| SooperKanoon Citation | sooperkanoon.com/1181227 |
| Court | Jammu and Kashmir High Court |
| Decided On | Nov-05-2015 |
| Case Number | Cr. Appeal No. 23 of 2014, MP No. 62 of 2014 & Confirm No. 11 of 2014 |
| Judge | Hasnain Massodi &Amp; Janak Raj Kotwal |
| Appellant | Mohd Rashid |
| Respondent | State of JandK |
Kotwal, J.
1. Appellant is alleged to have kidnapped a minor daughter of PW Abdul Rehman from his rented accommodation at Rani Talab, Jammu, raped her and committed her murder on 28.08.2005. In this regard crime No. 144/2005 was registered with Police Station, Pacca Danga, Jammu. Appellant was charge-sheeted and tried for commission of offences punishable under sections 363, 376 and 302 RPC. Learned trial court vide judgment dated 13.03.2014 found the appellant guilty and convicted him under aforementioned sections and vide order dated 27.03.2014 sentenced him to death in proof of offence under section 302 RPC, rigorous imprisonment for life and to pay fine of Rs. 10,000/- in proof of offence under section 376 and to rigorous imprisonment for seven years and to pay fine of Rs. 2,000/ in proof of offence under section 363 RPC.
2. Appellant is in appeal against his conviction and sentence. One of the grounds on which conviction and sentence have been questioned is the juvenility of the appellant. It is contended that date of birth of the appellant is 15.01.1991, his age as at the time of alleged occurrence, that is, 28.08.2005 was just over 14, he was a juvenile and entitled to benefit of juvenility under the Jammu and Kashmir Juvenile Justice Act, 1997 (for short, the Act of 1997) and the rules framed thereunder. It is contended that the plea of juvenility was raised on behalf of the appellant before the trial court but the learned court committed error by not declaring him a juvenile and giving him benefit of juvenility under the Act of 1997 and therefore, entire trial is vitiated.
3. When this case came up for hearing on 15.05.2015, this Court was of the view that the ground of juvenility if accepted is likely to set aside the trial court judgment. We have therefore, heard Mr. P. N. Raina, learned Senior Advocate appearing for the appellant and Ms. Seema Shekhar, learned Senior AAG appearing for the State on limited question of juvenility without touching merits of the case. We have perused the record.
4. Mr. Raina, learned Senior Advocate would say that learned trial court has failed in conducting inquiry for determining age of the appellant in the manner provided under section 32 of the Act of 1997 and the rules framed thereunder inasmuch as learned trial court committed error of law in ignoring the date of birth certificate issued by Headmaster of the School and recording a finding mainly based on appearance of the appellant. Per contra, Ms. Shekhar, learned Sr. AAG supported the finding in regard to age of the appellant recorded by the learned trial court and submitted also that the question of juvenility cannot be reopened because of the appellant having taken part in the trial after determination of his age by the trial court.
5. Before taking up the factual aspect of the case relating to determination of juvenility of the appellant and applying legal principles, we may briefly state the legal position in regard to dealing with the neglected juveniles and juvenile offenders. The Government of India enacted the Juvenile Justice Act, 1986 (for short the Central Act of 1986), to provide for care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for adjudication of matters relating to and disposition of the delinquent juveniles. On the similar line and with similar purpose and object the Act of 1997 was enacted in the State of Jammu and Kashmir. Prior to enactment of the Act of 1997, the Jammu and Kashmir Children Act of 1970 provided for treating a child below sixteen years of age differently from and not subjecting him to same treatment as was given to an adult offender.
6. In 1989, the General Assembly of United Nations adopted the Convention on the Rights of the Child (UNCRC). India ratified UNCRC in 1992. The Government of India in order to fulfil the standards of the UNCRC, repealed the Act of 1986 by enacting the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short the Central Act of 2000) providing for a special approach towards the prevention and treatment of juvenile delinquency and a framework for the protection, treatment and rehabilitation of children in the purview of the Juvenile Justice System. This Act was further amended in the year 2006 and 2010. In the State of Jammu and Kashmir the Act of the 1997 was repealed by the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 (for short, the Act of 2013). The Act of 2013 is generally similar to the Central Act of 2000.
7. Under section 2 (h) of the Act of 1997, a juvenile was defined as a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. Under section 2(e) a delinquent juvenile was defined as a juvenile who has been found to have committed an offence. A delinquent juvenile was entitled to the benefits of juvenility as provided under the Act of 1997 till the Act was in force before its repeal by the Act of 2013. Some of these benefits were the entitlement to bail under section 18, to be tried by a Juvenile Court in terms of section 7 read with section 20, notwithstanding anything contained in any other law for the time being in force, and not to be sentenced to death or imprisonment or committed to prison in default of fine or in default of payment of security as provided under section 22.
8. One of the major developments in the Act of 2013 is the increase in age of juvenility of a boy from sixteen to eighteen and parity between male and female juvenile in the matter of age. The term delinquent juvenile has been substituted by the term juvenile in conflict with law which has been defined under section 2(n) as a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of the commission of offence. Like the Act of 1997, benefits of entitlement to bail, trial by Juvenile Justice Board and not to be sentenced to death or imprisonment for life are available under the Act of 2013.
9. Coming to the case on hand, the Act of 1997 was applicable as at the time of commission of the alleged offence and during the trial of the appellant. Under section 32 of the Act of 1997, a duty was cast on competent authority including the court when it appeared that a person brought before it and said to have committed an offence was a juvenile to make an inquiry as regards the age of the said person. For the purpose of this inquiry, a duty was cast on the court to take such evidence as may be necessary and to record a finding whether the person was a juvenile or not, stating his age as nearly as may be.
10. We on examining the record on the trial court file have found that the appellant (accused) was arrested on 15.09.2005 and on 19.09.2005, the I.O. of the case got conducted his ossification test for determination of his age. The doctor after conducting the ossification test opined that age of the appellant was more than seventeen years and less than nineteen. Charge-sheet was, thus, filed before the committal court on 11.11.2005 and on the same day case came to be committed for trial to the trial court.
11. Minutes recorded in the trial court file would show that prior to framing of the charges against the appellant on 11.01.2007, a question about his juvenility was raised on behalf of the appellant. Minute recorded by the trial court on 27.05.2006 would show that defence counsel had moved an application stating therein that the appellant was a minor and in support thereof had produced photocopy of a date of birth certificate said to have been issued by Headmaster, Government Middle School, Takia, Magam. As per this certificate, Abdul Rashid Kumar S/O Ghulam Mohd. Kumar R/O Takia was reading in the said school up to 15.10.2003 in 7th class under Admission No. 235 and his date of birth recorded in the school was 15.01.1991. On the same day, learned trial court on the request of defence counsel ordered calling of original date of birth certificate of the appellant from the said school.
12. Minute recorded on 05.09.2006 would show that before any record from the aforementioned school was received, the appellant produced a certificate said to have been issued by the Headmaster of the said school. This certificate is lying on the trial court file and has been found to be the original of the photocopy earlier produced. The APP appearing for the State, however, disputed this certificate saying that the same has not been countersigned by the higher officers and appears to be fake. Learned trial court, therefore, issued fresh direction to the Headmaster of the school to submit the date of birth certificate of the appellant duly countersigned by the concerned ZEO. Trial court also observed that issue about minority of accused would be settled only after the genuine record is received from the concerned officer.
13. Minute record on 30.10.2006 would show that record from aforementioned Middle School was received and as per this record too, the date of the birth of the appellant was 15.01.1991. Learned trial court on noticing the date of birth of the appellant in the school record as 15.01.1991, however, observed that on the basis thereof appellant would be around fifteen and a half years as on date but from his physical appearance he must be more than eighteen years as on that day. Learned court therefore, in order to remove any doubt and to cross check the date of birth of the appellant, thought it proper to call the date of birth record from the concerned police station and issued a direction to the SHO, Police Station, Kokernag to submit the date of birth of the accused lying in the said Police Station to the court.
14. The minute record on 28.12.2006 would show that birth record of the accused was received from Police Station, Kokernag and learned trial court observed that on the basis of the said record, appellant was more than eighteen years. The copy of the birth register received from Police Station, Kokernag is available on the file of the learned trial court. As per this copy, name of the child in the birth register of the police station is written as Rashid Kumar, his father s name as Mohd. Kumar S/O Sabhan and mother s name as Jana Bano. Date of birth has been recorded as 12.01.1987 and the date of entry in the register has been recorded as 12.01.1987 too.
15. After receiving the record from Police Station, Kokernag, learned trial court took up the matter on 11.01.2007. Minute recorded on that day would show that as per the trial court there were two conflicting certificates and that as per the latest certificate received from the Police Station, Kokernag, the age of the appellant was around twenty years. The learned trial court, thus, took the view that the certificate issued from the Police Station seems to reflect the correct age of the accused as his physical appearance shows that he could be in no case less than 18 years and that the appellant (accused) could not be a juvenile as on the date of the commission of offence, rejected the plea of the defence and in the result benefit of the juvenility was not given to the appellant.
16. We have referred to in detail the procedure adopted by the learned trial court in deciding question of juvenility raised on behalf of the appellant shortly after filing of the charge sheet by the police and prior to framing of the charges by the trial court in order to deal with the contention of Mr. Raina, learned Senior Advocate appearing for the appellant, that learned trial court did not held the inquiry for determining the age of the appellant in the manner provided under section 32 of the Act of 1997 and the rules framed thereunder.
17. Having analysed the factual aspect of the proceedings conducted by the trial court, what may be called as the inquiry for determining the question of juvenility of the appellant, the question arising before us is whether the learned trial court acted according to law as provided under the Act of 1997 read with the rules and the finding in regard to juvenility of the appellant recorded by the trial court can be upheld?
18. Section 32 of the Act of 1997 is relevant. It reads:
32. Presumption and determination of age:
(1) Where it appear as to a competent authority that a person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, the competent authority hall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or not, stating his age as nearly as may be. (2) 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 has been made is not a juvenile, and the age recorded by the competent authority to be age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person.
19. Section 32 of the Act of 1997 on its plain reading would show that the competent authority, may it be the Juvenile Court or any other court before whom the question of juvenility of an accused was raised, was required to conduct inquiry and for that purpose take such evidence as was necessary to and to record a finding whether the accused was juvenile as at the time of the commission of offence or not, stating his age as nearly as possible. Court was required to arrive at the truth as regards age of the accused. Finding of the court was to be based on evidence produced on behalf of the juvenile or to be called by the court and not on surmises or conjunctures.
20. We have noticed that the I.O. had visualised necessity of ossification test of the appellant for determination of his age. The basis of such necessity might have been the age of the appellant as it appeared to the I.O. As per the opinion of the Doctor (Radiologist), who conducted the ossification test, the age of the appellant was more than seventeen years and less than nineteen and, therefore, according to the prosecution he was not a juvenile. Question of juvenility, however, was raised by the appellant in the trial court and thus, a duty was cast upon the trial court to conduct inquiry to determine the age of the appellant in accordance with section 32 of the Act.
21. The procedure adopted by learned trial court in determining juvenility of the appellant, however, was far from the procedure provided under section 32 of the Act of 1997. Learned trial court rather seems to have discharged the important and delicate duty cast upon it in hyper technical and mechanical manner in utter disregard to the procedure provided under law and has in the process defeated the very object of law relating to delinquent juveniles as envisaged by various legislative enactments from time to time and the Act of 1997, which was in operation at the relevant time.
22. It is noticed that learned trial court did not seek objections from the prosecution to the application for determination of juvenility filed on behalf of the appellant on 27.05.2008. Learned trial court did not make any endeavour to ascertain as to whether the age certificate issued by the Headmaster, Government Middle School Takia, Magam, which was relied upon by the appellant(accused), actually pertained to the appellant or not. Likewise, learned trial court also did not ascertain as to whether the copy of the birth register received from the Police Station, Kokarnag, pertained to appellant or not. It is noticed that as per the said copy entry of the birth of the person named therein was made on the date of birth itself, that is, 12.01.1987, name of the person was recorded as Rashid Kumar as against Mohammad Rashid alias Abdul Rashid, the appellant(accused) as shown in the memorandum of appeal as also the charge sheet and father s name was written as Mohammad Kumar as against Ghulam Mohammad, the name of the father of the appellant as shown in the memorandum of appeal as also the charge sheet. These aspects of the entry in the birth register do not seem to have attracted the attention of the trial court. Learned trial court did not even record the statement of the father of the appellant or his mother or any other person to probe as to whether the said birth certificate issued by the Headmaster or the copy of the birth register provided by the Police Station pertained to the petitioner and did not discuss the contradiction in the date of birth appearing in the two documents. Instead learned trial Court referred to the entry in the birth register, without ascertaining that the same related to the appellant, only to draw support for recording its positive finding on the basis of physical appearance of the appellant that he must be more than 18 years and in that learned trial court ignored the opinion of the Doctor (supra). Learned trial court as a matter of fact did not rely upon either of the aforementioned documents and recorded its conclusion as regards juvenility of the appellant more on the basis of his physical appearance, which is not legally correct. We, therefore, are not persuaded to and cannot accept the view taken by the learned trial court and would hold that question of juvenility (age) of the appellant was not determined by the trial Court according to the procedure provided under law.
23. We have registered the argument made on behalf of the State that after determination of the question of juvenility by the learned trial Court vide its order dated 30.10.2006, accused took part in the trial without assailing the order of the trial court so he cannot be permitted to raise the question afresh at this stage. We, however, cannot agree with this argument because of the importance and sensitivity of the question of juvenility and having regard to the change in legal position with the repeal of the Act of 1997 by the Act of 2013. Even if it is presumed that the appellant was above sixteen as at the time of commission of the alleged offence and therefore, not a juvenile under the Act of 1997, the question of juvenility still survives as under the Act of 2013 age of juvenility has been raised to eighteen and it is neither safe nor possible to hold or say on the basis of the proceedings conducted by the trial court that the appellant was more than eighteen at the relevant time. We cannot ignore that as per the ossification test of the appellant got conducted by the I.O. on 19.09.2005 the age of the appellant was something above seventeen years and below nineteen years, as per the birth certificate relied upon the appellant his date of birth is 15.01.1991 and as per the copy of birth register received from Police Station, Kokernag, date of birth of the person entered therein is 12.01.1987. In any case as regards the age of the appellant vis a vis the date of commission of offence, this is a borderline case both under the Act of 1997 and the Act of 2013 and proper determination of the question of juvenility was/ is indispensable.
24. Under section 21 of the Act of 2013, benefit of juvenility under this Act is available to all those accused who are juvenile, that is, had not completed age of eighteen years as at the time of commission of offence. A claim of juvenility can be raised in all the pending cases including trial, revision, appeal or any other criminal proceedings as if the Act of 2013 was in force at the time of the commission of the offence even if the accused has ceased to be a juvenile on or before the commission of the said Act. Like section 32 of the Act of 1997, section 8 of the Act of 2013 casts a duty upon a court to make an inquiry so as to determine age of an accused and record finding whether the accused is juvenile or not whenever a claim of juvenility is raised or the court is of the opinion that an accused person was a juvenile as on the date of the commission of the offence.
25. Sections 8 and 21 of the Act of 2013 and Rules 74 and 75 of the Jammu and Kashmir Juvenile Justice (Care and Protection Children) Rules, 2014 (for short Rules of 2014) framed under the said Act are relevant. We extract these provisions for easy reference:
8. 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 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 . (underlining by us) 21. Special provision in respect of pending cases Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence: Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.
Explanation:- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (n) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.
74. Determination of Age
(1) Whenever an alleged offender who appears to be below the age of 21 years is produced before a Court not being the Board, it shall on the very first date of production question the alleged offender about his age, satisfy itself that he is not a juvenile, make a note of its findings and order immediate transfer of the matter to the Board where necessary.
(2) When a juvenile or child or a juvenile in conflict with the law is produced before the Board or the Committee as the case may be, it shall determine and declare his age within a period of thirty days from the date of such production.
(3) The Board or the Committee, as the case may be shall, as far as possible, decide the juvenility or otherwise, on the basis of physical appearance or documents available, if any. Where an inquiry is instituted by the Board or the Committee for determination of age, such inquiry shall be conducted on the basis of following evidence:-
(i) the birth certificate issued by a Corporation or a Municipal Committee or any other notified authority; or (ii) the matriculation or equivalent certificate (iii) in absence of the certificates mentioned in sub-clauses (i) and (ii) or in case of any contradiction arising there from, the authority deciding the age issue may refer the matter to a duly constituted Medical Board, which shall record its findings and submit to the Juvenile Justice Board. (4) All Government Hospitals shall constitute Medical Boards for medical age examination, consisting of a Physiologist, a Dental Examiner and a Radiologist or Forensic Expert, of whom one shall be notified as the Chairperson. (5) All the members of the Medical Board shall give their individual findings on age, which shall then be forwarded to the Chairperson of the Board to give the final opinion on the age within a margin of one year. (6) The duly constituted Medical Boards shall give their report with the findings on age within 15 days of request being made in this regard. (underlining by us) 75. Declaration of age by the Court or Board or the Committee (1) The Court or the Board or the Committee as the case may be, shall declare the age after examining the witnesses on age and by affording opportunity of cross examination to the State/Complainant and the Juvenile.
(2) For the purposes of sub-rule(1), the witnesses may include School Principals or their representative, parents, Registrars of Education Boards, Municipal Corporation or Panchayat representative, Chairperson and Members of the Medical Board etc. (3) In case exact assessment of the age cannot be done, the Court or the Board or the Committee as the case may be, 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. (4) The decision of the Board or the Committee as the case may be, shall be the conclusive proof of the age as regards a child or a juvenile in conflict with law. (5) The Board or the Committee as the case may be shall provide a copy of the order declaring age to the concerned juvenile or child or his parent/guardian. (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) of this rule and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law. (underlining by us)
26. Section 21 of the Act of 2013 is pare materia section 20 of the corresponding Central Act of 2000 and section 8 of the Act of 2013 is pare materia section 7-A of the Central Act of 2000. Rule 74 of the Rules of 2014 in its substance and important terms corresponds Rule 12 of the Rules of 2007 framed under the Central Act of 2000.
27. In Hari Ram v State of Rajasthan, (2009)13 SCC 211 the Supreme Court while examining the scope of sections 7-A and 20 of the Central Act of 2000 has held that the claim of juvenility can be raised before any court at any stage and such claim is required to be determined in terms of the provisions contained in the Act of 2000 and the Rules framed thereunder, even if the juvenile has ceased to be so on or before the date of commencement of the Act of 2000. It has been held that the accused who had not completed eighteen years of age on the date of commission of offence is entitled to the benefits of the Act of 2000.
28. Now that the Act of 1997 has been repealed by the Act of 2013 and the question of juvenility of the appellant has been raised in this appeal, the question having not been determined by the trial court during trial of the accused in accordance with the Act of 1997, the said question is required to be determined afresh under and in accordance with the provisions of the Act of 2013 and the applicable rule of the Rules of 2014.
29. Having noticed the manner in which the learned trial court dealt with question of juvenility of the appellant, we would like to reiterate that the determination of the question juvenility of an accused is an important and judicious duty cast upon the competent authority. Benefits of juvenility are important legal entitlement of a juvenile in conflict with law but care is to be taken that such benefits are given to a juvenile only and are not manipulated by a person not entitled thereto. The inquiry therefore, is to be held strictly in accordance with the statutory provisions and is not to be based upon surmises and conjunctures. The competent authority should ensure that a document or documents relied upon by the accused or by either of the parties relate to the accused and to do so such evidence should be sought or called for as may be necessary. Endeavour of the authority should be to record a finding as to whether the accused is a juvenile or not and state his age as nearly as may be.
30. In Rajinder Chandera v. State of Chattisgarh, (2002) 2 SCC, 287, Supreme Court in para 5 of the reporting has observed as follows:
5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das vs. State of Bihar, (2000) 5 SCC 488, this court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hyper-technical 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 said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases.
31. In Ashwani Kumar Sexena v State of Madhya Pradesh, (2012) 9 SCC 750, the Supreme Court has examined in detail the scope, meaning and content of inquiry contemplated under sections 7-A of the Central Act of 2000 and Rule 12 of the Rules of 2007. A comprehensive examination of the entire gamut of the issue has been made by the Supreme Court after having noticed a large number of cases against the orders passed by the criminal courts in the claim of juvenility under section 7-A and Rule 12 primarily for the reason that many of the criminal courts are not properly apprised of the scope of inquiry contemplated under the statutory provisions. We may gainfully cull out paras 32 to 34 of the reporting:
32 Age determination inquiry contemplated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
33. Once the court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in subsection (5) or Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the Rule 12. Further, Section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination.
34. Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. 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, J.J. Board or a Committee functioning under the J.J. 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 J.J. Board or the Committee need to go for medical report for age determination.
32. Legal position as described in Ashwani Kumar Sexena has been reiterated by the Supreme Court in Jadhbir Singh v State of Punjab, AIR 2013 SC 1.
33. Section 8 of the Act of 2013 read with Rules 74 and 75 of the Rules of 2014 lays down the procedure for dealing with the question of determination of the age of the accused for the purpose of finding out whether he is juvenile or not. Section 8 provides that the court shall take such evidence, other than affidavits, as may be 'necessary', for determining the age of the accused and shall record a finding whether the accused is juvenile or a child or not stating his age as nearly as may be. Rules 74 and 75 lays down in detail the variety and the manner of taking the 'necessary' evidence as required under section 8 for determination and declaration of the age of the accused. In the scheme of things Rules 74 and 75 are required to be read in conjunction and in support of section 8 for determination of the question of juvenility in all the cases including a disposed of case in which the question of juvenility has not been decide by the trial court in accordance with law like the one in hand.
34. We would thus hold that the court when called upon to determine the question of juvenility under section 8 of the Act of 2013 should follow the procedure provided under section 8 read with Rules 74 and 75 of the Rules of 2014. We would also reiterate that care must be taken to ensure that any document or documents obtained in the process of inquiry pertains to the accused and to ensure that the prosecution should be given opportunity of filing objections to the claim of juvenility and court should take all such evidence as may be necessary.
35. We conclude, precisely, that the question of juvenility of the appellant as at the time of alleged commission of offence is required to be inquired into and decided afresh. We therefore, direct the trial court, that is, the Court of learned 3rd Additional Sessions Judge Jammu to inquire into and determine age of the appellant as on 28.08.2005, exactly or as nearly as may be, in accordance with the statutory provisions, that is, section 8 of the Act of 2013 read with Rules 74 and 75 of the Rules of 2014 as discussed above and send the record of the inquiry, decision in the matter and the record of the case to this Court. Learned Judge of the trial court is requested that inquiry should be concluded expeditiously and not later than a period of two months after record of the case is received in his court.
36. Registry shall immediately send the record of the case along with a copy of this order to the trial court where both the parties shall cause their appearance on 20.11.2015. Learned trial court may also call the appellant for his participation in the inquiry.
37. List immediately after record is received from the trial court.