advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Sunday, July 27, 2014

Juvenile Justice (Care and Protection of Children) Act, 2000 (“the J.J. Act, 2000”) - whether the appellant was ‘a juvenile’ within the meaning of the term ‘juvenile’ as defined under the Juvenile Justice (Care and Protection of Children) Act, 2000 (“the J.J. Act, 2000”) when the offence was committed and whether the plea of juvenility can be raised by him at this stage. Apex court held that Proviso to Section 7-A states that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in the J.J. Act, 2000 and the rules made thereunder even if the juvenile has ceased to be so on or before the date of commencement of the J.J. Act, 2000. = Kulai Ibrahim @ Ibrahim … Appellant Vs. State Rep. by the Inspector of Police B-1, Bazaar Police Station, Coimbatore. … Respondent = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41739

Juvenile Justice  (Care  and  Protection  of Children) Act, 2000 (“the J.J. Act, 2000”) - whether the appellant was ‘a  juvenile’  within  the  meaning  of  the  term ‘juvenile’ as defined under the Juvenile Justice  (Care  and  Protection  of Children) Act, 2000 (“the J.J. Act, 2000”) when the  offence  was  committed and whether the plea of juvenility can be raised by him at this stage. Apex court held that Proviso to Section 7-A  states  that a claim of juvenility may be  raised  before  any  court  and  it  shall  be recognized at any stage, even after final disposal of  the  case,  and  such claim shall be determined in terms of the provisions contained in  the  J.J. Act, 2000 and the rules made thereunder even if the juvenile has  ceased  to be so on or before the date of commencement of the J.J. Act, 2000. =

The case of the appellant is that  as  on  2/9/1997,  when  the
offence was committed, he was 17 years and 4 months’ old.  Section  2(k)  of
the J.J. Act, 2000 defines ‘juvenile’ as a person who has not  completed  18
years of age.  Section 2(l) defines ‘juvenile in conflict  with  law’  as  a
juvenile who is alleged to have committed an offence and has  not  completed
18 years of age as on the date of commission of such offence.=

the appellant was a juvenile  when
the offence was committed and, hence, he cannot be convicted.  =

admittedly the plea of juvenility  was  not
raised by the appellant in the trial court.   It  was  for  the  first  time
raised in the High Court while the appeal was being argued.  The High  Court
has noted in the impugned judgment that the plea of juvenility  was  neither
raised before the trial court, nor raised in the memo of appeal  before  the
High Court.  The High Court noted that no application was filed  before  the
High Court seeking permission to  adduce  evidence  to  establish  that  the
appellant was a juvenile.  The High Court, in  the  circumstances,  rejected
the plea.

whether the appellant was ‘a  juvenile’  within  the  meaning  of  the  term
‘juvenile’ as defined under the Juvenile Justice  (Care  and  Protection  of
Children) Act, 2000 (“the J.J. Act, 2000”) when the  offence  was  committed
and whether the plea of juvenility can be raised by him at this stage.
Proviso to Section 7-A  states  that
a claim of juvenility may be  raised  before  any  court  and  it  shall  be
recognized at any stage, even after final disposal of  the  case,  and  such
claim shall be determined in terms of the provisions contained in  the  J.J.
Act, 2000 and the rules made thereunder even if the juvenile has  ceased  to
be so on or before the date of commencement of the J.J. Act, 2000. =
It is a settled position in law on a  fair  consideration  of  Section
2(k), 2(l), 7-A, 20 and 49 of the J.J. Act, 2000 read with Rules 12  and  98
of the Juvenile Justice (Care and Protection of Children) Rules, 2007  (“the
said Rules”) that all persons who were below the age  of  18  years  on  the
date of commission of the offence even prior to 1/4/2001, which is the  date
of commencement of J.J. Act, 2000 could be treated as juveniles even if  the
claim of juvenility is raised after they have attained the age of  18  years
on or before date of the  commencement  of  the  J.J.  Act,  2000  which  is
1/4/2001 and were undergoing sentences upon being convicted (See  Ketankumar
Gopalbhai Tandel   v.   State  of  Gujarat[1]).   Therefore,  the  claim  of
juvenility can be raised by the appellant.

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).
Thus  in  cases  where
documents mentioned in Section 12(a)(i) to (iii) of the J.J. Act,  2000  are
unavailable or where they are found to be fabricated or manipulated,  it  is
necessary to obtain medical report for age determination of the accused.
In
this case the documents  are  available  but  they  are,  according  to  the
police,  fabricated  or  manipulated  and  therefore  as   per   the   above
observations of this Court if the fabrication is confirmed, it is  necessary
to go for medical report for age  determination  of  the  appellant.   Delay
cannot act as an impediment in seeking medical report as Section 7-A of  the
J.J. Act,  2000  gives  right  to  an  accused  to  raise  the  question  of
juvenility at any point of time even after disposal of the case.  

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41739


                                                       NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1308 OF 2014
       [Arising out of Special Leave Petition (Crl.) No.9412 of 2013]


Kulai Ibrahim @ Ibrahim                 …          Appellant

Vs.

State Rep. by the Inspector of Police
B-1, Bazaar Police Station,
Coimbatore.                        …         Respondent

                                  O R D E R


(SMT.) RANJANA PRAKASH DESAI, J.

1.    Leave granted.

2.    In this special leave petition, judgment and  order  dated  15/10/2004
passed by the Madras High Court in Criminal Appeal No.963 of 2001  is  under
challenge.

3.    The appellant along with others  was  tried  by  the  IInd  Additional
Sessions Judge, Coimbatore for offences punishable under Sections 147,  148,
149 and 302 of the Indian  Penal  Code  (“the  IPC”).   The  Sessions  Court
convicted the appellant and 2 others for offence  punishable  under  Section
148 of the IPC and sentenced them to suffer rigorous  imprisonment  for  one
year each and to pay a fine of  Rs.1,000/-  each,  in  default,  to  undergo
rigorous  imprisonment  for  one  month  each.    The  Sessions  Court  also
convicted each of them for offence punishable under Section 302 of  the  IPC
and sentenced each of them to imprisonment for life.   The  appellant  along
with the other 2 accused preferred an appeal  to  the  High  Court.  By  the
impugned judgment and order, the  High  Court  dismissed  the  said  appeal.
Being  aggrieved  by  the  dismissal  of  the  appeal,  the  appellant   has
approached this Court.

3.    In the petition, there is no challenge to the conviction and  sentence
on merits.  The only point raised is that the appellant was a juvenile  when
the offence was committed and, hence, he cannot be convicted.   However,  in
the interest of justice, we have carefully  perused  the  impugned  judgment
and the relevant record. We are of the considered opinion that the order  of
conviction and sentence is perfectly legal.

4.    We must, therefore, look into the appellant’s plea of juvenility.   At
the outset, we must mention that admittedly the plea of juvenility  was  not
raised by the appellant in the trial court.   It  was  for  the  first  time
raised in the High Court while the appeal was being argued.  The High  Court
has noted in the impugned judgment that the plea of juvenility  was  neither
raised before the trial court, nor raised in the memo of appeal  before  the
High Court.  The High Court noted that no application was filed  before  the
High Court seeking permission to  adduce  evidence  to  establish  that  the
appellant was a juvenile.  The High Court, in  the  circumstances,  rejected
the plea.
5.    The only question which now arises for consideration of this Court  is
whether the appellant was ‘a  juvenile’  within  the  meaning  of  the  term
‘juvenile’ as defined under the Juvenile Justice  (Care  and  Protection  of
Children) Act, 2000 (“the J.J. Act, 2000”) when the  offence  was  committed
and whether the plea of juvenility can be raised by him at this stage.

6.    Section 7-A  states  the  procedure  to  be  followed  when  claim  of
juvenility is raised before any court.  Proviso to Section 7-A  states  that
a claim of juvenility may be  raised  before  any  court  and  it  shall  be
recognized at any stage, even after final disposal of  the  case,  and  such
claim shall be determined in terms of the provisions contained in  the  J.J.
Act, 2000 and the rules made thereunder even if the juvenile has  ceased  to
be so on or before the date of commencement of the J.J. Act, 2000.  In  this
Court, therefore, the counsel for the appellant  has  renewed  the  plea  of
juvenility.  The case of the appellant is that  as  on  2/9/1997,  when  the
offence was committed, he was 17 years and 4 months’ old.  Section  2(k)  of
the J.J. Act, 2000 defines ‘juvenile’ as a person who has not  completed  18
years of age.  Section 2(l) defines ‘juvenile in conflict  with  law’  as  a
juvenile who is alleged to have committed an offence and has  not  completed
18 years of age as on the date of commission of such offence.

7.    It is a settled position in law on a  fair  consideration  of  Section
2(k), 2(l), 7-A, 20 and 49 of the J.J. Act, 2000 read with Rules 12  and  98
of the Juvenile Justice (Care and Protection of Children) Rules, 2007  (“the
said Rules”) that all persons who were below the age  of  18  years  on  the
date of commission of the offence even prior to 1/4/2001, which is the  date
of commencement of J.J. Act, 2000 could be treated as juveniles even if  the
claim of juvenility is raised after they have attained the age of  18  years
on or before date of the  commencement  of  the  J.J.  Act,  2000  which  is
1/4/2001 and were undergoing sentences upon being convicted (See  Ketankumar
Gopalbhai Tandel   v.   State  of  Gujarat[1]).   Therefore,  the  claim  of
juvenility can be raised by the appellant.
8.     Along  with  the  criminal  appeal,  the  appellant  has   filed   an
application praying that he may be permitted to urge additional grounds  and
bring on record additional documents.  In the application,  it  is  admitted
that in the High Court without  filing  necessary  documents,  the  plea  of
juvenility was raised and it was rejected by the High Court.  It is  further
stated that the mother of the appellant died in the year  1997.   After  the
death of his mother, his father had remarried and  left  the  appellant  and
his brother alone.  The appellant and his brother were living on their  own.
  The appellant was tried for murder in the instant case.  Since  there  was
nobody to help the appellant, no steps were taken to bring the  age  of  the
appellant to the notice of the trial court as well as the  High  Court.   It
was only during the argument before  the  High  Court  that  this  plea  was
raised.  Since the appellant was in jail, no  steps  were  taken  to  obtain
documents regarding his date of birth.  It is  further  stated  that  during
the year 2011, the appellant’s father came back to him  and  enquired  about
the case in which the appellant is convicted.  Then he took steps to  obtain
school certificate from the Good Shephered Primary School, Fort,  Coimbatore
where the appellant had studied.  It is further stated that the  appellant’s
father  was  advised  to  obtain  birth  certificate   from   the   Judicial
Magistrate, Coimbatore as per the provisions of Section 13(3) of  the  Birth
and Death Registration Act, 1969.  Accordingly, his father filed a  petition
under the said Act and  the  Judicial  Magistrate,  after   making  enquiry,
verified the date of birth of the appellant.   Vide  order  dated  1/2/2013,
the Judicial Magistrate directed the Coimbatore City  Municipal  Corporation
to register the birth of the appellant in the Birth Register  as  23/5/1980.
It appears that as directed by the Judicial Magistrate, the Coimbatore  City
Municipal Corporation has issued birth certificate to the appellant  showing
his date of birth as 23/5/1980.  Thus,  the  appellant  is  relying  on  the
school certificate issued  by  the  Good  Shephered  Primary  School,  Fort,
Coimbatore  and  the  birth  certificate  issued  by  the  Coimbatore   City
Municipal Corporation.  These documents on which the  appellant  has  placed
reliance are annexed to the affidavit and have thus come on record.
9.    Counter affidavit has been filed on behalf of  the  respondent  by  R.
Srinivasalu s/o. N. Ramachandran, presently working as Inspector of  Police,
B-12,  Ukkadam  Police  Station,  Coimbatore  City,  Tamil  Nadu.   In  this
affidavit, it is stated that the appellant, with connivance  of  his  father
Mr. Abdul Razak, conspired and obtained fake record sheet and  produced  the
same before the court and obtained ‘Birth Certificate’  showing  appellant’s
birth date as 23/5/1980 by practicing fraud to portray him  as  a  juvenile.
The gist of the affidavit is as under:

a)    When the appellant surrendered before Judicial  Magistrate,  Udumalpet
on 18/9/1997, in the Surrender Petition, he gave his age as 20 years.

b)    In the Memo of Appearance filed by the  appellant’s  counsel  at  that
stage, his age is mentioned as 20 years.

c)    In the Form of  Remand  Warrant  dated  18/9/1997  issued  by  learned
Magistrate, the appellant’s  age  is  mentioned  as  20  years  as  per  the
Descriptive Roll.  Form of Remand warrant is annexed to the affidavit.

d)    As required by the J.J. Act, 2000, the appellant has not produced  the
admission register of the school which he attended for the first time.

e)    The appellant has  produced  record  sheet  issued  by  Good  Shepherd
Primary School, Fort, Coimbatore dated 15/11/2011.  The enquiry made by  the
respondent reveals that no record sheet was ever issued by the  Head  Master
of the school and, hence, it is  a  forged  document.   The  respondent  has
verified the school admission register maintained at Good  Shepherd  Primary
School and found that no such student by name ‘A. Ibrahim s/o. Abdul  Razak’
studied in that school, at all.  The respondent had filed a  requisition  to
the Head Master to make enquiry and find out whether the record sheet  filed
by the appellant before this Court dated 15/11/2011 was issued by  the  Head
Master of that school.   The  Head  Master  gave  a  written  reply  to  the
respondent that he had  been  working  in  the  said  school  from  1/6/2010
onwards and that the said record sheet produced by  the  appellant  was  not
issued by the school.  The Head Master further stated that  the  certificate
has been signed by one Jesudas as the Head  Master  on  15/11/2011,  but  no
such person by name Jesudas  was  the  Head  Master  of  the  school  as  on
15/11/2011.  Jesudas had retired as Head Master as early as on 31/5/2010.

f)    The present Head Master of the school has  filed  complaint  at  B-12,
Ukkadam Police Station, Coimbatore City that somebody has  issued  a  forged
record sheet in favour of A. Ibrahim s/o. Abdul  Razak  purporting  to  have
been issued by the Head Master of the said school and Crime No.1722 of  2013
is registered under Sections 467, 471 and 420 of the IPC on 31/12/2013.

g)    Verification certificate dated 31/12/2013 issued by the  present  Head
Master Mr. A.  Francis  Clement  Vimal  establishes  that  he  verified  and
compared the  available  school  records  and  concluded  that  the  alleged
admission No.526 is related to S. Dinakaran s/o.  Sreedharan,  who  is  some
other student of the institution  and  certainly  not  the  appellant.   The
record sheet is, therefore, forged.   Verification  report  of  the  present
Head Master is annexed to the counter affidavit.  Copies  of  the  complaint
filed by the present Head Master, the FIR registered on  the  basis  thereof
are  also  annexed  to  the  counter  affidavit.   It  is  stated  that  the
investigation is in progress.

h)    K. Abdul Razak s/o. Late Sulaiman filed  CMP  No.57  of  2013  in  the
court of Judicial Magistrate, Coimbatore stating that he was  father  of  A.
Ibrahim, the appellant.  He prayed for  an  order  directing  the  Municipal
Corporation to register the birth of the appellant in  the  Birth  Register.
The only respondent impleaded therein  was  the  Birth  &  Death  Registrar,
Coimbatore City  Municipal  Corporation.   This  petition  was  filed  under
Section 13(3)  of  the  Birth  &  Death  Registration  Act,  1969.   Certain
documents which were not genuine were filed along with it for a  declaration
that date of birth of the appellant was  23/5/1980.   Inspector  of  Police,
Coimbatore City, ought to have been made a party to the application  and  it
should have been informed to  the  court  that  the  documents  were  to  be
submitted in the Supreme Court, but that was not done.

i)    The order passed by the Judicial Magistrate shows that it was  an  ex-
parte order.   The  Birth  &  Death  Registrar,  Coimbatore  City  Municipal
Corporation did not appear before the court.  It is  not  mentioned  whether
the  court  summons  was  served  on  the  Birth  &  Death  Registrar.   The
Magistrate’s  order  states  that  five  documents  were  produced  by   the
appellant’s side and they were marked.  These documents were not  proved  in
accordance with the procedures known to law.

j)     The  appellant  has  not   produced   matriculation   or   equivalent
certificate or date of birth certificate from the school first  attended  by
him as per Rule 12 of the said Rules.  Even though, he has produced a  birth
certificate issued by the Municipal Corporation,  it  is  evident  that  the
birth of the appellant was not entered in the birth register soon after  his
birth, but it was entered very recently by the end of 2013.  Therefore,  the
certificate issued by the Corporation does not inspire confidence.

10.    In   Abuzar  Hossain   alias  Gulam  Hossain    v.    State  of  West
Bengal[2] a three Judge Bench of this Court considered the  question  as  to
when should a claim of juvenility be recognized and sent  for  determination
when it is raised for the first time in  appeal  or  before  this  Court  or
raised in trial and appeal but not pressed and then pressed  for  the  first
time before this Court or  even  raised  for  the  first  time  after  final
disposal of the case.   After considering  the  relevant  judgments  on  the
point this Court summarized the position in law as follows:

“39.1. A claim of juvenility may be raised  at  any  stage  even  after  the
final disposal of the case. It may be raised for the first time before  this
Court as well after the final disposal of the case.  The  delay  in  raising
the claim of juvenility cannot be a ground for rejection of such claim.  The
claim of juvenility can be raised in appeal even if not pressed  before  the
trial court and can be raised for the first time before  this  Court  though
not pressed before the trial court and in the appeal court.

39.2. For making a claim with regard to  juvenility  after  conviction,  the
claimant must produce some material which may prima facie satisfy the  court
that an inquiry into the claim of juvenility is  necessary.  Initial  burden
has to be discharged by the person who claims juvenility.

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 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  voters’  list,  etc.  obtained  after
conviction would depend on the facts and circumstances of each case  and  no
hard-and-fast rule can be prescribed that they must be prima facie  accepted
or rejected. In Akbar Sheikh [Akbar Sheikh  v.   State  of  W.B.   (2009)  7
SCC 415] and Pawan  [Pawan  v.   State of Uttaranchal  (2009)  15  SCC  259]
these documents were not found prima facie credible while in Jitendra  Singh
[Jitendra Singh  v.  State of U.P. (2010) 13 SCC  523]  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 7-A and  order
an enquiry for determination of the age of the delinquent.

39.4. An affidavit of the claimant or any of the parents or a sibling  or  a
relative in support of the claim of juvenility raised for the first time  in
appeal or revision or before this Court during the pendency  of  the  matter
or after disposal of the case shall not be sufficient justifying an  enquiry
to determine the age of such person unless the  circumstances  of  the  case
are so glaring that satisfy the judicial conscience of the  court  to  order
an enquiry into determination of the age of the delinquent.

39.5. The court where the plea of juvenility is raised for  the  first  time
should always be guided by the objectives of the 2000 Act and  be  alive  to
the position that the beneficent and salutary provisions  contained  in  the
2000 Act are not defeated by the hypertechnical  approach  and  the  persons
who are entitled to get benefits of the 2000  Act  get  such  benefits.  The
courts should not be unnecessarily  influenced  by  any  general  impression
that in schools the parents/guardians understate the age of their  wards  by
one or two years for future benefits or that age  determination  by  medical
examination is not very precise.  The  matter  should  be  considered  prima
facie on the touchstone of preponderance of probability.

39.6. Claim of juvenility lacking  in  credibility  or  frivolous  claim  of
juvenility or patently absurd or inherently improbable claim  of  juvenility
must be rejected by the court at the threshold whenever raised.”

11.   In Ashwani Kumar Saxena v. State of  M.P.[3]  this  Court  dealt  with
provisions of the J.J. Act, 2000 and the said Rules.  The appellant  therein
and two others were charge-sheeted inter alia for offences punishable  under
Section 302 of the IPC.  The case was pending  before  the  Sessions  Court.
The appellant filed an application  before  the  Chief  Judicial  Magistrate
under Sections 6 and 7 of  the  J.J.  Act,  2000  claiming  that  he  was  a
juvenile on the date of the incident and, hence, the criminal court  had  no
jurisdiction to entertain the case and that it be  transferred  to  Juvenile
Justice Board.   In  support  of  his  claim,  the  appellant  produced  the
attested marksheets of the High School of the Board of  Secondary  Education
as well as Eighth standard Board  Examination.   The  widow  of  the  victim
raised an  objection.  The  appellant’s  father  was  examined,  who  placed
reliance on several  documents  like  the  appellant’s  horoscope,  transfer
certificate issued by  his  school,  etc.   The  Chief  Judicial  Magistrate
conducted  the  appellant’s  ossification  test  and  the  medical  evidence
revealed that the appellant was a major  when  the  offence  was  committed.
The Chief Judicial Magistrate placed reliance on the ossification  test  and
took the view that the appellant was a major on the date  of  incident.   An
appeal was carried to the  Sessions  Court.   The  Sessions  Court  severely
commented inter alia on the evidence of the father of the appellant, on  the
non-examination of the Pandit who had prepared the horoscope  and  dismissed
the appeal.  The High Court confirmed  the  Sessions  Court’s  order.   This
Court considered the scheme of the J.J. Act, 2000 and  the  said  Rules  and
observed as under:

“32. 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.”


12.   Though in this paragraph, this Court observed  that  the  question  of
obtaining medical opinion from a duly constituted Medical Board arises  only
if the above-mentioned documents are unavailable,  this  Court  went  on  to
further observe that only in  those  cases,  where  documents  mentioned  in
Section 12(a) (i) to (iii) of the J.J. Act, 2000 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.   Thus  in  cases  where
documents mentioned in Section 12(a)(i) to (iii) of the J.J. Act,  2000  are
unavailable or where they are found to be fabricated or manipulated,  it  is
necessary to obtain medical report for age determination of the accused.  In
this case the documents  are  available  but  they  are,  according  to  the
police,  fabricated  or  manipulated  and  therefore  as   per   the   above
observations of this Court if the fabrication is confirmed, it is  necessary
to go for medical report for age  determination  of  the  appellant.   Delay
cannot act as an impediment in seeking medical report as Section 7-A of  the
J.J. Act,  2000  gives  right  to  an  accused  to  raise  the  question  of
juvenility at any point of time even after disposal of the case.   This  has
been  confirmed  in  Ashwani  Kumar.   Moreover,   J.J.  Act,  2000   is   a
beneficient  legislation.  If two views are possible  scales  must  tilt  in
favour of the  view  that  supports  the  claim  of  juvenility.   While  we
acknowledge this position in law there is  a  disquieting  feature  of  this
case which cannot be ignored.   We  have  already  alluded  to  the  counter
affidavit of Shri R. Srinivasalu, Inspector of Police.  If  what  is  stated
in that affidavit is true then the appellant and his father  are  guilty  of
fraud of great magnitude.  A case  is  registered  against  the  appellant’s
father at the Ukkadam Police Station under Section 467, 471 and 420  of  the
IPC.  Law will take its  own  course  and  the  guilty  will  be  adequately
punished if the case is proved  against  them.   Since  the  case  is  being
investigated, we do not want to express any opinion on  this  aspect.   Till
the allegations are finally adjudicated upon  and  proved,  we  cannot  take
registration of the offence against the appellant.

13.    In  the  circumstances,  we  direct  the  police  to   complete   the
investigation in respect of case registered against the  appellant’s  father
(and the appellant, if any) within one month.  The charge-sheet, if any,  be
filed within 15 days thereafter.  After  filing  of  the  charge-sheet,  the
trial court shall dispose of the  case  within  two  months.   The  case  be
disposed of independently  and  in  accordance  with  law  as  we  have  not
expressed any final opinion on the merits of that  case.   The  trial  court
shall forward its judgment to this Court immediately.

14.    List  the  criminal  appeal  after  the  trial  court’s  judgment  is
received.
                                                       ……………………………………………..J.
                           (RANJANA PRAKASH DESAI)


                                                       ……………………………………………..J.
                                                            (MADAN B. LOKUR)
NEW DELHI,
JULY 3, 2014.
-----------------------
[1]    JT 2013 (10) SC 554
[2]    (2012) 10 SCC 489
[3]    (2012) 9 SCC 750

-----------------------
21


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.