Full Judgment
1. Heard Sri Satya Veer Singh, learned counsel for the revisionist, learned A.G.A. for the State and perused the material available on record.
2. Notice was personally served upon opposite party no.2, but he has not put in appearance.
3. This revision under section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 'Act') is directed against the order dated 23.9.2009 passed by Additional Sessions Judge, Fast Track Court No.5, Firozabad in Sessions Trial No.443 of 2004, under section 376 IPC, whereby application 40-B filed on behalf of the revisionist Mukesh for declaring him to be a juvenile in conflict with law was rejected.
4. Learned counsel for the revisionist submitted that on an application under section 7A of the Act filed on behalf of the revisionist, the court concerned was bound to hold an inquiry and should have reached a decision as to whether the revisionist was a juvenile or not on the date of incident.
5. Learned A.G.A. supports the impugned order.
6. The application 40-B was rejected by learned Additional Sessions Judge on the ground that the incident took place on 1.3.1998 and the date of birth of the accused - revisionist Mukesh in the school certificate is 1.7.1984. No affidavit was filed in support of the application. There was some overwriting on the date of birth and the school certificate appears to be doubtful. It was further observed that at the time of surrender, the accused - revisionist did not claim himself to be a juvenile and the application was moved at a very belated stage.
7. The contention of learned counsel for the revisionist is that on receipt of an application under section 7 A of the Act, learned Addl. Sessions Judge should have held an inquiry and should also have the accused - revisionist medically examined by a duly constituted medical board.
8. Section 7 A of the Act provides as under :
"7A. Procedure to be followed when claim of juvenility is raised before any court.-- (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 effect."
9. It is apparent from the aforesaid provision that an application under section 7A of the Act can be moved at any stage of the trial. It cannot be rejected on the ground that earlier, such a plea was not raised. Even at the stage of judgment or even after conviction, the plea of juvenility can be raised. Therefore, mere delay in filing the application is not a sufficient ground to reject the application.
10. The learned Addl. Sessions Judge was also wrong in observing that no affidavit in support of the application has been filed. In fact, as per provision of section 7A of the Act, evidence cannot be taken on affidavit. When an application under section 7A of the Act was filed, it was the duty of the court concerned to hold a proper inquiry. Learned Addl. Sessions Judge should have given opportunity to the accused, the prosecution as well as the complainant to lead evidence on the point of date of birth of the accused. If the school certificate appears to be doubtful or there was any overwriting on the same, it was the duty of the trial judge to summon relevant authorities from the school concerned and they could also have been directed to produce the school records for the purpose of ascertaining the actual date of birth of the accused - revisionist.
11. A person holding an inquiry under section 7A of the Act is not a referee between the two litigating parties i.e. prosecution and the defence, but the duty of the Court acting under section 7A of the Act is to find out the truth and to reach a proper conclusion regarding the age of the accused.
12. Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 'Rules 2007') provides as under :
"12 (3). Procedure to be followed in determination of Age.-- (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play 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.
13. As per Rule 12 (3) of Rules 2007, the date of birth of the accused is to be determined firstly on the basis of matriculation certificate and in absence thereof, on the basis of date of birth recorded in the school first attended and in the absence thereof, on the basis of date of birth recorded in the municipal records and in the absence of above three evidence, on the basis of opinion given my a duly constituted medial board. It was the duty of the learned trial judge to send the revisionist for medical examination.
14. In the instant case, the learned Addl. Sessions Judge has not conducted any inquiry and the application 40-B has been rejected on the irrelevant grounds. Thus, the impugned order cannot be sustained and is liable to be set-aside.
Revision is allowed.
15. Impugned order dated 23.9.2009 is set-aside.
16. Learned Additional Sessions Judge is directed to hold a proper inquiry in accordance with section 7A of the Act and Rule 12 (3) of the Rules 2007. He shall also provide opportunity to the accused, the State as well as the complainant to lead oral and documentary evidence in support of their respective claims and may also refer to the accused to a duly constituted Medical Board for obtaining its opinion regarding the age of the accused and thereafter the trial court shall record a finding whether the accused is a juvenile or a child or not on the date of the offence, stating his age as nearly as may be.