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&$%' $%!( ― (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining - (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, 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.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not
been determined in accordance with the provisions contained in sub rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with lawD 4& " * !( !& !&", ?"
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(& & 9&; !'".,+!! && " "27. Section 7A, obliges the court only to make an inquiry, not an investigation or a trial, an inquiry not under the Code of Criminal Procedure, but under the J.J. Act. Criminal Courts, JJ Board, Committees etc., we have noticed, proceed as if they are conducting a trial, inquiry, enquiry or investigation as per the Code. Statute requires the Court or the Board only to make an 'inquiry' and in what manner that inquiry has to be conducted is provided in JJ Rules. Few of the expressions used in Section 7A and Rule 12 are of considerable importance and a reference to them is necessary to understand the true scope and content of those provisions. Section 7A has used the expression "court shall make an inquiry", "take such evidence as may be necessary" and "but not an affidavit". The Court or the Board can accept as evidence something more than an affidavit i.e. the Court or the Board can accept documents, certificates etc. as evidence need not be oral evidence 28.
Rule 12 which has to be read along with Section 7A has also used certain expressions which are also be borne in mind. Rule 12(2) uses the expression "prima facie" and "on the basis of physical appearance" or "documents, if available". Rule
12(3) uses the expression "by seeking evidence by obtaining". These expressions in our view re emphasize the fact that what is contemplated in Section 7A and Rule 12 is only an inquiry. Further, the age determination inquiry has to be completed and age be determined within thirty days from the date of making the application; which is also an indication of the manner in which the inquiry has to be conducted and completed. The word 'inquiry' has not been defined under the J.J. Act, but Section 2(y) of the J.J. Act says that all words and expressions used and not defined in the J.J. Act but defined in the Code of Criminal Procedure, 1973 (2 of 1974), shall have the meanings respectively assigned to them in that Code < % . ! ,&* # "
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FC" -F F3 .&F&F &*F& & " "Inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. The word "enquiry" is not defined under the Code of Criminal Procedure which is an act of asking for information and also consideration of some evidence, may be documentary.
"Investigation" as defined in section 2(h), Cr.P.C. reads as follows:
"Investigation includes all the proceedings under this code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
The expressions "trial" has not been defined in the Code of Criminal Procedure but must be understood in the light of the expressions "inquiry" or "investigation" as contained in sections 2(g) and 2(h) of the Code of Criminal Procedure." 4& " * !( !& &* (*& *&"(
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We have considered the matter including the objections raised on behalf of the State and it is our considered view that the admit card having been duly verified and authenticated by the Board itself the same can be acted upon as a safe and reasonable basis for arriving at the conclusion that the date of birth of the accused appellant is 20th November, 1981 and that he was a juvenile on the date of the occurrence i.e. 6th March, 1999.
8.
In view of our above conclusion on the sole issue raised in the case and following the ratio laid down in $ % '$%(* '"$') ' $%(*'% '% * 5 ) ) '
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The matter will now have to be remanded to the Juvenile Justice Board for consideration of the punishment that the accused appellant will have to suffer under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. The Juvenile Justice Board will take an appropriate decision in the matter within a period of two months from the date of receipt of a copy of this order. Until the Board decides the
matter as directed in terms of the present order, the accused appellant shall remain in custodyD 4& " * !( !& "
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!& !*& " "12. We may now take up the pivotal point, viz., whether or not the Board had applied the correct parameters for determining the age of the accused, who is claiming to be a juvenile on the date of occurrence. Determination of age of a delinquent, particularly in borderline cases, is rather a complex exercise. The Act as such does not lay down any fixed norms, which could be applied for determining the age of a person. Sub Section (1) of the Act provides for presumption and determination of age and reads thus:
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(1) Where it appears to a competent authority that person brought
before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.
(2) xxx xxx xxx"
13.
From a bare reading of the provision, it is clear that it merely provides that when it appears to the competent authority viz., the Board, that the person brought before it is a juvenile, The Board is obliged to make an enquiry as to the age of that person; for that purpose it shall take evidence as may be necessary and then record a finding whether the person in question is a juvenile or not. Explaining the scope and purpose of Section 32 of the Juvenile Justice Act, 1986 which is almost pari materia with Section 49 of the Act in *"' *'(' ) '
! $*'228.0.$&$%'"0, this Court had observed as under:
".....when a plea is raised on behalf of an accused that he was a "child" within the meaning of the definition of the expression under the Act, it becomes obligatory for the court, in case it entertains any doubt about the age as claimed by the accused, to hold an inquiry itself for determination of the question of age of the accused or cause an enquiry to be held and seek a report regarding
the same, if necessary, by asking the parties to lead evidence in that regard. Keeping in view the beneficial nature of the socially oriented legislation, it is an obligation of the court where such a plea is raised to examine that plea with care and it cannot fold its hands and without returning a positive finding regarding that plea, deny the benefit of the provisions to an accused. The court must hold an enquiry and return a finding regarding the age, one way or the other."
x x x x 22.
Insofar as the Board is concerned, it is evident that it has mechanically accepted the entry in Voters List as conclusive without appreciating its probative value in terms of the provisions of Section 35 of the Indian Evidence Act, 1872. Section 35 of the said Act lays down that an entry in any public or other official book, register, record, stating a fact in issue or relevant fact made by a public servant in the discharge of his official duty especially enjoined by the law of the country is itself a relevant fact.
It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law.
much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. .
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Therefore, on facts at hand, in the absence of evidence to show on what material the entry in the Voters List in the name of the accused was made, a mere production of a copy of the Voters List, though a public document, in terms of Section 35, was not sufficient to prove the age of the accused. Similarly, though a reference to the report of the Medical Board, showing the age of the accused as 17 18 years, has been made but there is no indication in the order whether the Board had summoned any of the members of the Medical Board and recorded their statement. It also appears that the physical appearance of the accused, has weighed with the Board in coming to the afore noted conclusion, which again may not be a decisive factor to determine the age of a delinquent.
Insofar as the High Court is concerned, there is no indication in its order as to in what manner Rule 22(5)(iv) has been ignored by the Board. The learned Judge seems also to have accepted the opinion of the Medical Board in terms of the said Rule as conclusive. Therefore, the afore stated ground on which the High Court has set aside the opinion of the Board and holding the accused to be a juvenile, cannot be sustained 4& " * !( !& &* & ."!& !
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The only contention raised by learned Counsel for the petitioner is that the petitioner is a juvenile; his date of birth is 21.12.1992 as described in Annexure P 1, the certificate of Middle Stand Examination issued by the Board of School education, Haryana. In view of this, learned Counsel for the petitioner contended that as per Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short the Rules), the certificate issued by the school or specifically when it is issued by a Education Board with regard to matriculation examination is admissible as per Rule 12(3)(a)(i).
Rule 12(3)(a)(i) stipulates that the matriculation or equivalent certificate, 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, shall be taken into consideration in every case concerning a child or juvenile in conflict with law, the age inquiry shall be conducted by the court or the Board or the committee by seeking evidence and obtaining the same. In the case of a juvenile, the Principal Magistrate is required to make an inquiry and submit report regarding that.
In this case, however, no inquiry was conducted by the Juvenile Justice Board, rather the Chief Judicial Magistrate declined the application by appreciating the evidence on its own record.
5.
Keeping in view the fact that the petitioner has been issued middle standard certificate by the Education Board wherein his date of birth is recorded as 21.12.1992, at that time the petitioner was studying in DAV Senior Secondary School, Sewah (Panipat), this certificate can be taken into consideration in view of Rule 12(3)(a)(i) and (ii). Learned Counsel for the State failed to rebut the sameD !! !& *& " * !%&!& ", !& !( +!+!* ",.&((*& #"'&( %!*& "*&"
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(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effectD 3 .! & !( & &!*.!
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