New Delhi: On Friday, October 6, a two-judge bench of the Supreme Court comprising Justices Vikram Nath and Rajesh Bindal, in Joginder Pal vs The State of Himachal Pradesh, stayed the Himachal Pradesh high court’s order dated April 26, 2023, setting aside the findings of the court below that the accused be treated as major and be tried accordingly. The high court had also ordered an ossification test of the accused to be conducted by the Juvenile Justice Board, and depending upon the report of the Testing Authority, dealing with the accused in accordance with law.
In the instant case, the Juvenile Justice Board (JJB) held the murder-accused in a road rage case to be a juvenile on September 19, 2014, finding his age below 18 years of age on the date of the incident, June 20, 2014. The father of the deceased challenged the JJB’s order before the Court of Sessions Judge, Mandi (Himachal Pradesh) which allowed the appeal, setting aside JJB’s order with a direction to make an inquiry for determination of the age of the accused and thereafter to proceed with the matter in accordance with the law.
Thereafter, another order was passed by the JJB on May 26, 2017, again finding the age of the accused to be below 18 years, and he was declared as juvenile in conflict with law. The father of the deceased again assailed the order by way of an appeal, and in terms of judgment dated February 28, 2018, the appellate court set aside the JJB’s order, and issued directions to make a fresh inquiry for determination of the age of the accused and to proceed with the matter thereafter.
The accused, Shiv Kumar alias Shivam, filed a criminal revision petition before the high court, alleging that he was not heard by the appellate court before passing the order on February 28, 2018. The high court set aside the order of the appellate court, directing it to hear the matter afresh after hearing the accused. Upon remand, the appellate court again set aside the JJB’s order dated May 26, 2017, and directed the Board to make an inquiry for determination of the age of the accused.
The accused challenged this judgment by way of a criminal revision petition before the high court which set aside the findings returned by the appellate court on April 24, 2019, with a direction to decide the appeal strictly in accordance with law. On November 20, 2021, the appellate court again set aside the JJB’s order and held the accused to be an adult.
Facts
The father of the deceased alleged before the high court that the date of birth of the accused was mentioned in the matriculation certificate as June 14, 1997. Section 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000 lays down that where it appears to the competent authority that person brought before it under any of the provisions of this Act is a juvenile or the child, it shall make due inquiry so as to the age of person so brought before it, which shall be deemed to be the true age of that person.
In terms of Rule 12.3 of the Juvenile Justice (Care and Protection of Children) Rule, 2007, the age determination inquiry is to be conducted by the Court or the Board or as the case may be, the Committee by seeking evidence by obtaining matriculation or equivalent certificates, if available, and in the absence whereof, the date of birth certificate from the school etc.
It was argued before the high court that since the matriculation certificate of the accused was available, the date mentioned therein was to be construed as sacrosanct, and this was lost sight of by the appellate court while allowing the appeal. It was urged that the appellate court did not appreciate that the factum of date of birth of the accused being June 14, 1997, it was also corroborated by other documents, Aadhaar Card, voter card and school record.
It was also argued before the high court that there was some discrepancy with regard to name of the accused, as his name is Shivam Chaudhary and not Shiv Kumar and the documents relied upon by the appellate court were relating to Shiv Kumar and not the accused, whose name is Shivam Chaudhary.
The father of the deceased, who is a respondent in the case, submitted to the high court that there is a variation in the date of birth of the accused as recorded in the matriculation certificate as compared to the record of the school and the record of the Gram Panchayat. Besides, it has been alleged that criminal proceedings stand initiated against the parents of the accused as also the school management for forging with the admission record of the accused in the school.
The high court found that the appellate court had not taken into consideration the fact that the documents in which date of birth of the accused is June 14, 1997 were existing before the date of the incident, so it cannot be assumed that there was some tinkering with the date of birth therein, so that the accused could be shown as a minor after the incident.
The high court relied on the Supreme Court’s judgment in Rishipal Singh Solanki vs State of Uttar Pradesh (2021) and others in which, it was held that Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 , which is akin to Section 49 of the 2000 Act raises a presumption regarding juvenility of the age of the child brought before the JJB or the Committee. However, in case the Board or Committee has reasonable ground for doubt, it can undertake the process of determination of age by seeking evidence. The Supreme Court had held that the presumption has to be drawn on observation of the child. The evidence can be in the form of date of birth certificate from the school or the matriculation certificate from the Board concerned, if available. In the absence thereof, the birth certificate given by a Corporation or by a Municipal Authority or a Panchayat can be relied upon. In the absence of the above, the age has to be determined by an ossification test or any other medical age determination test.
The high court held that ossification test will put to rest any controversy with regard to the age of the accused as on the date when the offence took place and the test would carry more authenticity in the light of there being documents which are giving contradictory dates of the age of the accused.
The high court found that whereas there is no tinkering with the documents in terms whereof the accused was a major as on the date when the incident took place, there is an overwriting etc in some of the documents, benefit of which is being claimed by the accused to put forth his contention that he was a minor on the date of the incident.
