Rishipal Singh Solanki vs State of Uttar Pradesh & Ors.

respondent no.2 was a juvenile delinquent was supported with Certificate-cum-Marks Sheet of the High School issued by the concerned Board stating that the date of birth of respondent no.2 was 25.09.2004 – Admission forms were relied upon to prove that the respondent’s date of birth mentioned in the said documents are in consonance with the date of birth indicated in the matriculation certificate – Plea of appellant that the genuineness of the said documents was in grave doubt and thus could not have been relied upon in support of claim of juvenility – Held: In the instant case, admittedly, there is no other document indicating the date of birth of the respondent no.2 contrary to what has been indicated in the matriculation certificate – There is no discrepancy in the date of birth.

Juvenile Justice (Care and Protection of Children) Act, 2015 – Determination of age – Evidence – School records – Evidence Act, 1872 – s.35 – Held: 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 s.35 inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents – Any document 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 s.35 and other provisions.

Juvenile Justice (Care and Protection of Children) Act, 2015 – ss.94, 9(2), (3) – Juvenile Justice (Care and Protection of Children) Act, 2000 – ss.7A, 49 – Juvenile Justice (Care and Protection of Children) Rules, 2007 – r.12 – Determination of age – Difference in the procedure – Discussed.

Juvenile Justice (Care and Protection of Children) Act, 2015 – Claim of juvenility – Held: A claim of juvenility may be raised at any stage of a criminal proceeding, even after 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 Supreme Court – A hyper-technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile – 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. Juvenile Justice (Care and Protection of Children) Act, 2015 – ss.9, 94 – Determination of juvenility – Held: When the issue of juvenility arises before a Court, it would be u/sub-section (2) and

(3) of s.9 but when a person is brought before a Committee or JJ Board, s.94 applies – Further, 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 – Age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the 2015 Act, 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 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.

Juvenile Justice (Care and Protection of Children) Act, 2015 – s.94 – Presumption of juvenility – Juvenile Justice (Care and Protection of Children) Rules, 2007 – r.12 – Held: 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 r.12(3)(a)(i), (ii), and (iii), 2007 Rules or sub-section (2) of s.94, shall be sufficient for prima facie satisfaction of the Court – On the basis of the aforesaid documents a presumption of juvenility may be raised – However, said presumption is not conclusive proof of the age of juvenility and may be rebutted by contra evidence.

Juvenile Justice (Care and Protection of Children) Act, 2015 – Absence of documents mentioned in s.94(2), determination of age – Held: Ossification Test cannot be the sole criterion for age determination – A mechanical view regarding the age of a person cannot be adopted solely on the basis 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 s.94(2).

& ORS.

Dismissing the appeal, the Court

HELD: 1.1 On repeal of JJ Act, 2000 and on the enforcement of JJ Act, 2015, the procedure to be followed when a claim of juvenility is raised before any court, other than a Board is stipulated under section 9(2)&(3). There is no corresponding Rule to determine juvenility akin to Rule 12 of the JJ Rules, 2007. 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 (‘Committee’) (other than for 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 20 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 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. Under section 7A of JJ Act, 2000 which was inserted by an amendment with effect from 22.08.2006, 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 7A 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, 23 2015, a provision corresponding to section 7A of the JJ Act, 2000, is in the form of sub-section 2 of section 9 of the said Act. [Paras 21-23][521-D; 522-A-F; 523-F-H; 524-A]

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

(i) As per JJ Act, 2015 in the absence of requisite documents as mentioned in Sub-section (2) of Section 94(a) and (b), 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.

(ii) 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.

(iii) 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.

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 & ORS.

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. 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. [Paras 25-27][524-E-F; 525-A-E]

1.3 (i) 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.

(ii) An application claiming juvenility could be made either before the Court or the JJ Board.

(iia) 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.

(iib) 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.

(iic) 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. 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 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).

(iii) 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 Rule 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 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.

(iv) 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.

(v) 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 concerned criminal court. 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. 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 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.

(vi) 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.

& ORS.

(vii) A hyper- technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.

(viii) 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.

(ix) 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.

(x) 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 Indian Evidence Act viz., section 35 and other provisions.

(xi) 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 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. [Para 29][535-A-H; 536-A-H; 537-A-D]

1.4 The JJ Board, Baghpat, by its order dated 14.09.2020 dismissed the application seeking medical examination of respondent no.2 herein and there is nothing produced to show that the same has been set aside. According to the JJ Board, the matriculation certificate issued by the concerned Board indicated the date of birth as 25.09.2004 and it is only in the absence of such a document that determination of age had to be by ossification test or any other latest medical age determination test. In the instant case, since the certificate of the matriculation Board was available, it was unnecessary for orders for medical test of respondent no.2. By order dated 11.11.2020, the JJ Board declared respondent no.2 as a juvenile delinquent in Case Crime No.116 of 2020 for offences under sections 147, 148, 149, 323, 307, 302 and 34 of the IPC P.S. Singhawali Ahir, District Baghpat. The aforesaid order has been sustained by the District and Sessions Court as well as the High Court by holding that section

94 of the JJ Act, 2015 had been complied with in the instant case inasmuch as the matriculation or equivalent certificate from the concerned Examination Board had indicated the date of birth of respondent no.2 to be 25.09.2004. Therefore, Sub-section 2 of Section 94 of the JJ Act, 2015 applies as there were no reasonable ground to doubt the said document. In the absence of there being any evidence to negate the same, the criminal revision was dismissed. This is on the strength of Subsection (3) of Section 94 of the JJ Act, 2015 which is a deeming provision. Though the learned counsel for the appellant emphasized that the signatures of respondent no.2 on the admission forms of class 1 and class 8 are identical and it could not be so on the admission form of class

1 as he was only four and half years old when he was admitted to class 1. But the fact remains that in 2019, when respondent no.2 completed his class 10, his date of birth has been shown as 25.09.2004 in the matriculation certificate. Hence, respondent no.2 was only about 15 years of age on the date of incident, and in any case he was less than 16 years of age. In the absence of there being any rebuttal evidence brought on record by the appellant herein, even if the documents seeking admission to class 1 and class 8 are discredited or eschewed, the fact remains that the mark-sheet pertaining to the matriculation of respondent no.2, issued by the concerned Board, gives rise to a presumption that he was less than 16 years of age on the date of incident i.e.05.05.2020. [Paras 37, 39-42][539-B-C, E-H; 540-A-D]

1.5 A photocopy of the High School marksheet of accused respondent no.2 with Gazette year 2019, Roll No.0485064 year 2019, in respect of which a letter of verification being No.R.O.I.E.C./records/4016 dated 22.07.2020, received from the Office of the Administrative Officer, Regional Office, Intermediate & ORS.

Education Council, Uttar Pradesh (Meerut) also authenticated the date of birth of accused respondent no.2 as 25.09.2004. Moreover, the said matriculation certificate has been issued by the concerned Board. Further, the date of birth as recorded in the school admission records, as well as the matriculation certificate are the same namely, 25.09.2004. The incident occurred on 05.05.2020. Thus respondent no.2 was only 15 years

7 months of age on the date of the incident which in any case is less than 16 years of age. In the instant case, admittedly, there is no other document indicating the date of birth of the second respondent contrary to what has been indicated in the matriculation certificate. A discrepancy in the date of birth does not arise herein. No contra evidence to the documents produced by the second respondent have been produced by the appellant herein. In the circumstances, this court is not inclined to differ from the order of the High court which sustained the judgment of the District & Sessions Court as well as of the JJ Board in this case. [Paras 44, 46][540-G-H; 541-A-B; 541-D-E]

Sanjeev Kumar Gupta vs. State of Uttar Pradesh & Anr. (2019) 12 SCC 370 : [2019] 9 SCR 735 – distinguished.

1.6 Section 94 of the JJ Act, 2015 raises a presumption regarding juvenility of the age of the child brought before the JJ board or the Committee. But in case the Board or Committee has reasonable grounds for doubt about the person brought before it is a child or not, it can undertake the process of determination of age by seeking evidence. Thus, in the initial stage a presumption that the child brought before the Committee or the JJ Board is a juvenile has to be drawn by the said authorities. The said presumption has to be drawn on observation of the child. However, the said presumption may not be drawn when the Committee or the Board has reasonable grounds for doubt regarding the person brought before it is a child or not. In such a case, it can undertake the process of age determination by the evidence. The age recorded by the Committee or the 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 the true age of the person. The deeming provision in sub-section (3) of section 94 of the JJ Act, 2015 is also significant inasmuch as the controversy or the doubt regarding the age of the child brought before the Committee or the JJ Board is sought to be set at rest at the level of the JJ Board or the Committee itself. [Paras 47, 48][541-F-H; 542-C-D]

Babloo Pasi v. State of Jharkhand (2008) 13 SCC

133 : [2008] 14 SCR 161; State of M.P. V. Anoop Singh (2015) 7 SCC 773 : [2015] 6 SCR 960; Ashwani Kumar Saxena v. State of Madhya Pradesh (2012) 9 SCC

750 : [2012] 10 SCR 540; Arnit Das v. State of Bihar (2000) 5 SCC 488 : [2000] 1 Suppl. SCR 69; Jitendra Ram v. State of Jharkhand (2006) 9 SCC 428 : [2006]

1 Suppl. SCR 286; Bhola Bhagat & others v. State of Bihar (1997) 8 SCC 720 : [1997] 4 Suppl. SCR 711; Jabar Singh v. Dinesh and another (2010) 3 SCC 757 : [2010] 3 SCR 353; State of Madhya Pradesh v. Anoop Singh (2015) 7 SCC 733; Ram Vijay Singh vs. State of Uttar Pradesh 2021 CriLJ 2805 – relied on.

Abuzar Hossain alias Gulam Hossain v. State of West Bengal (2012) 10 SCC 489 : [2012] 9 SCR 244; Parag Bhati v. State of Uttar Pradesh (2016) 12 SCC 744 : [2016] 2 SCR 1089 – referred to.