Veeresha S O Siddappa Koravara Vs the State of Karnataka - Citation 1232752 - Court Judgment

Judgment:

1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH R DATED THIS THE11H DAY OF MARCH, 2024 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.101356 OF2023BETWEEN: VEERESHA S/O SIDDAPPA KORAVARA AGE. 23 YEARS, OCC. COOLIE, R/O.: NEAR LAKSHMI TALKIES, KAMPLI, TQ. HOSAPETE, DIST. BALLARI – 583 132. ... PETITIONER (BY SRI R.H.ANGADI, ADVOCATE A/W SMT POOJA R SAVADATTI, ADVOCATE) AND:

1. . THE STATE OF KARNATAKA (KAMPLI POLICE STATION, BALLARI) REPRESENTED BY STATE PUBLIC PROSECUTOR THE HIGH COURT OF KARNATAKA DHARWAD BENCH, DHARWAD – 580 011. 2 . SUBHADRA W/O PARASHURAMA AGE. 52 YEARS, OCC. HOUSEHOLD WORK, 2 R/O. 10TH WARD, NEAR LAKSHMI TALKIES, KAMPLI, TQ. HOSAPETE, DIST. BALLARI – 583 132. ... RESPONDENTS (BY SRI V.S.KALASURMATH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED

ORDER

DATED1901.2017 IN JC No.25/2016, ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, BALLARI FOR THE ALLEGED OFFENCES P/U/SEC. 376, 506 OF IPC AND R/W SEC4OF POCSO ACT, 2012 (PENDING IN SPL.CASE No.25/2017, ON THE FILE OF FTSC-I BALLARI) AND CONSEQUENTLY, THE PETITONER BE TRIED BEFORE THE JJ BOARD. BY ALLOWING THIS PETITION. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR

ORDER

S, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

ORDER

The petitioner is before this Court calling in question an order dated 19-01-2017 passed by the Principal Senior Civil Judge and CJM, Ballari in J.C.No.25 of 2016 for offences punishable under Sections 376 and 506 of the IPC r/w Section 4 of the Protection of Children from Sexual Offices Act, 2012 (‘POCSO Act’ for short). 3

2. Heard Sri R.H. Angadi and Smt.Pooja R. Savadatti, learned counsel appearing for the petitioner and Sri V.S.Kalasurmath, learned High Court Government Pleader appearing for the respondent/State.

3. Facts, in brief, are as follows:- The petitioner, as averred in the petition, is an uneducated boy and has never attended the school at any point in his life. The school records of the petitioner are, therefore, not available. He gets embroiled in a crime in Crime No.116 of 2016 for offences punishable under Sections 376 and 506 of the IPC r/w Sections 4 and 6 of the POCSO Act. The Police, after investigation, file a charge sheet against the petitioner. The allegation in the charge sheet was that the victim was cleaning verandah in her house and when her grandmother did not find her, she made search in the neighbouring house where she was found with a boy who is the petitioner and the boy was found sexually assaulting the victim. At the time of the incident, both the boy and the girl were less than 15 years of age and therefore, both were minors. On noticing the 4 incident, the grandmother appears to have shouted for help and the neighbours gathered, upon which, the petitioner ran away from the scene. It is then the granddaughter, the victim discloses that she had gone to the terrace on being called and the petitioner sexually assaulted the victim forcibly after calling her to the terrace. These were the broad contours of the charge sheet that was filed against the petitioner by the jurisdictional Police.

4. Since the petitioner did not possess any school records in proof of his date of birth for trying him as an adult or a juvenile, ossification test was done and the ossification test revealed that the petitioner could be between 16 to 18 years of age. Thereafter the Juvenile Justice Board sent the petitioner before the Court for trial. The trial is in progress. At that point in time, the petitioner has filed the subject writ petition on the ground that the act of the Board in sending the petitioner to child Court and not trying him as a juvenile is contrary to Section 25 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘the Act’ for short) and is seeking quashment of entire proceedings, which according to the learned counsel for the petitioner is wholly without jurisdiction. 5

5. The learned counsel Sri R.H. Angadi and Smt.Pooja R. Savadatti appearing for the petitioner would contend that cognizance of the offence is taken twice and at no point in time, the petitioner was subjected to proceedings under the Juvenile Justice Act as no order is passed under Section 21 of the Act. They would lay emphasis upon the report submitted by the Doctor who conducted ossification test to contend that, if the ossification test depict that the petitioner was between 16 and 18 years of age at the time of commission of the alleged act, his age ought to have been taken note of and the benefit of such age should have been rendered in favour of the petitioner under Section 14 or 36 of the Act. It is the submission of the learned counsel that two years should have been excluded to try the petitioner as juvenile from the age determined in the ossification test. They would seek to place reliance on several judgments rendered by the Apex Court in this regard, which would all bear consideration qua the reliefs in the course of the order. 6

6. Per-contra, the learned High Court Government Pleader appearing for the 1st respondent would vehemently refute the submissions to contend that the petitioner is appropriately tried and the trial is on. The challenge to an order of taking cognizance in the year 2017 is for the first time made in the year 2023. There is gross delay in approaching this Court. On merits of the matter also, the learned High Court Government Pleader would contend that the offences are grave. The petitioner has indulged in forcible sexual intercourse with a minor. The charge sheet is filed by the Police on 29-08-2016 itself clearly narrating the offence. Therefore, this is not a case where interference should be made at this stage of the proceedings, as today, the petitioner who claims to have been 16 or 18 years in 2016, is 25 years of age. He seeks dismissal of the petition.

7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance whereof, the only issue that falls for consideration is:

7. “Whether the petitioner is appropriately tried before the appropriate Court?.

8. The afore-narrated facts are not in dispute and as such they do not require any reiteration. The incident that triggers registration of crime is the one that happens on 11-07-2016 when the grandmother of the victim does not find the victim in her house and found the victim on the terrace of the petitioner’s house having sexual intercourse with the petitioner. The allegation is that when the petitioner noticed the grandmother of the victim and the grandmother shouts for help, the petitioner runs away from the scene. At that point in time, it is narrated the pant and the underwear of the petitioner was down and was having no clothes in the lower part of the body. The Petitioner was taken into custody. The Police, after investigation, filed a charge sheet. Column No.17 of the charge sheet, which depicts summary of the charges against the petitioner reads as follows: “17. PÉÃ¹£À ¸ÀAQë¥ÀÛ ¸ÁgÁA±À: ¤ªÉÃzÀ£É:- 8 ¢£ÁAPÀ 11.07.2016 gÀAzÀÄ ¸ÀAeÉ 05-30 UÀAmÉAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è F zÉÆÃµÁgÉÆÃ¥ÀuÉ ¥ÀvÀæzÀ PÁ®A-12 gÀ°è £ÀªÀÄÆ¢¹gÀÄªÀ PÁ£ÀÆ¤£À ¸ÀAWÀµÀðPÉÆÌ¼ÀUÁzÀ ¨Á®PÀ£ÁzÀ «ÃgÉÃ±À vÀAzÉ PÉÆgÀZÀgÀ ¹zÀÝ¥Àà FvÀ£ÀÄ zÉÆÃµÁgÉÆÃ¥ÀuÉ ¥ÀvÀæzÀ PÁ®A-14 gÀ°è £ÀªÀÄÆ¢¹zÀ ¸ÁQë-01 gÀªÀgÀ ªÉÆªÀÄäUÀ¼ÁzÀ C¥Áæ¥ÀÛ ªÀAiÀÄ¹ì£À ¨Á®Q ¸ÁQë-02 gÀªÀgÀ£ÀÄß ¸ÁQë-18 gÀªÀjUÉ ¸ÀA§A¢¹zÀ ªÀÄ£ÉAiÀÄ ªÀiÁ½UÉ ªÉÄÃ¯É PÀgÉzÁUÀ ¸ÁQë-02 gÀªÀgÀÄ K£ÀÄ CAvÀ ¸ÁQë-19 gÀªÀjUÉ ¸ÀA§A¢¹zÀ ªÀÄ£ÉAiÀÄ ªÀiÁ½UÉAiÀÄ ªÉÄÃ¯É ªÉÄÃ®ÌAqÀ PÁ£ÀÆ¤£À ¸ÀAWÀµÀðPÉÆÌ¼ÀUÁzÀ ¨Á®PÀ£À ºÀwÛgÀ ºÉÆÃzÁUÀ MªÉÄä¯É ¸ÁQë-02 gÀªÀgÀ£ÀÄß ©VAiÀiÁV »rzÀÄ PÉ¼ÀPÉÌ PÉqÀ« £ÉÊnAiÀÄ£ÀÄß ªÉÄÃ¯É JwÛ ¸ÀzÀj PÁ£ÀÆ¤£À ¸ÀAWÀµÀðPÉÆÌ¼ÀUÁzÀ ¨Á®PÀ£ÀÄ vÀ£Àß ¥ÁåAmï ªÀÄvÀÄÛ ZÀrØAiÀÄ£ÀÄß ©aÑzÁUÀ ¸ÁQë-02 gÀªÀgÀÄ UÁ§jAiÀiÁV CgÀaPÉÆ¼Àî®Ä ºÉÆÃzÁUÀ PÁ£ÀÆ¤£À ¸ÀAWÀµÀðPÉÆÌ¼ÀUÁzÀ ¨Á®PÀ£ÀÄ vÀ£Àß PÉÊUÀ½AzÀ ¸ÁQë-02 gÀªÀgÀ ¨Á¬Ä ªÀÄÄaÑ CgÀZÁrzÀgÉ PÀÄwÛUÉ »¸ÀÄQ ¸Á¬Ä¹©qÀÄvÉÛÃ£É JAzÄÀ ¨ÉzÀjPÉ ºÁQ ¸ÀA¨ÉÆÃUÀ ªÀiÁrgÀÄvÁÛ£É. DzÀÄzÀjAzÀ C¥Áæ¥ÀÛ ªÀAiÀÄ¹ì£À ¨Á®Q ¸ÁQë-02 gÀªÀjUÉ ¸ÀA¨ÉÆs ÃUÀ ªÀiÁrgÀÄªÅÀzÄÀ ¸ÀzÀj ¥ÀæPÀgÀtzÀ°è£À ¸ÁQëzÁgÀgÀ ºÉÃ½PÉUÀ½AzÀ®Æ, CvÁåZÁgÀPÉÆÌ¼ÀUÁzÀ C¥Áæ¥ÀÛ ªÀAiÀÄ¹ì£À ¨Á®Q ¸ÁQë-02 gÀªÀgÀ ºÉÃ½PÉ¬ÄAzÀ®Æ ºÁUÀÆ vÀ¤SÉ¬ÄAzÀ®Æ PÁ£ÀÆ¤£À ¸ÀAWÀµÀðPÉÆÌ¼ÀUÁzÀ ¨Á®PÀ£À ªÉÄÃ¯É DgÉÆÃ¥ÀªÀÅ zÀÈsqÀ¥ÀnÖzÀÝjAzÀ ¸ÀzÀj PÁ£ÀÆ¤£À ¸ÀAWÀµÀðPÉÆÌ¼ÀUÁzÀ ¨Á®PÀ£À «gÀÄzÀÝ PÀ®A376 506 L.¦.¹ ªÀÄvÀÄÛ PÀ®A4¥ÉÆÃPÉÆìÃ PÁAiÉÄÝ-2012 CrAiÄÀ°è zÉÆÃµÁgÉÆÃ¥ÀuÉ ¥ÀvÀæªÀ£ÀÄß vÀAiÀiÁj¹ ªÀiÁ£Àå WÀ£À £ÁåAiÀiÁ®zÀ°è ¤ªÉÃ¢¹PÉÆArgÀÄvÀÛzÉ.” During the process of investigation, the age of the petitioner is sought to be determined, as admittedly he was not of 18 years when the incident had occurred. Therefore, the medico legal examination was conducted both on the victim and the petitioner. As observed hereinabove, the petitioner did not go to school and he had no education. Therefore, there were no school records for the purpose of determination of age of the petitioner. The prosecution then conducts an ossification test on the petitioner. On the ossification test, the concerned Court passes the following order: “CIL, is present. His father guardian is present. 9 As per Section 18 of JJ Act, the case has to be transferred to child Court which is the Principal District & Sessions Judge, Ballari so far as the Ballari District is concerned. Admittedly, the offence alleged are punishable under Section 376 and 506 of IPC as well as Section 4 of POCSO Act. Admittedly the special Court for Ballari District Jurisdiction with regard to trial of POCSO Act is the Hon’ble 1st ADJ, Ballari. Therefore, heard both the sides with regard to transferring of case to either of the above court and it appeared as rightly submitted by the both the sides since the offences alleged include Section 4 of POCSO Act for which a special court is established, the Court to which this case needs to be transferred is the Hon’ble 1st ADJ, Ballari. The counsel for CIL files the affidavit of the father guardian undertaking to produce the CIL before the Hon’ble Transferry Court/Hon’ble 1st ADJ, Ballari. Therefore, office is directed to take bond of the father guardian of the CIL of Rs.10,000/- and to transfer the case to the Hon’ble 1st ADJ, Ballari forthwith. The CIL is directed to appear before the Hon’ble Court on receipt of court process from the said Hon’ble Court.” After the aforesaid order which directed the petitioner to be tried by a child Court, the trial commences. But, the petitioner was not tried as a juvenile. The proceedings have gone on since then as evidenced by the order sheet appended to the petition. The proceedings are at the stage of arguments which could be gathered from an order dated 05-04-2023. It is after the said order, the petitioner has preferred the subject petition. 10

9. Before embarking upon consideration of the case of the petitioner on the strength of what is submitted, I deem it appropriate to notice the statute i.e., Juvenile Justice (Care and Protection of Children) Act, 2015. Relevant sections of the Act read as follows: “9. Procedure to be followed by a Magistrate who has not been empowered under this Act.—(1) When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction. (2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be: Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act. (3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect. 11 (4) In case a person under this section is required to be kept in protective custody, while the person's claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety. … … … 14. Inquiry by Board regarding child in conflict with law.—(1) Where a child alleged to be in conflict with law is produced before Board, the Board shall hold an inquiry in accordance with the provisions of this Act and may pass such orders in relation to such child as it deems fit under Sections 17 and 18 of this Act. (2) The inquiry under this section shall be completed within a period of four months from the date of first production of the child before the Board, unless the period is extended, for a maximum period of two more months by the Board, having regard to the circumstances of the case and after recording the reasons in writing for such extension. (3) A preliminary assessment in case of heinous offences under Section 15 shall be disposed of by the Board within a period of three months from the date of first production of the child before the Board. (4) If inquiry by the Board under sub-section (2) for petty offences remains inconclusive even after the extended period, the proceedings shall stand terminated: Provided that for serious or heinous offences, in case the Board requires further extension of time for completion of inquiry, the same shall be granted by the Chief Judicial Magistrate or, as the case may be, the Chief Metropolitan Magistrate, for reasons to be recorded in writing. (5) The Board shall take the following steps to ensure fair and speedy inquiry, namely— (a) at the time of initiating the inquiry, the Board shall satisfy itself that the child in conflict with law has not been subjected to any ill-treatment by the police or by any other person, including a lawyer or probation officer and take corrective steps in case of such ill-treatment; 12 (b) in all cases under the Act, the proceedings shall be conducted in simple manner as possible and care shall be taken to ensure that the child, against whom the proceedings have been instituted, is given child-friendly atmosphere during the proceedings; (c) every child brought before the Board shall be given the opportunity of being heard and participate in the inquiry; (d) cases of petty offences, shall be disposed of by the Board through summary proceedings, as per the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974); (e) inquiry of serious offences shall be disposed of by the Board, by following the procedure, for trial in summons cases under the Code of Criminal Procedure, 1973 (2 of 1974); (f) inquiry of heinous offences,— (i) for child below the age of sixteen years as on the date of commission of an offence shall be disposed of by the Board under clause (e); (ii) for child above the age of sixteen years as on the date of commission of an offence shall be dealt with in the manner prescribed under Section 15. … … … 18. Orders regarding child found to be in conflict with law.—(1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, 18[or a child above the age of sixteen years has committed a heinous offence and the Board has, after preliminary assessment under Section 15, disposed of the matter]. then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit,— 13 (a) allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian; (b) direct the child to participate in group counselling and similar activities; (c) order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board; (d) order the child or parents or the guardian of the child to pay fine: Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated; (e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and child's well-being for any period not exceeding three years; (f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and child's well-being for any period not exceeding three years; (g) direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy, and psychiatric support during the period of stay in the special home: Provided that if the conduct and behaviour of the child has been such that, it would not be in the child's interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety. (2) If an order is passed under clauses (a) to (g) of sub- section (1), the Board may, in addition pass orders to— (i) attend school; or 14 (ii) attend a vocational training centre; or (iii) attend a therapeutic centre; or (iv) prohibit the child from visiting, frequenting or appearing at a specified place; or (v) undergo a de-addiction programme. (3) Where the Board after preliminary assessment under Section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences. … … … 34. Penalty for non-reporting.—Any person who has committed an offence under Section 33 shall be liable to imprisonment up to six months or fine of ten thousand rupees or both.

35. Surrender of children.—(1) A parent or guardian, who for physical, emotional and social factors beyond their control, wishes to surrender a child, shall produce the child before the Committee. (2) If, after prescribed process of inquiry and counselling, the Committee is satisfied, a surrender deed shall be executed by the parent or guardian, as the case may be, before the Committee. (3) The parents or guardian who surrendered the child, shall be given two months time to reconsider their decision and in the intervening period the Committee shall either allow, after due inquiry, the child to be with the parents or guardian under supervision, or place the child in a Specialised Adoption Agency, if he or she is below six years of age, or a children's home if he is above six years.

36. Inquiry.—(1) On production of a child or receipt of a report under Section 31, the Committee shall hold an inquiry in such manner as may be prescribed and the Committee, on its own or on the report from any person or agency as specified in sub-section (2) of Section 31, may pass an order to send the child to the children's home or shelter home or a fit facility or fit person, and for speedy social investigation by a social worker or Child Welfare Officer or Child Welfare Police Officer:

15. Provided that all children below six years of age, who are orphan, surrendered or appear to be abandoned shall be placed in a Specialised Adoption Agency, where available. (2) The social investigation shall be completed within fifteen days so as to enable the Committee to pass final order within four months of first production of the child: Provided that for orphan, abandoned or surrendered children, the time for completion of inquiry shall be as specified in Section 38. (3) After the completion of the inquiry, if Committee is of the opinion that the said child has no family or ostensible support or is in continued need of care and protection, it may send the child to a Specialised Adoption Agency if the child is below six years of age, children's home or to a fit facility or person or foster family, till suitable means of rehabilitation are found for the child, as may be prescribed, or till the child attains the age of eighteen years: Provided that the situation of the child placed in a children's home or with a fit facility or person or a foster family, shall be reviewed by the Committee, as may be prescribed. (4) The Committee shall submit a quarterly report on the nature of disposal of cases and pendency of cases to the District Magistrate in the manner as may be prescribed, for review of pendency of cases. (5) After review under sub-section (4), the District Magistrate shall direct the Committee to take necessary remedial measures to address the pendency, if necessary and send a report of such reviews to the State Government, who may cause the constitution of additional Committees, if required: Provided that if the pendency of cases continues to be unaddressed by the Committee even after three months of receiving such directions, the State Government shall terminate the said Committee and shall constitute a new Committee. 16 (6) In anticipation of termination of the Committee and in order that no time is lost in constituting a new Committee, the State Government shall maintain a standing panel of eligible persons to be appointed as members of the Committee. (7) In case of any delay in the constitution of a new Committee under sub-section (5), the Child Welfare Committee of a nearby district shall assume responsibility in the intervening period.” (Emphasis supplied) Section 9 deals with the procedure to be followed by the Magistrate who has not been empowered to conduct proceedings under the Act. Where the Magistrate is not empowered to exercise the powers of Juvenile Justice Board, if he is of the opinion that the person alleged to have committed the offence brought before him was a child, he shall immediately refer the child to the Board having jurisdiction.

10. Admittedly, the petitioner who was brought before him was a child. Therefore, the learned Magistrate ought to have restrained himself and exercised jurisdiction to refer the matter to the Juvenile Justice Board. Section 14 deals with inquiry by the Board regarding child in conflict with law. Section 14 mandates that where a child in conflict with law is brought, the Board should hold 17 an inquiry and pass orders under Sections 17 and 18 of the Act. In the case of heinous offences, the Board is given appropriate time to deal with the matter other than normal offence. Section 18 deals with the order to be passed by the Board regarding the child if found in conflict with law. Section 34 comes under Chapter VI which deals with procedure in relation to the children in need of care and protection. Section 36 deals with inquiry by the Juvenile Justice Committee and to report with regard to the age of the child in conflict. It is the aforesaid provisions that fall for consideration in the case at hand. A deeper delving into the matter would not require, as the Apex Court, from time to time, has interpreted the very provisions that have now fallen for interpretation.

11. The Apex Court in the case of RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH1 holds that the plea of juvenility can be raised at any time. The Apex Court has held as follows: “25. On the other hand, under Section 94 of the JJ Act, 2015, a presumption is raised that when a person is brought before the JJ Board or the Child Welfare Committee (“the Committee” for short) (other than for 1 (2022) 8 SCC60218 the purpose of giving evidence) and the said person is a child, the JJ Board or the Committee shall record such observation stating the age of the child as nearly as may be, and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age. But where the said Board or the Committee has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the JJ Board or the Committee, as the case may be, shall undertake the process of age determination by seeking evidence by obtaining: (i) The date of birth certificate from the school, or the matriculation or equivalent certificate from the examination Board concerned, if available; and in the absence thereof; (ii) The birth certificate given by a corporation or a municipal authority or a panchayat; (iii) And only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board; Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of the Act, be deemed to be the true age of that person.

26. For immediate reference Section 94 of the JJ Act, 2015 is extracted as under: “94. Presumption and determination of age.—(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed 19 with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned Examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

27. Under Section 7-A of the JJ Act, 2000 which was inserted by an amendment with effect from 22-8-2006, provision was made to claim juvenility by contending that the accused person was a juvenile on the date of commission of the offence and in such a case, on the evidence taken on record, a finding regarding the age of such person had to be recorded by the court, other than a JJ Board. The claim for juvenility could be raised before any court and at any stage, even after the final disposal of a case and such claim had to be determined in terms of the said Act and the rules made thereunder. If the court found a person to be a juvenile on the date of commission of offence under sub-section (1) of Section 7-A of the JJ Act, 2000, it had to forward the juvenile to the JJ Board for passing appropriate orders and the sentence, if any, passed by a court would not have any effect. However, under the JJ Act, 2015, a provision corresponding to Section 7-A of the JJ Act, 2000, is in 20 the form of sub-section (2) of Section 9 of the said Act, which has been extracted above.

28. Further, unlike Section 49 of the JJ Act, 2000, Section 94 of the JJ Act, 2015 provides for presumption and determination of age if the Juvenile Justice Board or the Committee has reasonable grounds to doubt whether the person brought before it is a child or not. It shall undertake the process of determination of age by seeking evidence such as: (i) The date of birth certificate from the school, or the matriculation or equivalent certificate from the Examination Board concerned, if available; and in the absence thereof; (ii) The birth certificate given by a corporation or a municipal authority or a panchayat. (iii) Only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.

29. The difference in the procedure under the two enactments could be discerned as under:

29. 1. As per the JJ Act, 2015 in the absence of requisite documents as mentioned in clauses (i) and (ii) of Section 94(2), there is provision for determination of the age by an ossification test or any other medical age related test to be conducted on the orders of the Committee or the JJ Board as per Section 94 of the said Act; whereas, under Rule 12 of the JJ Rules, 2007, in the absence of relevant documents, a medical opinion had to be sought from a duly constituted Medical Board which would declare the age of the juvenile or child. 29.2. With regard to the documents to be provided as evidence, what was provided under Rule 12 of the JJ Rules, 2007 has been provided under sub-section (2) of Section 94 of the JJ Act, 2015 as a substantive provision. 21

29.3. Under Section 49 of the JJ Act, 2000, where it appeared to a competent authority that a person brought before it was a juvenile or a child, then such authority could, after making an inquiry and taking such evidence as was necessary, record a finding as to the juvenility of such person and state the age of such person as nearly as may be. Sub-section (2) of Section 49 stated that no order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order had been made is not a juvenile and the age recorded by the competent authority to be the age of person so brought before it, for the purpose of the Act, be deemed to be the true age of that person.

30. But, under Section 94 of the JJ Act, 2015, which also deals with presumption and determination of age, the Committee or the JJ Board has to record such observation stating the age of the child as nearly as may be and proceed with the inquiry without waiting for further confirmation of the age. It is only when the Committee or the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, it can undertake the process of age determination, by seeking evidence.

31. Sub-section (3) of Section 94 states that the age recorded by the Committee or the JJ Board to be the age of the persons so brought before it shall, for the purpose of the Act, be deemed to be the true age of that person. Thus, there is a finality attached to the determination of the age recorded and it is only in a case where reasonable grounds exist for doubt as to whether the person brought before the Committee or the Board is a child or not, that a process of age determination by seeking evidence has to be undertaken.

32. The relevant decisions on the provisions under consideration could be referred to at this stage:

32. 1. In Ashwani Kumar Saxena v. State of M.P. [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC750: (2013) 1 SCC (Cri) 594]. , this Court opined that under Section 7-A of the JJ Act, 2000 obligated the Court to make an inquiry and not an investigation or trial under the Code of 22 Criminal Procedure. The Court stated its opinion in the following words : (SCC p. 764, para

34) “34. … There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for medical report for age determination.

32.2. Reference could also be made to another decision of this Court in Abuzar Hossain v. State of W.B. [Abuzar Hossain v. State of W.B., (2012) 10 SCC489 (2013) 1 SCC (Cri) 83]. , wherein it has been summarised as under : (SCC pp. 509-10, para

39) “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 23 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 SCC415: (2009) 3 SCC (Cri) 431]. and Pawan [Pawan v. State of Uttaranchal, (2009) 15 SCC259: (2010) 2 SCC (Cri) 522]. , these documents were not found prima facie credible while in Jitendra Singh [Jitendra Singh v. State of U.P., (2010) 13 SCC523: (2011) 1 SCC (Cri) 857]. 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 shall 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. 24

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.

32.3. In Arnit Das (1) v. State of Bihar [Arnit Das (1) v. State of Bihar, (2000) 5 SCC488:

2000. SCC (Cri) 962]., this Court observed that while considering the question as to determination of the age of an accused for the purpose of ascertaining whether he is a juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced in support of the plea that he was a juvenile and, if two views may be possible, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. This is because the Act being a welfare legislation, the courts should be zealous to see that a juvenile derives full benefits of the provisions of the Act but at the same time it is also imperative for the courts to ensure that the protection and privileges under the Act are not misused by unscrupulous persons to escape punishment for having committed serious offences. 32.4. In Jitendra Ram v. State of Jharkhand [Jitendra Ram v. State of Jharkhand, (2006) 9 SCC428 (2006) 2 SCC (Cri) 623]. , this Court has sounded a note of caution on the earlier observations made by it in Bhola Bhagat v. State of Bihar [Bhola Bhagat v. State of Bihar, (1997) 8 SCC720:

1998. SCC (Cri) 125]. , wherein it was observed that an obligation has been cast on the Court that where such a plea is raised having regard to the beneficial nature of the socially oriented legislation, the same should be examined with great care. This Court referring to its decision in Bhola Bhagat [Bhola Bhagat v. State of Bihar, (1997) 8 SCC720:

1998. SCC (Cri) 125]. observed as follows : (Jitendra Ram case [Jitendra Ram v. State of Jharkhand, (2006) 9 SCC428: (2006) 2 SCC (Cri) 623]. , SCC p. 433, para

20) “20. … We are, however, of the opinion that the same would not mean that a person who is not entitled to the benefit of the said Act would be dealt with leniently only because such a plea is raised. Each plea must be judged on its own merit. Each case has to be considered on the basis of the materials brought on records.” 25 32.5. The aforesaid observations were made in the context of what had been stated in Bhola Bhagat v. State of Bihar [Bhola Bhagat v. State of Bihar, (1997) 8 SCC720:

1998. SCC (Cri) 125]. which is extracted as under : (Bhola Bhagat case [Bhola Bhagat v. State of Bihar, (1997) 8 SCC720:

1998. SCC (Cri) 125]. , SCC p. 729, para

18) “18. Before parting with this judgment, we would like to re-emphasise that 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.” (emphasis in original) 32.6. Further, in Jabar Singh v. Dinesh [Jabar Singh v. Dinesh, (2010) 3 SCC757: (2010) 2 SCC (Cri) 484]., this Court considered a situation wherein the entry of date of birth in the admission form of the school records or transfer certificates did not satisfy the condition laid down under Section 35 of the Evidence Act i.e. the said entry was not in any public or official register and was not made either by a public servant, in the discharge of his official duty or by any person in performance of a duty specially enjoined by the law of the country and therefore the said evidence was not relevant for the purpose of determining the age of the accused in the said case. In the aforesaid case, this Court set aside the order [Dinesh v. State of Rajasthan, 2006 SCC OnLine Raj 1460]. of the High Court in revision and confirmed the order of the trial court holding that the accused therein was a juvenile at the time of the commission of the alleged offence. 32.7. In Babloo Pasi v. State of Jharkhand [Babloo Pasi v. State of Jharkhand, (2008) 13 SCC133 (2009) 3 SCC26(Cri) 266]., this Court while dealing with the provisions of the JJ Act, 2000, observed as under: (SCC p. 142, paras 22-23) “22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence.

23. It is true that in Arnit Das (1) v. State of Bihar [Arnit Das (1) v. State of Bihar, (2000) 5 SCC488:

2000. SCC (Cri) 962]. this Court has, on a review of judicial opinion, observed that while dealing with a question of determination of the age of an accused, for the purpose of finding out whether he is a juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. We are also not oblivious of the fact that being a welfare legislation, the courts should be zealous to see that a juvenile derives full benefits of the provisions of the Act but at the same time it is also imperative for the courts to ensure that the protection and privileges under the Act are not misused by unscrupulous persons to escape punishments for having committed serious offences.

32.8. In State of M.P. v. Anoop Singh [State of M.P. v. Anoop Singh, (2015) 7 SCC773 (2015) 4 SCC (Cri) 208]. , it was observed that the ossification test is not the sole criterion for determination of date of birth, when birth certificate and middle school certificate are available. It was observed that the High Court was not right in presuming that the prosecutrix, therein, was more than 18 years of age at the time of the incident. There was a difference of two days in the date of birth mentioned in the birth certificate and the middle school certificate but the same was held to be a minor discrepancy. In that case, it was held that the prosecutrix was below 16 years of age at the date of the incident and set aside the judgment passed by the High Court. 27

32.9. Sanjeev Kumar Gupta v. State of U.P. [Sanjeev Kumar Gupta v. State of U.P., (2019) 12 SCC370: (2019) 4 SCC (Cri) 379]., is a judgment authored by one of us (Hon'ble Dr D.Y. Chandrachud, J.), wherein the credibility and authenticity of the matriculation certificate for the purpose of determination of the age under Section 7-A of the JJ Act, 2000, came up for consideration. In the said case, the JJ Board had rejected the claim of juvenility and this Court confirmed the decision of the JJ Board rejecting the claim of juvenility by setting aside the judgment [Puneet v. State of U.P., 2018 SCC OnLine All 5150]. of the High Court. In the said case, it was observed that the records maintained by CBSE were purely on the basis of the final list of the students forwarded by the Senior Secondary School where the second respondent therein had studied from Classes 5 to 10, and not on the basis of any other underlying document. On the other hand, there was clear and unimpeachable evidence of date of birth which had been recorded in the records of another school which the second respondent therein had attended till Class 4 and which was supported by voluntary disclosure made by the accused therein while obtaining both, Aadhaar card and driving licence. It was observed that the date of birth reflected in the matriculation certificate could not be accepted as authentic or credible. In the said case, it was held that the date of birth of the second respondent therein was 17-12-1995 and that he was not entitled to claim juvenility as the date of the alleged incident was 18-8-2015. 32.10. In Sanjeev Kumar Gupta case [Sanjeev Kumar Gupta v. State of U.P., (2019) 12 SCC370: (2019) 4 SCC (Cri) 379]. , the judgment of this Court in Ashwani Kumar Saxena [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC750 (2013) 1 SCC (Cri) 594]. and Abuzar Hossain [Abuzar Hossain v. State of W.B., (2012) 10 SCC489: (2013) 1 SCC (Cri) 83]. were considered and it was noted that the decision in Abuzar Hossain [Abuzar Hossain v. State of W.B., (2012) 10 SCC489: (2013) 1 SCC (Cri) 83]. was rendered three days after the decision in Ashwani Kumar Saxena [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC750: (2013) 1 SCC (Cri) 594]., 28 and in Abuzar Hossain [Abuzar Hossain v. State of W.B., (2012) 10 SCC489: (2013) 1 SCC (Cri) 83]. , which was a three-Judge Bench decision, it was observed that the credibility and acceptability of the documents, including the school-leaving certificate, would depend on the facts and circumstances of each case and no hard-and-fast rule as such could be laid down in that regard. 32.11. It was observed in Abuzar Hossain [Abuzar Hossain v. State of W.B., (2012) 10 SCC489: (2013) 1 SCC (Cri) 83]. by Hon'ble T.S. Thakur, J., as then the learned Chief Justice was, that directing an inquiry is not the same thing as declaring the accused to be a juvenile. In the former, the Court simply records a prima facie conclusion, while a declaration is made on the basis of evidence. Hence, the approach at the stage of directing an inquiry has to be more liberal lest, there is miscarriage of justice. The standard of proof required is different for both. In the former, the Court simply records the prima facie conclusion. It would eventually depend on how the Court evaluates such material for a prima facie conclusion and the Court may or may not direct an inquiry. In the latter, the Court makes a declaration on evidence that it scrutinises and accepts such evidence only if it is worthy of acceptance. His Lordship further observed as under : (Abuzar Hossain case [Abuzar Hossain v. State of W.B., (2012) 10 SCC489: (2013) 1 SCC (Cri) 83]. , SCC p. 514, para

48) “48. … The Court would, therefore, in each case weigh the relevant factors, insist upon filing of better affidavits if the need so arises, and even direct, any additional information considered relevant including the information regarding the age of the parents, the age of siblings and the like, to be furnished before it decides on a case-to-case basis whether or not an enquiry under Section 7-A ought to be conducted. It will eventually depend on how the court evaluates such material for a prima facie conclusion that the court may or may not direct an enquiry.

32.12. In Parag Bhati v. State of U.P. [Parag Bhati v. State of U.P., (2016) 12 SCC744: (2017) 3 SCC (Cri) 819]. , both the aforesaid judgments were considered and this Court observed as under : (SCC pp. 757-58, paras 34-35) 29 “34. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled to the special protection under the JJ Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice.

35. The benefit of the principle of benevolent legislation attached to the JJ Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well-planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue.” From the above decision, it is clear that the purpose of the Juvenile Justice Act, 2000 is not to give shelter to the accused of grave and heinous offences. 32.13. In para 36 of Parag Bhati [Parag Bhati v. State of U.P., (2016) 12 SCC744: (2017) 3 SCC (Cri) 819]. it is observed : (SCC p.

758) “36. It is settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness of date of birth, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain [Abuzar Hossain v. State of W.B., (2012) 10 SCC489: (2013) 1 SCC (Cri) 83]. , an enquiry for determination of the age of the accused is permissible which has been done in the present case.” 30 32.14. In the judgment rendered by Hon'ble Hemant Gupta, J., in Ram Vijay Singh v. State of U.P. [Ram Vijay Singh v. State of U.P., (2021) 15 SCC241:

2021. SCC OnLine SC142:

2021. Cri LJ2805 , it was observed that the ossification test is not the sole criterion of age determination and a blind and mechanical view regarding the age of the person cannot be adopted solely on the basis of medical opinion by radiological examination. Though, radiological examination is a useful guiding factor for determining the age of a person, the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other circumstances. The relevant paragraphs of the said judgment are extracted as under : (SCC paras 15-17) “15. We find that the procedure prescribed in Rule 12 is not materially different than the provisions of Section 94 of the Act to determine the age of the person. There are minor variations as the Rules 12(3)(a)(i) and (ii) have been clubbed together with slight change in the language. Section 94 of the Act does not contain the provisions regarding benefit of margin of age to be given to the child or juvenile as was provided in Rule 12(3)(b) of the Rules. The importance of ossification test has not undergone change with the enactment of Section 94 of the Act. The reliability of the ossification test remains vulnerable as was under Rule 12 of the Rules.

16. As per the Scheme of the Act, when it is obvious to the Committee or the Board, based on the appearance of the person, that the said person is a child, the Board or Committee shall record observations stating the age of the child as nearly as may be without waiting for further confirmation of the age. Therefore, the first attempt to determine the age is by assessing the physical appearance of the person when brought before the Board or the Committee. It is only in case of doubt, the process of age determination by seeking evidence becomes necessary. At that stage, when a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person is around 40-55 years of age, the structure of bones cannot be helpful in determining the age. 31

17. This Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal [Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC1: (2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587]. held, in the context of certificate required under Section 65-B of the Evidence Act, 1872, that as per the Latin maxim, lex non cogit ad impossibilia, law does not demand the impossible. Thus, when the ossification test cannot yield trustworthy and reliable results, such test cannot be made a basis to determine the age of the person concerned on the date of incident. Therefore, in the absence of any reliable trustworthy medical evidence to find out age of the appellant, the ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.

33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

33. 1. A claim of juvenility may be raised at any stage of a criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim. It can also be raised for the first time before this Court. 33.2. An application claiming juvenility could be made either before the court or the JJ Board. 33.2.1. When the issue of juvenility arises before a court, it would be under sub-sections (2) and (3) of Section 9 of the JJ Act, 2015 but when a person is brought before a committee or JJ Board, Section 94 of the JJ Act, 2015 applies. 33.2.2. If an application is filed before the court claiming juvenility, the provision of sub-section (2) of Section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of Section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. 33.2.3. When an application claiming juvenility is made under Section 94 of the JJ Act, 2015 before the JJ32Board when the matter regarding the alleged commission of offence is pending before a court, then the procedure contemplated under Section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the criminal court concerned, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide Section 9 of the JJ Act, 2015). 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the court to discharge the initial burden. However, the documents mentioned in Rules 12(3)(a)(i), (ii) and (iii) of the JJ Rules, 2007 made under the JJ Act, 2000 or sub- section (2) of Section 94 of the JJ Act, 2015, shall be sufficient for prima facie satisfaction of the court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the criminal court concerned. In case of an inquiry, the court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of Section 94 of the 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of 33 proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7. This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the court or the JJ Board provided such public document is credible and authentic as per the provisions of the Evidence Act viz. Section 35 and other provisions. 33.11. Ossification test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis 34 of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015” (Emphasis supplied) The Apex Court considers entire spectrum of law and holds that delay in raising the claim of juvenility cannot be a ground for rejection of the claim, as it can be raised even at the first time before the Apex Court. Therefore, the threshold bar in terms of the submission of the learned High Court Government Pleader that for an incident of the year 2016 the plea of juvenility is raised in 2023 would not be applicable, as the Apex Court holds that delay cannot be the ground for rejection,even when the matter is brought before the Apex Court. The subject petition though preferred after 7 years, is preferred during the conduct of trial. Before the Apex Court in the aforesaid judgment, the matter was challenging the conviction. Therefore, the present proceedings are better placed than the facts obtaining before the Apex Court. The Apex Court further holds that it is only when the Board is at doubt with regard to the age, it should seek evidence, failing which, the school records would be adequate evidence, as they are public documents. In such 35 circumstances, the Apex Court holds that ossification test could be done.

12. In the case of KARAN @ FATIYA v. STATE OF MADHYA PRADESH2 the conviction and sentence against the juvenile was set aside by summarizing what is to be done. The Apex Court has held as follows: “…. …. ….

30. In Raju case [Raju v. State of Haryana, (2019) 14 SCC401: (2020) 1 SCC (Cri) 370]. , the appellant had not taken the plea of juvenility before the trial court, however, such plea was raised before the High Court but the same was rejected. However, this Court got an inquiry conducted by the Registrar (Judicial) of this Court who found him to be aged less than 18 years. The judgment in this case mainly dealt with the issue as to whether the report of Registrar (Judicial) of this Court could be accepted over and above the finding of the High Court which was different. The judgment proceeds to deal with this issue and ultimately comes to the conclusion that this could be done provided this Court itself tests the correctness of the report of the Registrar (Judicial). It is only in the penultimate para 27 while allowing the appeal it granted the relief of setting aside the conviction, sentence and further terminated the entire proceedings. There is no prior discussion on the issue whether conviction was required to be set aside or not on this technical ground. Merits of the conviction were not gone into. No ratio is laid down in the said case on this issue. Only while granting relief, conviction has also been set aside.

31. Following the above judgment in Raju [Raju v. State of Haryana, (2019) 14 SCC401: (2020) 1 SCC (Cri) 370]. , a 2 (2023) 5 SCC50436 two-Judge Bench of this Court in Ashok Kumar Mehra v. State of Punjab [Ashok Kumar Mehra v. State of Punjab, (2019) 6 SCC132: (2019) 2 SCC (Cri) 750]. set aside the judgment of conviction and sentence awarded to Appellant 2 therein who had claimed to be a juvenile. Para 14 of the said judgment [Ashok Kumar Mehra v. State of Punjab, (2019) 6 SCC132: (2019) 2 SCC (Cri) 750]. which grants the relief is reproduced herein : (Ashok Kumar Mehra case [Ashok Kumar Mehra v. State of Punjab, (2019) 6 SCC132: (2019) 2 SCC (Cri) 750]. , SCC p.

135) “14. In view of the foregoing discussion, we are of the considered opinion that since Appellant 2 was a juvenile on the date of commission of the offence and though till date he has already undergone considerable jail sentence partly as an undertrial and partly as a convict, yet the appeal filed by Appellant 2 has to be allowed as was done in Raju [Raju v. State of Haryana, (2019) 14 SCC401: (2020) 1 SCC (Cri) 370]. without going into the merits of the case and passing any other consequential order in that regard.

32. It will be pertinent to mention that in this judgment also there is no discussion with regard to the issue as to whether the conviction should be set aside. This judgment also does not lay down any ratio that if with respect to a juvenile a trial has been conducted by a Sessions Court without the accused having claimed juvenility before it, conviction could be set aside as being vitiated in law if subsequently it is held that . the accused was a juvenile 33. The above judgments relate to an offence covered by either the Juvenile Justice Act, 1986 (“the 1986 Act”) or the 2000 Act. We now proceed to briefly discuss the provisions under the 2015 Act. Section 9 of the 2015 Act is already reproduced in the earlier part of this judgment. According to sub-section (3) of Section 9 of the 2015 Act, the Court which finds that the person who committed the offence was a child on the date of commission of such offence would forward the child to the JJB for passing appropriate orders and sentence, if any, passed by the court shall be deemed to have no effect. This does not specifically or even impliedly provide that the conviction recorded by any court with respect to a person who has subsequently after the disposal of the case been found to be 37 juvenile or a child, would also lose its effect; rather it is only the sentence if any passed by the court would be deemed to have no effect.

34. There is another reason why a trial conducted and conviction recorded by the Sessions Court would not be held to be vitiated in law even though subsequently the person tried has been held to be a child.

35. The intention of the legislature was to give benefit to a person who is declared to be a child on the date of the offence only with respect to its sentence part. If the conviction was also to be made ineffective then either the jurisdiction of regular Sessions Court would have been completely excluded not only under Section 9 of the 2015 Act but also under Section 25 of the 2015 Act, provision would have been made that on a finding being recorded that the person being tried is a child, a pending trial should also be relegated to the JJB and also that such trial would be held to be null and void. Instead, under Section 25 of the 2015 Act, it is clearly provided that any proceeding pending before any Board or court on the date of commencement of the 2015 Act shall be continued in that Board or court as if this Act had not been enacted.

36. Section 25 of the 2015 Act is reproduced hereunder: “25. Special provision in respect of pending cases.— Notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of this Act, shall be continued in that Board or court as if this Act had not been enacted.

37. Having considered the statutory provisions laid down in Section 9 of the 2015 Act and also Section 7-A of the 2000 Act which is identical to Section 9 of the 2015 Act, we are of the view that merits of the conviction could be tested and the conviction which was recorded cannot be held to be vitiated in law merely because the inquiry was not conducted by JJB. It is only the question of 38 sentence for which the provisions of the 2015 Act would be attracted and any sentence in excess of what is permissible under the 2015 Act will have to be accordingly amended as per the provisions of the 2015 Act. Otherwise, the accused who has committed a heinous offence and who did not claim juvenility before the trial court would be allowed to go scot-free. This is also not the object and intention provided in the 2015 Act. The object under the 2015 Act dealing with the rights and liberties of the juvenile is only to ensure that if he or she could be brought into the mainstream by awarding lesser sentence and also directing for other facilities for welfare of the juvenile in conflict with law during his stay in any of the institutions defined under the 2015 Act.” (Emphasis supplied) The Apex Court holds that what could vary is a sentence but the trial should not be set aside if it is at the stage of challenging the order of conviction. Long before the afore-quoted judgment, a three Judge Bench of the Apex court in the case of RAM VIJAY SINGH v. STATE OF U.P.3 interprets Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 which deals with procedure for determining the age in the absence of documents. It holds that medical opinion should be sought from the duly constituted Medical Board which will declare the age of the juvenile. The further observation is that exact age cannot be assessed and the child should be given the benefit by considering his or her age on the 3 2021 SCC OnLine SC14239 lower side within the margin of one year. If the determination of age is on the medical test, it should be reduced by one year. The Apex Court has held as follows: “10. The judgment in Abuzar Hossain [Abuzar Hossain v. State of W.B., (2012) 10 SCC489 (2013) 1 SCC (Cri) 83]. considered Section 7-A of the Act and Rule 12 of the Rules. A perusal of Rule 12(3)(b) of the Rules shows that in the absence of documents as mentioned in clauses (i), (ii) or (iii), the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. It was further provided that in case wherein the exact assessment of the age cannot be done, the court or the Juvenile Justice Board, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. However, it is to be noted that Section 94 of the Act does not have any corresponding provision of giving benefit of margin of age.

11. Admittedly, in the present case, there is no date of birth certificate from the school or matriculation or equivalent certificate or a birth certificate given by a Corporation or Municipal Authority or Panchayat. Therefore, clause (iii) of Section 94(2) of the Act to determine the age by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board comes into play.

12. Mr Gopal Sankaranarayanan, learned Senior Counsel appeared on behalf of the appellant, argued that the accused was given bail by the High Court keeping in view his age as 15½-17½ years in the year 1982. Therefore, the appellant has to be treated as a juvenile in the light of the said order. It was contended that even considering the maximum age as 55 years as per the Medical Report now submitted, the appellant would still be less than 18 years on the date of incident. It was also argued that procedure as contained in Rule 12(3)(b) of the 40 Rules is now part of Section 94 of the Act. Therefore, once the statute has provided ossification test as the basis of determining juvenility, the findings of such ossification test cannot be ignored.

13. Mr Goel, on the contrary, argued that procedure as provided under Rule 12(3)(b) of the Rules is not materially different from that contained in the Statute. In fact, the discretion given to the Court to lower the age by one year in the Rules has been omitted. He further relied upon a judgment of this Court in Mukarrab [Mukarrab v. State of U.P., (2017) 2 SCC210 (2017) 1 SCC (Cri) 710]. wherein it has been held that the courts have observed that the evidence afforded by radiological examination is a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances. It was further held that the ossification test cannot be regarded as conclusive when the appellants have crossed the age of thirty years which is an important factor to be taken into account as age cannot be determined with precision. It was held as under : (SCC pp. 225- 26, paras 26-29) “26. Having regard to the circumstances of this case, a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination. At p. 31 of Modi's Textbook of Medical Jurisprudence and Toxicology, 20th Edn., it has been stated as follows: ‘In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, an opinion should be given according to the following Table, but it must be remembered that too much reliance should not be placed on this Table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development.’ Courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is 41 no doubt a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances.

27. In a recent judgment, State of M.P. v. Anoop Singh [State of M.P. v. Anoop Singh, (2015) 7 SCC773: (2015) 4 SCC (Cri) 208]. , it was held that the ossification test is not the sole criteria for age determination. Following Babloo Pasi [Babloo Pasi v. State of Jharkhand, (2008) 13 SCC133: (2009) 3 SCC (Cri) 266]. and Anoop Singh [State of M.P. v. Anoop Singh, (2015) 7 SCC773: (2015) 4 SCC (Cri) 208]. cases, we hold that ossification test cannot be regarded as conclusive when it comes to ascertaining the age of a person. More so, the appellants herein have certainly crossed the age of thirty years which is an important factor to be taken into account as age cannot be determined with precision. In fact in the medical report of the appellants, it is stated that there was no indication for dental x-rays since both the accused were beyond 25 years of age.

28. At this juncture, we may usefully refer to an article ‘A study of wrist ossification for age estimation in paediatric group in Central Rajasthan’, which reads as under: ‘There are various criteria for age determination of an individual, of which eruption of teeth and ossification activities of bones are important. Nevertheless age can usually be assessed more accurately in younger age group by dentition and ossification along with epiphyseal fusion. [Ref.: Gray H. Gray's Anatomy, 37th Edn., Churchill Livingstone Edinburgh London Melbourne and New York :

1996. 341-342].; A careful examination of teeth and ossification at wrist joint provide valuable data for age estimation in children. [Ref.: Parikh C.K. Parikh's Textbook of Medical Jurisprudence and Toxicology, 5th Edn., Mumbai Medico-Legal Centre Colaba :

1990. 44-45].; *** Variations in the appearance of centre of ossification at wrist joint shows influence of race, climate, diet and regional 42 factors. Ossification centres for the distal ends of radius and ulna consistent with present study vide article “A study of wrist ossification for age estimation in paediatric group in Central Rajasthan” by Dr Ashutosh Srivastav, Senior Demonstrator and a team of other doctors, Journal of Indian Academy of Forensic Medicine (JIAFM), 2004; 26(4). ISSN09710973]..’ 29. In the present case, their physical, dental and radiological examinations were carried out. Radiological examination of skull (AP and lateral view), sternum (AP and lateral view) and sacrum (lateral view) was advised and performed. As per the medical report, there was no indication for dental x-rays since both the accused were much beyond 25 years of age. Therefore, the age determination based on ossification test though may be useful is not conclusive. An x- ray ossification test can by no means be so infallible and accurate a test as to indicate the correct number of years and days of a person's life.

14. We do not find any merit in the arguments advanced by the appellant. The medical report in support of the bail order is not available. Such order granting bail cannot be conclusive determination of age of the appellant. It was an interim order of bail pending trial but in the absence of a medical report, it cannot be conclusively held that the appellant was juvenile on the date of the incident.

15. We find that the procedure prescribed in Rule 12 is not materially different than the provisions of Section 94 of the Act to determine the age of the person. There are minor variations as Rules 12(3)(a)(i) and (ii) have been clubbed together with slight change in the language. Section 94 of the Act does not contain the provisions regarding benefit of margin of age to be given to the child or juvenile as was provided in Rule 12(3)(b) of the Rules. The importance of ossification test has not undergone change with the enactment of Section 94 of the Act. The reliability of the ossification test remains vulnerable as was under Rule 12 of the Rules.

16. As per the Scheme of the Act, when it is obvious to the Committee or the Board, based on the appearance 43 of the person, that the said person is a child, the Board or Committee shall record observations stating the age of the child as nearly as may be without waiting for further confirmation of the age. Therefore, the first attempt to determine the age is by assessing the physical appearance of the person when brought before the Board or the Committee. It is only in case of doubt, the process of age determination by seeking evidence becomes necessary. At that stage, when a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person is around 40-55 years of age, the structure of bones cannot be helpful in determining the age.

18. Apart from the said fact, there is an application submitted by the appellant himself for obtaining an arms licence prior to the date of the incident. In such application, he has given his date of birth as 30-12-1961 which would make him of 21 years of age on the date of the incident i.e. 20-7-1982. The Court is not precluded from taking into consideration any other relevant and trustworthy material to determine the age as all the three eventualities mentioned in sub-section (2) of Section 94 of the Act are either not available or are not found to be reliable and trustworthy. Since there is a document 44 signed by the appellant much before the date of occurrence, therefore, we are of the opinion that the appellant cannot be treated to be juvenile on the date of incident as he was more than 21 years of age as per his application submitted to obtain the arms licence.” (Emphasis supplied) The Apex Court holds that ossification test conducted for determination of age could be reduced by a year. In the case before the Apex Court the test had revealed that the accused was 15 to 17 years. Therefore, the benefit of him being a juvenile was granted. If regard is had to what the Apex Court has held in the aforesaid judgment, what would unmistakably emerge is that the plea of juvenility can be raised at any point in time. The ossification test is not conclusive, as it could vary a year or two and the variance should be towards the benefit of juvenile, at least for one year and the juvenile should be tried as a juvenile by the Board and not by a regular Court before the Magistrate.

13. If the facts obtaining in the case at hand are considered on the touchstone of law as laid down by the Apex Court, what would unmistakably emerge is, the trial that is being conducted 45 before the learned Magistrate upon the petitioner is wholly without jurisdiction, as the Juvenile Justice Board without looking into the law, has transferred the file to the concerned Court, on the score that the alleged offence is under Section 4 of the POCSO Act and it has to be tried by a Special Court constituted for POCSO cases which is a Court of Sessions. Based upon the order passed by the Juvenile Justice Board, the learned Sessions Judge has taken cognizance of the offence under the POCSO Act inter alia and has concluded the trial. The matter is set at the stage of arguments. If the Juvenile Justice Board has not considered the case of the petitioner in proper perspective, as is observed by the Apex Court, the entire proceedings now transferred to the Special Court to try as POCSO case, becomes a Court without jurisdiction.

14. For the aforesaid reasons, the following:

ORDER

(i) Criminal Petition is allowed. 46 (ii) The proceedings that are pending before the concerned POCSO Court are kept suspended, till the Juvenile Justice Board would consider, after due enquiry, in terms of the observations made in the course of the order and continue the proceedings against the petitioner, thereafter. (iii) The Juvenile Justice Board shall bear in mind the observations made by the Apex Court in the aforesaid judgments and the provisions of law under which it has to pass such orders in accordance with law. (iv) The Juvenile Justice Board shall now, within a period of three months, decide the issue and place it before the concerned Court, if need be. (v) All other contentions would remain open to be considered, once the Board would pass necessary orders in the next three months. 47 Consequently, I.A.No.1 of 2023 also stands disposed. Sd/- JUDGE bkp CT:MJ

Court	Karnataka Dharwad High Court
Decided On	Mar-11-2024
Case Number	CRL.P 101356/2023
Judge	M.NAGAPRASANNA
Appellant	Veeresha S/o Siddappa Koravara
Respondent	The State Of Karnataka

Veeresha S/o Siddappa Koravara Vs. The State Of Karnataka - Court Judgment