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Court Can Determine On Physical Appearance Or On The Basis Of Matric Certificate

In the case of, Gajab Singh versus State of Haryana Hon'ble Justice Rajbir Sherawat held that:
The matriculation certificate no more enjoys the exclusive privilege the scope of Section 94 (3) of the new Juvenile Justice (Care and Protection of Children) Act which has superseded the earlier provisions laid down in the Rules. A new provision has been enacted in the Act itself Also , the court dismissed the petition of the petitioner considering himself as a juvenile.

Coram: Hob'ble Justice Rajbir Sherawat -
Present: Mr. Ankur Lal, Advocate, for the petitioner.
Mr. M.D. Sharma, AAG, Haryana.
Mr. Rituraj Singh, Advocate, for Mr. Gutam Dutt, Advocate for the complainant.

Facts:
The petitioner was involved in a case under Sections 148, 149, 307, 506, 452 IPC. To avoid full rigour of criminal law, the petitioner had filed application for declaring him as a juvenile; claiming that he was less than 18 years at the time of commission of offence and hence, he should be tried by Juvenile Justice Board. Aggrieved against the order passed by the Court of Judicial Magistrate, the petitioner preferred an appeal before the Court of Additional Sessions Judge, Faridabad. However, the lower appellate Court also dismissed the appeal and upheld the order passed by the Judicial Magistrate. Accordingly, it was ordered that the petitioner would be taken as an adult and not a juvenile. And then the petitioner approached the High Court.

Issues:
The petitioner filed the petition challenging the order passed by the Additional Sessions Judge and dismissing an appeal against the order passed by Judicial Magistrate First Class, Faridabad, whereby the application of the petitioner for declaring him as a juvenile was rejected.

Contentions by Petitioner:
  1. As per the Juvenile Justice (Care and Protection of Children) Rules, 2007 , Rule 12 prescribed the procedure to be followed for determination of age, where an accused claims to be juvenile.
     
  2. It is submitted that as per the provisions of the Rule 12, the primacy has to be given to the matriculation certificate, if available.
     
  3. The first certificate i.e. matriculation certificate itself is available, therefore, the other certificates are excluded, per se, from the consideration for the purpose of determination of age of the petitioner, and as per the date mentioned in the matriculation certificate, the petitioner is a juvenile.
     
  4. The learned counsel for the petitioner has relied upon judgments of Supreme Court rendered in Siba Bisoyi vs. State of Odisha, 2017(4) R.C.R. (Criminal) 409, Lok Nath Pandey vs. The State of Uttar Pradesh & Another and many other judgements.

Contentions by Complainant:
  1. The Juvenile Justice (Care and Protection of Children) Act, 2015 has superseded the earlier provisions laid down in the Rules. A new provision has been enacted in the Act itself.
  2. As per the provision , the matriculation certificate no more enjoys the place of primacy, while determining the age of the accused
  3. The date of birth of the petitioner is mentioned differently in all the schools.
  4. Admission record in the said third previous school does not testify the date of birth as mentioned in the matriculation certificate. Hence, both the Courts below have rightly declined the application moved by the petitioner.

Judgement by District Court:
This court relied upon the date of birth of the petitioner as mentioned in the Government Primary School While dealing with the evidence on file, the Courts below have recorded that the petitioner has claimed to be admitted in school in first class and there his date of birth was recorded.

Thereafter, the petitioner had taken admission in another School, on the basis of School Leaving Certificate issued by previous school. Therefore, it is this date which has come in the Matriculation Certificate.

However, the record, as brought on the court file, shows that the date of birth i.e. 23.07.1999, as mentioned in Gangotri Modern Senior Secondary School and Jai Bharat School, itself is based upon date of birth mentioned in Sai Senior Secondary School, where it is differently recorded as 26.08.2003.. Therefore, the Courts below have refused to believe the matriculation certificate; which carries the date of birth of the petitioner as 23.07.1999. Aggrieved against the order passed by lower appellate Court, petitioner has filed the present revision petition.

Judgement by High Court:
The court held that Both the Courts below have committed a grave illegality by not following the provisions of the above mentioned Rule, while determining the age of the petitioner. Court finds no substance in the arguments raised by the learned counsel for the petitioner. No evidence was led in that case to find out the actual age of the petitioner. Hence, the fact that the petitioner is being tried as a juvenile in another case, cannot be taken as a relevant factor for the determination of the age of the petitioner in the present case.

It is for the Court/Board to take a final call on the date of birth of the accused, in view of either of these documents or coupled with other attending circumstances, which might have come on the record of the case.Although the Juvenile Justice (Care and Protection of Children) Rules, 2007 had given a place of primacy to the matriculation certificate, over the other proofs of date of birth of the accused, however, that provision stands replaced by the Act, 2015.

A new provision governs the procedure for determination of the age of the accused now. The relevant provisions of the Act, as contained in Section 94 which talks about the presumption and determination of age. The court further stated that assessment can be done on physical appearance or even on the basis of the examination by other method like putting basic question to adjudge the age and understanding of the accused. In any case, if there is any doubt in the mind of the Court/Board, then the provision prescribes that, it is the birth certificate given by the school or the date of birth as mentioned in the matriculation certificate.

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