

trial, petitioner filed an application that on the

relevant date, he was juvenile and therefore, he

be tried by Juvenile Justice Board in accordance

with law, and he relied upon his mark­sheet of

Class­III, a copy of school leaving certificate as

well as Aadhar Card in which his date of birth is

recorded as 15.12.2000. The application was

replied by the State Government holding that as

per Dakhil Khariz register of school, petitioner’s

date of birth is 10.10.2000, as such, the

application deserves to be rejected as he was not

juvenile on the relevant date.

3. Learned Special Judge, by its order dated

06/12/2019, rejected the application holding that

petitioner’s date of birth is 10/10/2000 as per

Dakhil Khariz register and he was not juvenile on

the relevant date. Questioning the order impugned,

this petition has been preferred by the

petitioner.

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4. Mr. Satya Prakash Verma, learned counsel for the

petitioner would submit that learned Special Judge

is absolutely unjustified in rejecting

petitioner’s application holding that he was not

juvenile on the relevant date, therefore, the

impugned order deserves to be set aside and

petitioner be sent to Juvenile Justice Board for

trying him in accordance with law.

5. Mr. Ravi Bhagat, learned State counsel would

support the impugned order.

6. I have heard learned counsel for the parties,

considered their rival submissions made

herein­above and went through the record with

utmost circumspection.

7. The Juvenile Justice (Care and Protection of

Children) Act, 2015 (for short, ‘the Act of 2015’)

came into force w.e.f. 01/01/2016 and the Juvenile

Justice (Care and Protection of Children) Act,

2000 was thereby repealed. Section 9 of the Act of

2015 provides for procedure to be followed by a

Magistrate who has not been empowered under this

Act which states as under:­

“9. Procedure to be followed by a Magistrate
who has not been empowered under this Act.–
(1) When a Magistrate, not empowered to
exercise the powers of the Board under this
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Act is of the opinion that the person
alleged to have committed the offence and
brought before him is a child, he shall,
without any delay, record such opinion and
forward the child immediately along with
the record of such proceedings to the Board
having jurisdiction.

(2) In case a person alleged to have
committed an offence claims before a court
other than a Board, that the person is a
child or was a child on the date of
commission of the offence, or if the court
itself is of the opinion that the person
was a child on the date of commission of
the offence, the said court shall make an
inquiry, take such evidence as may be
necessary (but not an affidavit) to
determine the age of such person, and shall
record a finding on the matter, stating the
age of the person as nearly as may be:

Provided that such a claim may be raised
before any court and it shall be recognised
at any stage, even after final disposal of
the case, and such a claim shall be
determined in accordance with the
provisions contained in this Act and the
rules made thereunder even if the person
has ceased to be a child on or before the
date of commencement of this Act.

(3) If the court finds that a person has
committed an offence and was a child on the
date of commission of such offence, it
shall forward the child to the Board for
passing appropriate orders and the
sentence, if any, passed by the court shall
be deemed to have no effect.

(4) In case a person under this section is
required to be kept in protective custody,
while the person’s claim of being a child
is being inquired into, such person may be
placed, in the intervening period in a
place of safety.”

8. A studied perusal of sub­section (2) of Section 9

of the Act of 2015 would show that if a person
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alleged to have committed an offence claims before

a Court other than a Board, that he is a child or

was a child on the date of commission of the

offence, or if the Court itself is of the opinion

that he was a child on the date of commission of

the offence, the said Court shall make an inquiry,

take such evidence as may be necessary (but not an

affidavit) to determine the age of that person.

Proviso to subsection (2) of Section 9 prescribes

the procedure to be followed by that Court by

providing that such a claim shall be determined in

accordance with the provisions contained in the

Act of 2015 and the rules made thereunder, even if

the person has ceased to be a child on or before

the date of commencement of the Act.

9. Section 94 (2) of the Act of 2015 provides for

presumption and determination of age by the Board

which states as under: ­

“94. Presumption and determination of
age. — (1) *** *** ***
(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
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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) *** *** ***”

10. Section 94 of the Act of 2015 requires the Court

to make enquiry regarding determination of age of

the person accused and the manner of holding

enquiry is provided in Section 94 (2). Thus, the

procedure to be followed in determination of age

under the Act of 2015 has been provided under

Section 94 (2) which is pari materia to Rule 12 of

the Juvenile Justice (Care and Protection of

Children) Rule, 2007.

11.Thus, age determination contemplated under

sub­section (2) of Section 94 of the Act of 2015

enables the Court to seek evidence and in that

course, the Court has to undertake the process of

age determination by seeking evidence by obtaining

firstly, the date of birth certificate from the
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school, or the matriculation or other equivalent

certificate from the concerned examination Board,

if available; and in absence thereof, secondly,

the birth certificate given by a corporation or a

municipal authority or a panchayat, and thirdly,

only in the absence of documents mentioned in (i)

and (ii) above, age shall be determined by an

ossification test or any other latest medical

determination test conducted on the orders of the

Committee or the Board. Time limit for conducting

age determination test has also been provided to

be within fifteen days from the date of order in

the above­stated provision.

12. Recently, the procedure prescribed in the Juvenile

Justice (Care and Protection of Children) Rules,

2007 (enacted under the JJ Act, 2000) for

determination of juvenility came to be considered

by the Supreme Court in the matter of Ashwani

Kumar Saxena v. State of Madhya Pradesh 1 wherein

Their Lordships of the Supreme Court have held

that a duty is cast on the courts/juvenile Boards

functioning under the Act to seek evidence by

obtaining the certificate mentioned in Rules 12(3)

(a)(i) to (iii) of the Rules of 2007, and observed as

1 (2012) 9 SCC 750
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under: ­

“30. Consequently, the procedure to be
followed under the JJ Act in conducting an
inquiry is the procedure laid down in that
statute itself i.e. Rule 12 of the 2007
Rules. We cannot import other procedures
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 powers
under Section 7­A of the Act. In many of
the cases, we have come across, it is seen
that the criminal courts are still having
the hangover of the procedure of trial or
inquiry under the Code as if they are
trying an offence under the penal laws
forgetting the fact that the specific
procedure has been laid down in Section 7­A
read with Rule 12.

31. We also remind all courts/Juvenile
Justice Boards and the Committees
functioning under the Act that a duty is
cast on them to seek evidence by obtaining
the certificate, etc. mentioned in Rules 12
(3) (a) (i) to (iii). The courts in such
situations act as a parens patriae because
they have a kind of guardianship over
minors who from their legal disability
stand in need of protection.”

13. In the later part of the judgment in Ashwani Kumar

Saxena (supra), Their Lordships of the Supreme

Court further held that Court or Board functioning

under the Juvenile Justice Act is not expected to

conduct such a roving enquiry and to go behind

those certificates to examine the correctness of

those documents, and observed as under: ­

“32. “Age determination inquiry”
contemplated under Section 7­A of the Act
9

read with Rule 12 of the 2007 Rules enables
the court to seek evidence and in that
process, the court can obtain the
matriculation or equivalent certificates,
if available. Only in the absence of any
matriculation or equivalent certificates,
the court needs obtain the date of birth
certificate from the school first attended
other than a play school. Only in the
absence of matriculation or equivalent
certificate or the date of birth
certificate from the school first attended,
the court need obtain the birth certificate
given by a corporation or a municipal
authority or a panchayat (not an affidavit
but certificates or documents). The
question of obtaining medical opinion from
a duly constituted Medical Board arises
only if the above mentioned documents are
unavailable. In case exact assessment of
the age cannot be done, then the court, for
reasons to be recorded, may, if considered
necessary, give the benefit to the child or
juvenile by considering his or her age on
lower side within the margin of one year.

33. Once the court, following the above
mentioned procedure, passes an order, that
order shall be the conclusive proof of the
age as regards such child or juvenile in
conflict with law. It has been made clear
in sub­rule (5) of Rule 12 that no further
inquiry shall be conducted by the court or
the Board after examining and obtaining the
certificate or any other documentary proof
after referring to sub­rule (3) of Rule 12.
Further, Section 49 of the JJ Act also
draws a presumption of the age of the
juvenility on its determination.

34. Age determination inquiry contemplated
under the JJ Act and the 2007 Rules has
nothing to do with an enquiry under other
legislations, like entry in service,
retirement, promotion, etc. There may be
situations where the entry made in the
matriculation or equivalent certificates,
date of birth certificate from the school
first attended and even the birth
certificate given by a corporation or a
municipal authority or a panchayat may not
be correct. But court, Juvenile Justice
10

Board or a committee functioning under the
JJ Act is not expected to conduct such a
roving enquiry and to go behind those
certificates to examine the correctness of
those documents, kept during the normal
course of business. Only in cases where
those documents or certificates are found
to be fabricated or manipulated, the court,
the Juvenile Justice Board or the committee
need to go for medical report for age
determination.”

14.Similarly, the principle of law laid down in

Ashwani Kumar Saxena (supra) has been reiterated

and followed by Their Lordships of the Supreme

Court in the matter of Kulai Ibrahim alias Ibrahim

v. State Rep. by the Inspector of Police B­1

Coimbatore2.

15.In the matter of Abuzar Hossain v. State of

W.B.3 , a three Judge Bench of the Supreme Court

had summarised the legal position for determining

the juvenility of an accused and held as under in

paragraph 39.3 of the judgment: (SCC pp. 509­10)

“39.3. As to what materials would prima
facie satisfy the court and/or are
sufficient for discharging the initial
burden cannot be catalogued nor can it be
laid down as to what weight should be given
to a specific piece of evidence which may
be sufficient to raise presumption of
juvenility but the documents referred to in
Rules 12(3)(a)(i) to (iii) shall definitely
be sufficient for prima facie satisfaction
of the court about the age of the
delinquent necessitating further enquiry
under Rule 12. The statement recorded under

2 2014 AIR SCW 4022
3 (2012) 10 SCC 489
11

Section 313 of the Code is too tentative
and may not by itself be sufficient
ordinarily to justify or reject the claim
of juvenility. The credibility and/or
acceptability of the documents like the
school leaving certificate or the voter’s
list, etc. obtained after conviction would
depend on the facts and circumstances of
each case and no hard­and­fast rule can be
prescribed that they must be prima facie
accepted or rejected. In Akbar Sheikh4 and
Pawan5 these documents were not found prima
facie credible while in Jitendra Sing6 the
documents viz. school leaving certificate,
marksheet and the medical report were
treated sufficient for directing an inquiry
and verification of the appellant’s age. If
such documents prima facie inspire
confidence of the court, the court may act
upon such documents for the purposes of
Section 7­A and order an enquiry for
determination of the age of the
delinquent.”

16.Recently, in the matter of Parag Bhati (Juvenile)

Through Legal Guardian­Mother­Rajni Bhati v. State

of Uttar Pradesh and another7, the question for

consideration before the Supreme Court was, when

the date of birth mentioned in the matriculation

certificate is doubtful, the ossification test can

be the last resort to prove the juvenility of the

accused and the Supreme Court noticed and relied

upon Ashwani Kumar Saxena (supra) wherein it was

held that only in cases where those documents or

certificates are found to be fabricated or

manipulated, the Court or the Board need to go for

4 Akbar Sheikh v. State of W.B., (2009) 7 SCC 415
5 Pawan v. State of Uttaranchal, (2009) 15 SCC 259
6 Jitendra Singh v. State of U. P., (2010) 13 SCC 523
7 (2016) 12 SCC 744
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medical report for age determination, and held as

under: ­

“35. The benefit of the principle of
benevolent legislation attached to the JJ
Act would thus apply to only such cases
wherein the accused is held to be a
juvenile on the basis of at least prima
facie evidence regarding his minority as
the benefit of the possibilities of two
views in regard to the age of the alleged
accused who is involved in grave and
serious offence which he committed and gave
effect to it in a well­planned manner
reflecting his maturity of mind rather than
innocence indicating that his plea of
juvenility is more in the nature of a
shield to dodge or dupe the arms of law,
cannot be allowed to come to his rescue.

36. It is settled position of law that if
the matriculation or equivalent
certificates are available and there is no
other material to prove the correctness of
date of birth, the date of birth mentioned
in the matriculation certificate has to be
treated as a conclusive proof of the date
of birth of the accused. However, if there
is any doubt or a contradictory stand is
being taken by the accused which raises a
doubt on the correctness of the date of
birth then as laid down by this Court in
Abuzar Hossain (supra), an enquiry for
determination of the age of the accused is
permissible which has been done in the
present case.”

17.Similarly, in the matter of Sri Ganesh v. State of

Tamil Nadu and another8, again the issue of

juvenility came­up before the Supreme Court in

which Their Lordships relying upon Ashwani Kumar

Saxena (supra) with approval reiterated that the

Court determining the juvenility has first to take
8 AIR 2017 SC 537
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into consideration the documents contemplated in

Rule 12 (1), (2) and (3) of the Rules of 2007 and

only in absence of those documents, the Court has

to determine the age by taking into consideration

the medical evidence only in absence of

documentary evidence, and observed as under :­

“12. In the present case the trial court
took into account the documentary evidence
as contemplated in the statutory provisions
and returned a finding that the date of
birth of the appellant was 19.10.1991.
During the course of its judgment the High
Court could not find such conclusion to be
vitiated on any ground. In the face of the
relevant documentary evidence, there could
be no medical examination to ascertain the
age of the appellant and as such the
consequential directions passed by the High
Court were completely unwarranted. Further,
if the allegations of the prosecution are
that the offence under Section 376 IPC was
committed on more than one occasion, in
order to see whether the appellant was
juvenile or not, it is enough to see if he
was juvenile on the date when the last of
such incidents had occurred. The trial
court was therefore justified in going by
the assertions made by the victim in her
cross examination and then considering
whether the appellant was juvenile on that
date or not.”

18.Reverting to facts of the case in light of

statutory provisions and the principles of law

flowing from the judgments of the Supreme Court in

above mentioned cases, it is quite vivid that as

per Dakhil Khariz register 2006­07 of Government

Primary School, Sendri the petitioner’s date of
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birth is 10/10/2000 and he was admitted in the

school on 16/06/2006 on Class­I. This document is

a statutory document in terms of Section 94(2)(i)

of the Act of 2015 being the date of birth

certificate from the school and therefore, this

statutory document will prevail over the documents

filed by the petitioner, therefore, the Special

Judge is absolutely justified in holding that the

petitioner was not juvenile on the date of alleged

offence and thereby, rightly rejected the

application which is neither perverse nor contrary

to the record, as such, I do not find any merit in

the present petition under Section 482 of the

Cr.P.C. It is made clear that this order will not

relieve the prosecution from proving the date of

birth of the petitioner in accordance with law as

the same has been disputed by the petitioner and

observation made in this order is only for the

purpose of adjudicating the dispute brought before

this Court.

19.The judgments cited by learned counsel for the

petitioner rendered by the Supreme Court in Arnit

Das v. State of Bihar9, Jitendra Ram alias Jitu v.

State of Jharkhand10 and Mukarrab and Ors. v. State

9 (2000) 5 SCC 488
10 (2006) 9 SCC 428
15

of Uttar Pradesh11 are clearly distinguishable to

the facts of the instant case and in view of the

finding recorded herein­above.

20.This petition, being devoid of merits, deserves to

be and is accordingly dismissed. No cost(s).

Sd/­
(Sanjay K. Agrawal)

Judge

Harneet

11 (2017) 2 SCC 210

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