of Jammu & Kashmir) and is directed against the order passed by the High Court of Jammu & Kashmir at Jammu dated 11.10.2019 by which the High Court rejected the Criminal Revision Application
No 27 of 2018 filed by the appellant State herein, thereby affirming the order passed by the Chief Judicial Magistrate, Kathua dated 27.03.2018 holding the respondent accused herein to be a juvenile on the date of the commission of the alleged offence. Since the respondent herein claimed to be a juvenile, his trial was separated. On 17.01.2018, the body of the victim was found and taken into custody by the police. The Delhi Forensic Science Laboratory analysed fourteen packets of evidence containing vaginal swabs, hair strands, blood samples of four accused, viscera of the deceased girl, the girl’s frock and salwar, simple clay and blood-stained clay. One of the accused persons namely Sanji Ram along with the respondent herein was found to be the main accused in the case. Accused Mannu held her legs and the JCL (respondent) administered Manars one by one forcibly to the victim. the JCL again went to Devisthan and administered 3 sedatives tablets to the girl while she was unconscious with empty stomach…. The investigation also revealed that after committing the rape, JCL directed accused Vishal Jangotra @ Shmma and accused Mannu to leave Devisthan. The accused Vishal Jangotra @Shamma locked the door and JCL disposed the dead body by throwing it inside the jungle while accused Vishal Jangotra @Sham ma was guarding outside bushes…
As per the final opinion of the expert “the peak concentration of Clonazepam is achieved in the blood after one hour to 1.5. After hearing learned counsel for the parties and from perusal of the status report, I deem it appropriate to issue the following directions to the SIT: That the SIT shall take steps for ascertaining the age of Shubam Sangra within a period of 10 days from today by Medical Board which shall be constituted by Principal, Government Medical College, Jammu; 2. Taking into account the fact that the part of the status report dated 19.02.2018 has been published in daily newspaper, namely, Greater Kashmir, in extensor and taking into account the sensitivity of the matter as well as to ensure free and fair trial, I deem it appropriate to direct that the proceeding of the instant writ petition shall not be published in any newspaper.
The Special Medical Board constituted, as above, undertook the medical examination of the respondent herein and gave its report dated 03.3.2018 which reads thus: AGE ESTIMATION REPORT Name SHUBHAM SANGRA @ SHUBOO Sex: MALE S/o. Left) 1234567 8 8765432 1 (U. Right) Referred to Deptt of Oral Diagnosis IGGDC Jammu for dental age estimation by Dr Satvinder Singh. Satvinder (Deptt of Radio (Deptt of Anatomy) (IGDDC Jammu) Diagnosis)
3/03/2018 FINAL OPINION – Received R/8″ x 10” x four (4) films reported by Dr. In view of the aforesaid submission, the Medical Superintendent, District Hospital, Kathua is directed to hand over the copy of the post-mortem report as well as reply to the questionnaire to the officer heading the Special Investigating Team within a period of three days from the date of receipt of certified copy of the order passed today. In view of the aforesaid submissions and taking into account the provisions contained under Section 8 of the J and K Juvenile Justice (Care and Protection of Children) Act, 2013 as well as Rule 74 of the Rules framed under the Act, the Chief Judicial Magistrate, Kathua is directed to ascertain the age of the accused, namely, Shubam Sangra within a period of ten days from the date of receipt of certified copy of the order passed today, without being influenced by the report submitted to the District Medical Board. The Tehsildar of Hira Nagar vide his communication dated 14.03.2018 informed the Superintendent of Police, In-charge SIT Crime Branch that the original record in respect of date of birth of the respondent herein was not traceable.
On 20.03.2018, the respondent herein preferred an application in the Court of the CJM, Kathua under Section 8 of the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 (for short, ‘the Act, 2013’) for determination of his claim as a juvenile. Yousuf S/o Sahib Din caste Bakarwal R/o Rasana Mohara Plakh Phawara Tehsil Hiranagar produced an application in Urdu before the P/S Hiranagar stating therein that his daughter Miss Asifa Age 8 years had gone for grazing horses in the nearby forest on 10.01.2018. 03.2018 to 22.03.2018 = 11 days Total – 67 days, (62 days as per the calendar entries)
Apart from this, the Ld. Court of Chief Judicial Magistrate Kathua vide order dated 30.01.2018, 05.02.2018, 19.02.2018 and 26.02.2018 has granted the custody of juvenile delinquent Shubam Sangra for 3 days + 3 days + 3 days + 1day respectively. PC and circumstantial evidence the offences u/s 363, 343, 302, 376, 120-B/RPC have been prima facie made out against Shubam Sangra@ chuboo. In compliance to the above direction of Hon’ble High Court J&K Jammu, the Principal GMC Jammu was requested vide this office letter No CBJ/FIR/l0 2018/56 dated 26.02.2018 to constitute a Medical Board for determination of age in respect of juvenile delinquent Shubam Sangra @ Chuboo. The board of doctors so constituted examined the juvenile delinquent Shubam Sangra on 28.02.2018 and accordingly Principal GMC Jammu submitted the opinion of the board vide letter No.
Yousuf of village Rasana and in furtherance of this criminal conspiracy the accused persons namely Surinder Kumar S/o Sain Dass R/o Dhamiyal Hiranagar, Parvesh Kumar @ Mannu S/o
Ashok Kumar R/o
Rasana Hiranagar and Vishal jangotra @ Further, during investigation it has also transpired that the officers and officials of P/s Hiranagar were a part of the criminal conspiracy as the clothes of deceased Asifa were washed up in the premises of Police Station Hiranagar on 17.01.2018 before being sent to FSL for forensic examination.
CB/FIR/10-20181127 dated 13.03.2018 to provide the file regarding issuance of order to executive officer Municipal Committee Hiranagar for making the entry of date of birth in respect of said Shubam Sangra in the record of Municipal Committee. Further it is also submitted that Executive officer of Municipal Committee Hiranagar has made an entry in the date of birth register of Municipal Committee in respect of juvenile Shubam Sangra mentioning there in that the said individual was born in Hiranagar Hospital. CB/FIR/10- 2018/135 dated 14.03.2018 the Block Medical Officer Health and Family Welfare Hiranagar vide office letter No. “Taking into account the provisions contained under Section 8 of the J&K ]uvenile]ustice (Care and Protection of Children) Act; 2013 as well as Rule 74 of the Rules framed under the Act; the Chief Judicial Magistrate Kathua is directed to ascertain the age of the accused, namely, Shubam Sangra with in a period of ten days from the date of receipt of certified copy of the order passed today, without being influenced by the report submitted by the District Medical Board”.
For the purpose of adjudicating the application filed by the respondent herein under Section 8 of the Act, 2013 referred to above, the CJM, Kathua recorded the deposition of the Executive Officer, Municipal Committee, Hira Nagar and of the father of the respondent herein namely Om Prakash. Further, according to this witness, date of birth entry of petitioner has been recorded on 15-04-2004 in the records of Municipal Committee; that said entry has been made by then Executive Officer whose signatures and seal is at serial no. 22/JC dated 15-04-2004 entry of three children of Om Parkash (father of petitioner) was directed to be made by Executive Magistrate 1st Class Hiranagar; that date of birth of petitioner was entered in compliance with this order of Executive Magistrate 1st Class only; that signature father of petitioner exists at serial no. According to this witness, petitioner is his real son; that date of birth of petitioner is 23-10-2002; that this date of birth of petitioner is also entered in the record of Municipal Committee Hiranagar and same was made on 15-04-2004; that prior to this he moved an application for making entry of date of birth of petitioner before Executive Magistrate 1st Class Hiranagar and also led evidence and finally Tehsildar Hiranagar issued order in the name of Municipal Committee Hiranagar pursuant to which date of birth of petitioner was recorded as 23-10- 2002; that name of his wife is Tripta Devi. Petitioner was admitted in Modern Public Higher Secondary School Hiranagar in the first class; that there also he disclosed date of birth of petitioner as 23-102-2002; that petitioner was admitted in said school 10 years back; that however a wrong entry of date of birth of petitioner has been made in school records; that date of birth of petitioner shown in school is 23-10-2003; that he came to know about this wrong entry of date of birth of petitioner in school only when FIR was registered against him (petitioner) pursuant to which he went to school to get date of birth certificate of petitioner etc. The fact that birth certificate issued by Municipal committee supra on 17-03-2018 is in accord with and conforms to original record, have been vividly demonstrated, both, by records of Municipal Committee supra as also by the testimony of its Executive Officer. Notably also, the narrative un-wound by father of petitioner is in sync with account given by Executive Officer, Municipal Committee Hiranagar and relevant official record. For all what is discussed hereinabove, and in deference to the standard of proof required for the purpose of section 8 of the Act supra and Rule 74 and in light of proof offered, it is held that birth certificate issued by Municipal Committee Hiranagar in favour of petitioner Shubam Sangra depicting his date of birth as 23-10-2002 is legitimate, un-tainted and fair and therefore credence needs to be given to it for the purpose of Juvenile Justice Act supra. 259/2018.” The appellant State being dissatisfied and aggrieved with the aforesaid order passed by the CJM, Kathua dated 27.03.2018 challenged the same by filing the Criminal Revision Application before the High Court. Section 53 of the Act which is titled “Revision”, however, provides that the High Court may at any time, either of its own motion or on an application received on that behalf, call for the record of any proceeding in which any competent authority or court of session has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order, and may pass such order in relation thereto as it thinks fit. Section 52 of Juvenile Justice Act, 2013 referred to by the petitioners also refers to the facts that Court has to satisfy itself as to the legality and propriety of any such order, as such, the factual findings of fact cannot be upset by the Court unless and until it is found to be perverse. Patwalia, the learned senior counsel appearing for the appellant State vehemently submitted that the orders passed by the CJM, Kathua and the High Court could be termed as palpably erroneous and thereby rendering the dispensation of justice to a mockery. This order dated 15.04.2004 came to be passed pursuant to an application said to have been filed by the father of the respondent herein namely Om Prakash under Section 19 (3) of the Registration of Births and Deaths Act, 1956 r/w Rule 19(3) of the Rules. I have gone through the application, affidavit and the statements of witnesses from the above it has been established that the (illegible) of the applicant’s son Rahul Sangra has taken place at village Tehsil Hiranagar on 23-11-97, 21-2-98, 23-10-02 keeping in view the material placed before this Court, it is ordered that entry of the above named applicant’s. Our attention was drawn to the fact that the first child of Om Prakash namely Rahul Sangra is shown to have been born on 23.11.1997 whereas the second child i.e. the daughter namely Riya Sangra is shown to have been born on 23.01.1998 i.e. As against the aforesaid, the learned senior counsel invited the attention of this Court to a birth certificate said to have been issued by Modern Public Higher Secondary School dated 06.09.2017. Address W/ No 10, P.O Hiranagar, Teh Hiranagar, Distt Kathua, Pin 184142 Sd/- Principal Modern Public Higher Sec. Although what is relevant for our purpose is sub-rule (3) of Rule 74 of the Rules, 2014, yet we deem it appropriate to reproduce the entire Rule 74, which reads thus: “ 74. 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; or (iii) in absence of the certificates mentioned in sub-clauses (i) and (ii) or in case of any contradiction arising therefrom, the authority deciding the age issue may refer to a duly constituted Medical Board, which shall record its findings and submit to the Juvenile Justice Board. (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. The learned senior counsel submits that there is an apparent contradiction in the documentary evidence on record in the form of various certificates and in such circumstances the matter had to be referred to a duly constituted medical board and the age has now to be determined on the basis of the report of the medical board which is on record. On the other hand, the learned counsel appearing for the respondent vehemently opposed the present appeal submitting that no error, not to speak of any error of law could be said to have been committed by the courts below in determining the age of the respondent.
He submitted that howsoever the heinous crime may be but on the date of commission of the alleged offence if the accused is a juvenile then he has to be tried as a juvenile in accordance with law and not like any other accused. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the High Court committed any error in passing the impugned order? The materials on record as looked into by us above reveal no manner of doubt that there are discrepancies in the certificates on record disclosing the date of birth of the respondent. The correct way of looking at the core issue is to closely examine whether there is any cogent or convincing evidence as regards the correct date of birth of the respondent accused and after ascertaining the same, reach to an appropriate conclusion. It is equally well settled that where the word “may” involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word “may” should be interpreted to convey a mandatory force. As a general rule, the word “may” is permissive and operative to confer discretion and especially so, where it is used in juxtaposition to the word “shall”, which ordinarily is imperative as it imposes a duty.
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 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 the Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of the Act. At the end of the inquiry, if the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1) of Section 8, then in such circumstance, the court is obliged in law to forward the juvenile to the Juvenile Justice Board for passing appropriate order and the sentence. Presumption and determination of age.—(1) Where it appears to a competent authority that person brought before it under any of the provisions of the Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be. It is the High Court who thought fit to pass the order dated 21.02.2018 referred to by us in para 9 as above, directing the Special Investigation Team (SIT) to take steps for ascertaining the age of the respondent herein. In other words, the argument that the Special Medical Board should not have been constituted pales into insignificance because the Special Board was constituted under the directions issued by the High Court. The general rule about age determination is that the age as determined can vary plus minus two years but the Board has in the case at hand spread over a period of six years and taken a mean to fix the age of the appellant at 33 years. Taking his age as 34 years on the date of the examination he would have been 18 years, 2 months and 7 days on the date of the occurrence but such an estimate would be only an estimate and the appellant may be entitled to additional benefit of one year in terms of lowering his age by one year in terms of Rule 12(3)(b) (supra) which would then bring him to be 17 years and 2 months old, therefore, a juvenile.” On the other hand, the learned senior counsel appearing for the appellant State submitted that Darga Ram @ Gunga (supra) came to be considered by this Court in the case of Mukarrab v.
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. 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. 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.” Sub-clause (3) of the aforesaid Rule clearly mandates that while conducting an inquiry about the juvenility of an accused, the Juvenile Justice Board would seek evidence by obtaining the matriculation or equivalent certificates and in the absence whereof the date of birth certificate from the school first attended and in absence whereof the birth certificate given by a corporation or a Municipal authority or a Panchayat. Thus, it is only in the absence of the aforesaid documents that the Juvenile Justice Board can ask for medical information/ossification test. 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.” Ashwani Kumar Saxena (supra), referred to above, also deals with the Act, 2000. State of West Bengal, (2012) 10 SCC 489, (iv) Ashwani Kumar Saxena v. In Rishipal Singh Solanki (supra), this Court pointed out the similarity between the Rule 12 of the JJ Rules, 2007 and sub-section (2) of Section 94 of the Act, 2015, as substantive provisions. This Court referred to its decisions in Ashwani Kumar Saxena (supra) and Abuzar Hossain @ Gulam Hossain (supra) highlighting the fact that only in the cases where certificates are found to be fabricated and manipulated, the Juvenile Justice Board need to go for medical report and also highlighted the fact that the yardstick for relying on the school certificates may be a bit different where the school leaving certificate or voter list etc. 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 while obtaining both, the Aadhaar Card and driving license.
This Court in Sanjeev Kumar Gupta (supra) considered the judgments in Ashwani Kumar Saxena (supra) and Abuzar Hossain @ Gulam Hossain (supra), and 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. When the issue of juvenility arises before a Court, it would be under sub-section (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. When an application claiming juvenility is made under section 94 of the JJ Act, 2015 before the JJ Board 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.
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 concerned criminal court, 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). 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 2015 Act, a declaration is made on the basis of evidence. 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 Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. With a view to compare Section 48 of the Act, 2013 with Section 94 of the Act, 2015, we may also reproduce hereinbelow Section 94 of the Act, 2015: “ 94. (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.” In Parag Bhati (supra), after referring to Abuzar Hossain case (supra) and other decisions, this Court held as under: “34. 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.”
It is true that the accused tried to create a smokescreen with respect to his age but such efforts appear to have been made only to hide his real age and not to create any doubt in our mind. Any effort which weakens the system and shakes the faith of the common man in the justice dispensation system has to be discouraged.” (Emphasis supplied) 70. In Om Prakash (supra), this Court in paras 33, 34, 35, 36, 37 and 38 resply observed as under: “33. While considering the relevance and value of the medical evidence, the doctor’s estimation of age although is not a sturdy substance for proof as it is only an opinion, such opinion based on scientific medical tests like ossification and radiological examination will have to be treated as strong evidence having corroborative value while determining the age of the alleged juvenile accused. In the absence of all other acceptable materials, if such opinion points to a reasonable possibility regarding the range of his age it has certainly to be considered.” (emphasis supplied) The situation, however, would be different if the academic records are alleged to have been withheld deliberately to hide the age of the alleged juvenile and the authenticity of the medical evidence is under challenge at the instance of the prosecution.
In view of the aforesaid discussion and analysis based on the prevailing facts and circumstances of the case, we are of the view that Respondent 2 Vijay Kumar and his father have failed to prove that Respondent 2 was a minor at the time of commission of offence and hence could not have been granted the benefit of the Juvenile Justice Act which undoubtedly is a benevolent legislation but cannot be allowed to be availed of by an accused who has taken the plea of juvenility merely as an effort to hide his real age so as to create a doubt in the mind of the courts below who thought it appropriate to grant him the benefit of a juvenile merely by adopting the principle of benevolent legislation but missing its vital implication that although the Juvenile Justice Act by itself is a piece of benevolent legislation, the protection under the same cannot be made available to an accused who in fact is not a juvenile but seeks shelter merely by using it as a protective umbrella or statutory shield.
This would clearly be treated as an effort to weaken the justice dispensation system and hence cannot be encouraged.” Thus, 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 on the date of the incident and the documentary evidence at least prima facie establishes the same, he would be entitled to the special protection under the Juvenile Justice Act. As observed by this Court in Parag Bhati (supra), the benefit of the principle of benevolent legislation attached to the Juvenile Justice Act would thus be extended to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence inspiring confidence regarding his minority as the benefit of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he is alleged to have 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. It appears from the material on record that the father of the respondent at the time of preferring the application under Section 19(3) of the Registration of Birth and Deaths Act, 1956 r/w 19(3) of the Rules declared before the Executive Officer Municipal Committee, Hira Nagar that the medical committee, Hira Nagar had failed to record the birth of his three children including the respondent herein and in such circumstances he sought an order from the authority concerned as regards the date and place of birth under Section 19(3) of the Act, 1956.
Case Title: THE STATE OF JAMMU AND KASHMIR (NOW U.T. OF JAMMU AND KASHMIR) Vs. SHUBAM SANGRA (2022 INSC 1205)
Case Number: Crl.A. No.-001928-001928 / 2022
