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.
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.
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
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.
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.
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[1] JT 2013 (10) SC 554
[2] (2012) 10 SCC 489
[3] (2012) 9 SCC 750
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