Juvenile Justice: Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Rules, 2014: r.74 – Plea of Juvenility – Kathua Rape Case – The Kathua rape case involved abduction, gang rape and murder of an eight year-old girl by six men and the respondent (claiming to be a juvenile) – Special Medical Board opined the age of respondent as above 19 years – However, the CJM, Kathua relied on the deposition of the Executive Officer, Municipal Committee and the deposition of father of respondent held that respondent was juvenile on date of the commission of the offence – High Court upheld the order of CJM – Hence instant appeal by State – Held: Sub rule (3) of r.74 provides that in the absence of mentioned certificates or in the event of any contradiction, the authority deciding the issue of age ‘may’ refer the matter to duly constituted medical board – The word “may” should be read as “shall” having regard to the very object of subrule (3) of r.74 – If there is a clear and unambiguous case in favour of the juvenile accused that he was minor on the date of the incident and the documentary evidence at least prima facie established the same, he would be entitled to the special protection under the Juvenile Justice Act – Whereas when an accused commits a heinous and grave crime and thereafter attempts to take the statutory shelter under the guise of being a minor, a casual or cavalier approach cannot be permitted while recording as to whether he is a juvenile or not – There is no good reason to overlook or ignore or doubt the credibility of the final opinion given by a team of five qualified doctor – In the absence of all other acceptable materials, if opinion of the experts points to a reasonable possibility regarding range of his age, the Court must consider the same in the interest of justice – In the instant case, the documents evidencing date of birth did not inspire any confidence and there was no other option but to fall back on the report of the Special Medical Board in the interest of justice – The order passed by the High Court affirming the CJM’s order was not sustainable in law – Respondent accused was not juvenile at the time of the commission of the offence and, therefore, should be tried the way other co-accused were tried – Juvenile Justice (Care and Protection of Children) Act, 2000 – ss.7A and 94 – Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 – ss.8 and 48.
Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013: ss.8, 48 – Plain reading of s.8 of the Act, 2013 indicates that whenever a claim of juvenility is raised before any court or the court is of the opinion that the accused person was a juvenile on the date of the commission of the offence, then it is mandatory for the court to make an inquiry and in the course of such inquiry, the court may take such evidence as may be necessary, however, not an affidavit, so as to determine the age of such person – 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 s.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 – s.48 talks about a competent authority, whereas, s.8 is in respect to the court – However, what is relevant to note is that in both the Sections the word ‘shall’ has been used. Word and phrase: “May” – When Mandatory – It is a well settled principle of interpretation that the word ‘may’ when used in legislation by itself does not connote a directory meaning – If in a particular case, in the interests of equity and justice it appears to the court that the intent of the legislature is to convey a statutory duty, then the use of the word ‘may’ will not prevent the court from giving it a mandatory colour – Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Rules, 2014 – r.74. Allowing the appeal, the Court
HELD: 1. Sub-rule (3) of Rule 74, makes it abundantly clear that in the absence of the certificates mentioned in sub clause (i) to (iii) or in the event of any contradiction arising therefrom, authority deciding the issue of age may refer the matter to a duly constituted medical board which, in turn, would record its findings and submit to the Juvenile Justice Board. There are discrepancies in the certificates on record disclosing the date of birth of the respondent. There is no good reason why the matter should not be referred to a duly constituted medical board which shall, in turn, record its findings and submit to the Juvenile Justice Board. The word “may” should be read as “shall” having regard to the very object of sub-rule (3) of Rule 74. [Para 38][380-F-G; 381-BC]
2. The plain reading of Section 8 of the Act, 2013 indicates that whenever a claim of juvenility is raised before any court or the court is of the opinion that the accused person was a juvenile on the date of the commission of the offence, then it is mandatory for the court to make an inquiry and in the course of such inquiry, the court may take such evidence as may be necessary, however, not an affidavit, so as to determine the age of such person. 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. Section 48 talks about a competent authority, whereas, Section 8 of the Act 2013, is in respect to the court. However, what is relevant to note is that in both the Sections i.e., Section 8 as well as Section 48 the word ‘shall’ has been used. [Paras 42 & 44][383-B-D; 383-H; 384-A]
3. 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. However, when an accused commits a heinous and grave crime like the one on hand and thereafter attempts to take the statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of a common man in the institution entrusted with the administration of justice. [Para 72][399-G-H; 400-A]
4. There is no good reason why this Court should overlook or ignore or doubt the credibility of the final opinion given by a team of five qualified doctors, one from the Department of Physiology, one from the Department of Anatomy, one from the Department of Oral Diagnosis, one from the Department of Forensic Medicine and one from the Department of Radio Diagnosis, all saying in one word that on the basis of the physical, dental and radiological examination, the approximate age of the respondent could be fixed between 19 and 23 years. Nothing much has been said on behalf of the respondent accused in regard to the credibility of the medical report prepared by the Special Medical Board constituting of five medical experts. The only argument is that ignore the medical report as there is proof of the date of birth to be found in the various documents on record. The documents evidencing date of birth does not inspire any confidence and there is no other option but to fall back on the report of the Special Medical Board in the interest of justice. [Paras 74 & 77][400-G; 401-F-G]
Bachahan Devi v. Nagar Nigam, Gorakhpur (2008) 12 SCC 372 : [2008] 2 SCR 424; Rishipal Singh Solanki v. State of U.P. (2022) 8 SCC 602; Parag Bhati v. State of U.P., (2016) 12 SCC 744 : [2016] 2 SCR 1089- relied on.
Ramdeo Chauhan alias Raj Nath v. State of Assam (2001) 5 SCC 714 : [2001] 3 SCR 669; Ashwani Kumar Saxena v. State of Madhya Pradesh (2012) 9 SCC 750 : [2012] 10 SCR 540; Darga Ram alias Gunga v. State of Rajasthan (2015) 2 SCC 775 : [2015] 1 SCR 350; Dhampur Sugar Mills Ltd. v. State of U.P. (2007) 8 SCC
338 : [2007] 10 SCR 245; Mukarrab v. State of Uttar Pradesh (2017) 2 SCC 210 : [2016] 8 SCR 557;
Sanjeev Kumar Gupta v. State of Uttar Pradesh (2019)
12 SCC 370 : [2019] 9 SCR 735; Abuzar Hossain @ Gulam Hossain v. State of West Bengal (2012) 10 SCC
489 : [2012] 9 SCR 244; Ashwani Kumar Saxena v. State of Madhya Pradesh (2012) 9 SCC 750 : [2012]
10 SCR 540; Babloo Pasi v. State of Jharkhand, (2008)
13 SCC 133 : [2008] 14 SCR 161; Arnit Das v. State of Bihar, (2000) 5 SCC 488 : [2000] 1 Suppl. SCR 69; Jitendra Ram alias Jitu v. State of Jharkhand, (2006) 9 SCC 428 : [2006] 1 Suppl. SCR 286; Om Prakash v. State of Rajasthan (2012) 5 SCC 201 : [2012]5
SCR 237- referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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