Hon'ble Mr. Justice Ashok Bhushan
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.283-285 OF 2019
(arising out of SLP(CRL.) No.2366-2368 of 2015)
GAURAV KUMAR @ MONU ....APPELLANT(S)
VERSUS
THE STATE OF HARYANA ....RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
Leave Granted.
2. These appeals have been filed by the appellant
challenging the Order dated 30.01.2015 passed by
the Punjab & Haryana High Court dismissing three
applications as withdrawn filed in Criminal Appeal
No. 937 of 2002. Brief facts necessary to be
noticed for deciding these appeals are: -
3. The F.I.R. dated 24.05.2000 was registered
under Section 323, 506, 148, 149, 170, 171 & 302
IPC against the appellant and other accused. The
accused including the appellant were tried by
Additional Sessions Judge, Hisar in Criminal Case
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No. 127 S.C. of 2005. The date of incident is
intervening night of 23rd/24th May, 2000, in which
incident one Sher Singh was beaten, who was taken
to the hospital and after recording of his
statement he died. The Sessions Judge vide his
judgment and order dated 12.11.2002 convicted the
appellant and one Hans Raj under Section 302 IPC
read with Section 34 IPC by Order dated 14.11.2002
and both were sentenced for life with fine of
Rs.500/-. Criminal Appeal No.937 of 2002 was filed
by the appellant against the Order of conviction
and sentence in the High Court of Punjab & Haryana.
One of the grounds taken in the appeal was that
appellant was less than 18 years of age on the date
of incident. The High Court vide Order dated
24.03.2003 while issuing notice on the application
for bail ordered that in the meanwhile a report of
the learned Sessions Judge, Hisar be called as to
whether Gaurav Kumar applicant was a Juvenile on
the date of commission of offence and on the date
of framing of charge. Learned Sessions Judge
conducted an inquiry in which oral as well as
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documentary evidence was taken from both the
parties. Before the Sessions Judge the statement of
Davender s/o Hari Singh father of appellant was
also recorded who also was cross examined. On
behalf of the appellant a certificate from the
Principal of St. Kabir School, Hisar was submitted
wherein date of birth of Gaurav was recorded as
17.08.1982. A mark sheet issued by National Open
School, New Delhi of Secondary School Examination
of Gaurav Ghatarwal was also submitted wherein date
of birth was recorded as 17.08.1982. The State
submitted Birth Certificate exhibit R-1 issued by
the Registrar (Birth & Death) (Municipal Council,
Haansi) where date of birth of son of Devender and
Indu is recorded as 17.08.1981. The District &
Sessions Judge, Hisar after considering the
materials received in the inquiry including the
oral evidence of father of the appellant held that
date of birth of the appellant is 17.08.1981,
hence, on the night intervening 23rd/24th May 2000,
the applicant-appellant Gaurav Kumar was more than
18 years of age. The report was submitted to the
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High Court. Criminal Misc. Application No.20593 of
2014 was filed by the appellant under Section 391
read with Section 482 Cr.P.C. for placing on record
the secondary/matriculation certificate of National
Open School, Government of India New Delhi dated
23.05.2000, migration certificate of National Open
School Government of India New Delhi dated
01.08.1999 and identity card of the appellant
issued by the National Open University as
additional evidence for taking the plea of
applicant-appellant being juvenile on the date of
the incident 24.05.2000. Another Criminal
Application No. 3118 of 2015 in Criminal Misc.
Application No.26949 of 2014 for placing on record
additional affidavit of the appellant and also for
placing on record true copy of Ration Card and for
exemption from filing certified copy of Annexure A10. Criminal Application No. 20593 of 2014 came for
consideration before the High Court on 30.01.2015.
The High Court noticed the report dated
08/09.05.2003 sent from District and Sessions
Judge, Hisar holding that Gaurav Kumar applicant
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was more than 18 years of age on the date of
commission of offence. The High Court took into the
consideration the birth certificate issued by
Registrar (Birth & Death), Haansi where date of
birth of appellant son of Davender and Indu was
recorded as 17.08.1981. In view of the report of
District and Sessions Judge, Learned Counsel for
the applicant-appellant submitted before the High
Court that he does not press the applications. The
applications, thus, were dismissed as withdrawn.
4. In view of Order passed in Application No.
20593 of 2014 learned counsel for applicantappellant did not press other criminal
miscellaneous applications which were also
dismissed as withdrawn by Order dated 30.01.2015.
5. These appeals have been filed by appellant
against the order dated 30.01.2015 of the High
Court by which order the applications filed by the
applicant-appellant were dismissed as withdrawn.
6. Shri Neeraj Jain, learned senior Advocate
appearing for the appellant submits that appellant
has right to raise the issue of juvenility at any
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stage, hence, even if his applications for
submitting additional evidence in support of his
case of juvenility, has been dismissed as
withdrawn, he still can raise the issue in this
Court in the present appeal. He further submits
that the certificate filed from Sant Kabir School,
Hisar was a relevant certificate which ought to
have been relied by District Judge in his report.
He submits that learned Sessions Judge erred in
relying on birth certificate in which son has been
born to Davender on 17.08.1981 has been recorded.
7. Learned Counsel for the appellant has placed
reliance on Rule 12 of Juvenile Justice (Care and
Protection of Children) Rules, 2007. He submits
that Rule 12 deals with the procedure to be
followed in determination of age. He submits that
by virtue of Rule 12(3) the date of birth
certificate from the school first attended was to
be preferred than the birth certificate given by
Corporation or Municipal Authority, or a Panchayat.
He submits that school certificate relied by
appellant was to be preferred by statutory
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provisions, hence, the report of District Judge
relying on birth certificate given by Corporation
was erroneous. In support of his submission he has
placed reliance on judgment of this Court in
2011(13) SCC 751, Shah Nawaz versus State of Uttar
Pradesh and another, and Judgment of this Court in
2012(10) SCC 489, Abuzar Hossain alias Gulam
Hossain versus State of West Bengal.
8. Learned counsel appearing for the State has
refuted the submission of the appellant and submits
that District & Sessions Judge has after due
inquiry held that appellant was not Juvenile on the
date of occurrence. He submits that no error has
been committed by District & Sessions Judge on
relying on the birth certificate issued by
Registrar (Birth & Death). He submits that the
certificates which were sought to be submitted in
the additional evidence were not pressed before the
High Court. The appellant himself having withdrawn
his applications for filing additional evidence has
virtually accepted the report of District and
Sessions Judge and cannot be allowed to challenge
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the same in this Court.
9. We have considered the submissions of learned
counsel to the parties and perused the record.
10. Even though applicant-appellant has withdrawn
his application filed in the High Court for placing
certain additional evidence to question the report
submitted by District and Sessions Judge, we
proceed to examine the submissions raised by
learned counsel for the appellant on merits. The
main thrust of the submission of learned counsel of
the appellant is based on Rule 12 of 2007 Rules.
Rule 12(3) on which reliance is placed is as
follows: -
"12. Procedure to be followed in
determination of age. -
(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
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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, 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.”
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11. This Court in Shah Nawaz case had considered
Rule 12 of 2007 Rules and has held that preference
has been given to the school certificate over the
medical report. In paragraph 26, following has been
laid down: -
"26. We are also satisfied that
Rule 12 which was brought in
pursuance of the Act describes
four categories of evidence which
have been provided in which
preference has been given to
school certificate over the
medical report.”
12. A Three-Judge Bench in Abuzar Hossain (Supra)
while considering Rule 12 laid down following: -
"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 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
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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 and Pawan these
documents were not found prima
facie credible while in Jitendra
Singh 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 appellant.”
13. In his concurring opinion Justice T.S.Thakur
while elaborating Rule 12 laid down following:-
"43.2. The second factor which
must ever remain present in the
mind of the Court is that the
claim of juvenility may at times
be made even in cases where the
accused does not have any evidence
showing his date of birth by
reference to any public document
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like the Register of Births and
Deaths maintained by the municipal
authorities, panchayats or
hospitals nor any certificate from
any school, as the accused was
never admitted to any school. Even
if admitted to a school no record
regarding such admission may at
times be available for production
in the court. Again, there may be
cases in which the accused may not
be in a position to provide a
birth certificate from the
corporation, the municipality or
the panchayat, for we know that
the registration of births and
deaths may not be maintained and
if maintained may not be regular
and accurate, and at times
truthful.
44. Rule 12(3) of the Rules makes
only three certificates relevant.
These are enumerated in sub-rules
3(a)(i) to (iii of the Rule which
reads as under:-
“(3)(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;”
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Non-production of the above
certificates or any one of them is
not, however, fataal to the claim
of juvenility, for sub-rule(3)(b)
to Rule 12 makes a provision for
determination of the question on
the basis of the medical
examination of the accused in the
“absence” of the certificates.”
14. The submission of learned counsel for the
appellant was that school certificate filed by him
with date of birth 17.08.1982 was not even
challenged, hence, on the strength of Rule 12 the
said certificate ought to have been accepted by the
learned Sessions Judge.
15. The submissions raised by learned counsel for
appellant based on Rule 12(3) of 2007 Rules could
have been considered by us in detail but we notice
that in the present case, there is no applicability
of Rule 12 of 2007 Rules. The date of occurrence in
the present case is 23/24.05.2000 on which date
Rule 2007 were not enforced. Even on the date when
learned District and Sessions Judge submitted his
report 08.05.2003 after holding inquiry, Rule 2007
was not in force. Rule 100 of 2007 Rules repealed
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the earlier Rule of Juvenile Justice (Care and
Protection of Children) Rules, 2001. Rule 100 of
2007 Rules is as follows: -
"100. Repeal. - The Juvenile
Justice (Care and Protection of
Children) Rules, 2001, notified
vide F.No.1-3/2001-SD, dated the
22nd June, 2001 in the Gazette of
India, Extraordinary, Part I,
Section 1 of the same date is
hereby repealed.”
16. Thus, the relevant Rule occupying the field in
the present case were 2001 Rules. Rule 22 of 2001
Rules dealt with “procedure to followed by a board
in the holding inquiry in the determination of
age.” Rule 22 sub-sub-Rule (5) which is relevant
for the present case is as follows: -
"22(5). In every case concerning a
juvenile or a child, the Board
shall either obtain, -
(i) a birth certificate given by a
corporation or a municipal
authority;
(ii)a date of birth certificate
from the school first
attended; or
(iii) matriculation or equivalent
certificates, if available;
and
(iv) in the absence of (i) to
(iii) above, the medical
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opinion by a duly constituted
Medical Board, subject to a
margin of one year, in
deserving cases for the
reasons to be recorded by such
Medical Board,
regarding his age; and, when
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.”
17. We are of the view that the relevant Rules
which were required to be looked into are the
Juvenile Justice (Care and Protection of Children)
Rules, 2001.
18. The High Court had no occasion to consider the
issue since the appellant has not pressed the
issue before the High Court, we are of the view
that it shall be appropriate that the High Court
be requested to consider the question of
juvenility of the appellant afresh before
proceeding to decide the appeal.
19. The interest of justice be served by setting
aside the order dated 30.01.2015 passed by the
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Punjab and Haryana High Court and remit the
question of juvenility to the High Court for
consideration. The High Court before deciding the
appeal on merit may consider the question of
juvenility on the basis of the relevant materials
on record. The documents which were sought to be
submitted before the High Court by the appellant
be also taken on record and the High Court may
reconsider the issue on the basis of materials on
record as well as the report of the Sessions Judge
which was sought by the High Court. The order
dated 30.01.2015 passed by the High Court is set
aside. The appeals are disposed of accordingly.
...............................J.
( ASHOK BHUSHAN )
...............................J.
( K.M.JOSEPH)
NEW DELHI,
FEBRUARY 15, 2019.
