AGE
DETERMINATION
Introduction:
The
object of the Juvenile Justice (Care and Protection of Children) Act,
2000, is to lay
down the basic principles for administering justice to a juvenile in
conflict with law
and also to make effective
provisions for his rehabilitation and social re-integration.
The idea is to reclaim
the juvenile in conflict with law or the juvenile in need of care and
protection, as a useful member of society.
In
order to attain aforementioned objective, the act envisages a scheme
which provides for soft
treatment for juveniles regardless of the gravity of the offence
alleged
to have been committed by him. For this reason, the plea of
juvenility is often sought to be used as a legal
umbrella to shield oneself from consequences of one's misdeeds.
In
this regard, the apex Court sounded a note of caution in the case of
In
Ravinder Singh Gorkhi v. State of U.P.,
[(2006) 5 SCC 584] holding that
it
would be a duty of the court of law to accord the benefit to a
juvenile, provided he is one. To
give the same benefit to a person who in fact is not a juvenile may
cause injustice to the victim. In
a recent pronouncement, the Supreme Court in the case of Om
Prakash Vs State of Rajasthan,
reported in 2012 AIR SCW 2462 has observed that the benefit of the
principle of benevolent legislation can be made applicable in favour
of only those delinquents who undoubtedly have been held to be a
juvenile which leaves no scope for speculation about the age of the
alleged accused.
Thus,
where a claim of juvenility is made it is of paramount
importance to determine the age of alleged juvenile as accurately as
possible.
Who
is a juvenile:
Rule
2 (k) and (l) defines "Juvenile" and "Juvenile in
conflict with law" as follows.
2
(k) "juvenile"
or "child"
means a person who has not completed eighteenth
year
of age;
[2] [(l) juvenile in conflict with law means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence;]
[2] [(l) juvenile in conflict with law means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence;]
So
the relevant date is the date of offence and not the date on which
the juvenile is brought before the Board or the Court.
Who
will determine the question of juvenility:
The
relevant provisions in this regard are Ss. 7, 7A and 49 of the Act,
which are reproduced herein below for ready reference.
-
not empowered to exercise the powers of a Board under this Act
-
is of the opinion that
-
a person brought before him
-
under any of the provisions of this Act (other than for the purpose
of giving evidence),
-
is a juvenile or the child,
-
he shall
-
without any delay
-
record such opinion and
-
forward the juvenile or the child and the record of the proceeding
-
to the competent authority having jurisdiction over the
proceeding.
(2) The competent authority to which the proceeding is forwarded under sub-section (1) shall hold the inquiry as if the juvenile or the child had originally been brought before it.
(2) The competent authority to which the proceeding is forwarded under sub-section (1) shall hold the inquiry as if the juvenile or the child had originally been brought before it.
(a)
a claim
of juvenility
is raised before any court or
(b)
a court
is of the opinion
that an accused person was a juvenile on the date of commission of
the offence,
(1)
the court shall make an inquiry,
(2)
take such evidence
as may be necessary (but not an affidavit) so as to determine
the age
of such person, and
(3)
shall record
a finding
whether the person is a juvenile 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 order, and the sentence if any, passed by a court shall be deemed to have no effect.
(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 order, and the sentence if any, passed by a court shall be deemed to have no effect.
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.
(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.
Aforesaid
three provisions contemplate following different situations.
(1)
Where a Magistrate is of the opinion that a person brought before him
is a juvenile, he shall forward the juvenile to the competent
authority. Whereupon, the JJB shall hold an inquiry regarding age of
the juvenile under s. 49 of the Act.
(2)
Whenever a claim of juvenility is made before any Court
or;
A
Court is of the opinion that an accused person was a juvenile on the
date of commission of the offence,
The
Court shall make an inquiry so as to determine the age of the
accused. If the person is found to be a juvenile, it shall forward
the juvenile to Board. The Board shall not hold further inquiry
regarding the age of the Juvenile.
In
this regard the Allahabad High Court has held in the case of Naseem
Vs State of U.P., 1995
All.L.J. 1473 that the
Juvenile
Court shall not hold inquiry as to the age of an accused after the
Sessions Court has recorded a finding as to the juvenility, after
inquiry and receiving evidence. However, if only an opinion is
expressed without holding inquiry on the basis of visual perception
only, the Juvenile Board shall proceed to hold an inquiry.
With
regard to the nature and scope of inquiry the Supreme Court has
observed in the case of Ashwani
Kumar Saxena v. State of M.P., (2012) 9 SCC 750,
at page 762 that -
25*.
Section 7-A, obliges the court only to make an inquiry,
not an investigation or a trial, an inquiry
not under the Code of Criminal Procedure, but under the JJ Act. The
criminal courts, Juvenile Justice Board, committees, etc. we have
noticed, proceed as if they are conducting a trial, inquiry, enquiry
or investigation as per the Code. The statute requires the court or
the Board only to make an “inquiry” and in what manner that
inquiry has to be conducted is provided in the JJ Rules. Few of the
expressions used in Section 7-A and Rule 12 are of considerable
importance and a reference to them is necessary to understand the
true scope and content of those provisions. Section 7-A has used the
expressions “court shall make an inquiry”, “take such evidence
as may be necessary” and “but not an affidavit”. The
Court or the Board can accept as evidence something more than an
affidavit i.e. the Court or the Board can accept documents,
certificates, etc. as evidence, need not be oral evidence.
R.
12. 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
(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
(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,
(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,
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 the 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 documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule(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.
(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 documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule(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.
The
Supreme Court has observed in the case of Ashwani
Kumar Saxena v. State of M.P., (2012) 9 SCC 750
in the paragraph no. 26
that -
26.
Rule 12 which has to be read along with Section 7-A has also used
certain expressions which are also to be borne in mind. Rule 12(2)
uses the expression “prima facie” and “on the basis of physical
appearance” or “documents, if available”. Rule 12(3) uses the
expression “by seeking evidence by obtaining”. These expressions
in our view re-emphasise the fact that what is contemplated in
Section 7-A and Rule 12 is only an inquiry. Further, the age
determination inquiry has to be completed and
age be determined within thirty days from the date of making the
application; which is also an indication of the manner in which the
inquiry has to be conducted and completed. The word “inquiry” has
not been defined under the JJ Act, but Section 2(y)
of the JJ Act says that all words and expressions used and not
defined in the JJ Act but defined in the Code of Criminal Procedure,
1973 (2 of 1974), shall have the meanings respectively assigned to
them in that Code.
It
has been held by the Apex Court in the case of Shah
Nawaz v. State of U.P. & Anr.,
AIR
2011 SC 3107
that:
19.
Rule 12 of the Rules categorically envisages that the medical
opinion from the medical board should be sought only when the
matriculation certificate or school certificate or any birth
certificate issued by a corporation or by any Panchayat or
municipality is not available. We are of the view that though the
Board has correctly accepted the entry relating to the date of birth
in the mark sheet and school certificate, the Additional Sessions
Judge and the High Court committed a grave error in determining the
age of the appellant ignoring the date of birth mentioned in those
documents which is illegal, erroneous and contrary to the Rules.
It
has also been held in the case of Ashwani
Kumar Saxena v. State of M.P., (2012) 9 SCC 750,
at page 763 that
“Age determination inquiry” contemplated under Section 7-A of the
Act 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 to 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 needs to 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
abovementioned 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.
In
the case of Birad Mal Singhvi v. Anand
Purohit, 1988 Supp SCC 604 it was held
that Rule 22 provides for the procedure to be followed in respect of
determination of age of a person – It indicates that the opinion of
the Medical Board is to be preferred only when a date of birth
certificate from the school first attended, is not available or
where dispute regarding genuineness of such certificate has arisen
and Juvenile Justice Board seeks the opinion of the duly constituted
Medical Board for ascertaining the age of an accused for declaring
him juvenile.
The
Stage at which plea of Juvenility may be raised:
Proviso
to S. 7A - 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 order, and the sentence if any, passed by a court shall be deemed to have no effect.
(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 order, and the sentence if any, passed by a court shall be deemed to have no effect.
Thus,
the act has a retrospective operation. Take, for example, a case
where a person was below 18 years of age on the date of commission of
offence and was finally convicted before coming into force of the
Act, he could raise plea of juvenility after coming into force of the
act, before the Court that had convicted him of such offence. If the
Court found that the person was a juvenile in terms of this act, on
the date of commission of offence, the Court was bound to forward
such juvenile to the Board for passing appropriate orders and in that
case the sentence if any, passed by forwarding Court would cease to
have effect.
20.
Special provision in respect of pending cases.- Notwithstanding
anything contained in this Act, all
proceedings in respect of a juvenile pending in any court in any area
on
the date on which this Act comes into force
in that area, shall be continued in that court as if this Act had not
been passed and if the court finds that the juvenile has committed an
offence, it shall record such finding and instead
of passing any sentence in respect of the juvenile, forward the
juvenile to the Board which shall pass orders in respect of that
juvenile in accordance with the provisions of this Act
as if it had been satisfied on inquiry under this Act that a juvenile
has committed the offence.
Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.
Explanation. In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.
Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.
Explanation. In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.
64.
Juvenile in conflict with law undergoing sentence at commencement of
this Act.- In
any area in which this Act is brought into force, the State
Government or the local authority
[1]
[shall
direct] that a
juvenile in conflict with law who is undergoing any sentence of
imprisonment
at the commencement of this Act,
shall, in lieu of undergoing such sentence, be sent to a special home
or be kept in fit institution in such manner as the State Government
or the local authority thinks fit for the remainder of the period of
the sentence; and the provisions of this Act shall apply to the
juvenile as if he had been ordered by the Board to be sent to such
special home or institution or, as the case may be, ordered to be
kept under protective care under sub-section (2) of section 16 of
this Act.
[2] [Provided that the State Government, or as the case may be the Board, may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with law undergoing a sentence of imprisonment, who has ceased to be so on or before the commencement of this Act, and pass appropriate order in the interest of such juvenile.
Explanation. In all cases where a juvenile in conflict with law is undergoing a sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility, shall be deemed to be decided in terms of clause (l) of section 2 and other provisions contained in this Act and the rules made there under, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be sent to the special home or a fit institution, as the case may be, for the remainder of the period of the sentence but such sentence shall not in any case exceed the maximum period provided in section 15 of this Act.
[2] [Provided that the State Government, or as the case may be the Board, may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with law undergoing a sentence of imprisonment, who has ceased to be so on or before the commencement of this Act, and pass appropriate order in the interest of such juvenile.
Explanation. In all cases where a juvenile in conflict with law is undergoing a sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility, shall be deemed to be decided in terms of clause (l) of section 2 and other provisions contained in this Act and the rules made there under, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be sent to the special home or a fit institution, as the case may be, for the remainder of the period of the sentence but such sentence shall not in any case exceed the maximum period provided in section 15 of this Act.
As
may be seen, proviso to section 7 A applies to the cases which were
not pending on the date of coming into force on the Act. Section 20
applies to the cases which were pending weather in trial, appellate
or revisional Court on the date of coming into force of this Act and
section 64 applies to the cases in which the juvenile was already
undergoing sentence on the date of coming into force of this Act.
* Where
school records are ambiguous, opinion of medical experts have to be
given precedence over the school records.
Since
the age of the accused could not be proved merely on the basis of the
school record as the courts below, in spite of its scrutiny could not
record a finding of fact that the accused, in fact, was a minor on
the date of the incident. Hence, in a
situation when the school record itself is not free from ambiguity
and conclusively prove the minority of the accused, medical opinion
cannot be allowed to be overlooked or treated to be of no
consequence. In this context the statement of
the medical jurist who conducted the ossification test of the accused
and opined before the court that the accused was 19 years of age is
of significance since it specifically states that the accused was not
a juvenile on the date of commission of the offence. The statement of
Dr. C.R. Agarwal, Asstt. Professor in Radiology also cannot be
overlooked since he opined that on the basis of x-ray films, the age
of the accused is above 18 years and below 20 years. Thus, in a
circumstance where the trial court itself could not arrive at a
conclusive finding regarding the age of the accused, the opinion of
the medical experts based on x-ray and ossification test will have to
be given precedence over the shaky evidence based on school records
and a plea of circumstantial inference based on a story set up by the
father of the accused which prima facie is a cock and bull story.
Om
Prakash v. State of Rajasthan & Anr.,
2012 AIR SCW 2462
The
Court not to conduct a roving inquiry into correctness of Certificate
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 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.
35. We have come across
several cases in which the trial courts have examined a large number
of witnesses on either side including the conduct of ossification
test and calling for odontology report, even in cases, where
matriculation or equivalent certificate, the date of birth
certificate from the school last or first attended, the birth
certificate given by a corporation or a municipal authority or a
panchayat are made available. We have also come across cases where
even the courts in the large number of cases express doubts over
certificates produced and carry on detailed probe which is totally
unwarranted.
Akhilesh
Yadav v. Vishwanath Chaturvedi, (2013) 2 SCC
1, at page 750 :
Applicability
of section 35 of Evidence Act to School Records
The
conditions, laid down in Section 35 of the Evidence Act for proving
an entry pertaining to the age of a student in a school admission
register, are to be considered for the purpose of determining the
relevance thereof – An entry in a school register may not be a
public document and, thus, must be proved in accordance with law.
Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604
The
same standard is required to be applied, for the purpose of Section
35 of the Evidence Act, both in civil as also in criminal
proceedings.
Ravinder
Singh Gorkhi v. State of U.P., (2006) 5 SCC 584
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