SEC 94 JJ
Ram Vijay Singh Vs. State Of Uttar Pradesh, SC 2021
FACTS – The appellant filed an application for bail, interalia, on the ground that he was juvenile on the date of incident i.e.20.7.1982. In support of plea of juvenility, the appellant relied upon family register maintained by the Panchayat, Aadhaar Card and an order passed by the High Court in the year 1982. In the said order, the High Court had granted bail on the basis of the report of the Radiologist that the age of the appellant at that time was between 15½ – 17½ years. The appellant has further stated that he had moved criminal miscellaneous application raising a claim of him being a juvenile at the time of commission of offence before the High Court but the said application was not decided and the appeal has been dismissed on merits.
CAUSE– Order passed by the High Court of Judicature at Allahabad.Vide the said order, the appeal filed by the appellant against his conviction for an offence under Section 302 read with Section 34 of the Indian Penal Code, 18601was dismissed.
ARGUMENTS – Learned senior counsel appeared on behalf of the appellant, argued that the accused was given bail by the High Court keeping in view his age as 15½ – 17½ years in the year 1982. Therefore, the appellant has to be treated as a juvenile in the light of the said order. It was contended that even considering the maximum age as 55 years as per the Medical Report now submitted, the appellant would still be less than 18 years on the date of incident. It was also argued that procedure as contained in Rule 12(3)(b) of the Rules is now part of Section 94 of the Act. Therefore, once the statute has provided ossification test as the basis of determining juvenility, the findings of such ossification test cannot be ignored.
Counsel for the State on the contrary, argued that procedure as provided under Rule 12(3)(b) of the Rules is not materially different from that contained in the Statute. In fact, the discretion given to the Court to lower the age by one year in the Rules has been omitted. He further relied upon a judgment of this Court in Mukarrab wherein it has been held that the Courts have observed that the evidence afforded by radiological examination is a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances. It was further held that the ossification test cannot be regarded as conclusive when the appellants have crossed the age of thirty years which is an important factor to be taken into account as age cannot be determined with precision.
ISSUE – Whether the accused can be treated as a juvenile or not?
DECISION – There is no dispute that the plea of juvenility can be raised at any stage even after finality of the proceedings before this Court. Inthe present case, the appellant has raised the plea of juvenility be-fore the High Court vide Criminal Miscellaneous Application.
This Court in a judgment reported as Abuzar Hossain alias Gulam Hossain v. State of West Bengal held as under:“A claim of juvenility may be raised at any stage even after the final disposal of the case. It may be raised for the first time before this Court as well after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in the appeal court.”
Section 7-A of the Juvenile Justice (Care and Protection of Children)Act, 2000 contemplated that whenever a claim of juvenility is raised before any Court, the Court shall make an inquiry and take such evidence as may be necessary. In terms of the provisions of the 2000 Act, the Juvenile Justice (Care and Protection of Children)Rules, 2007 have been framed. Rule 12 of the Rules contemplates a procedure to be followed for determination of age. The 2000 Act has been repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015.Section 9(2) of the Act is the analo- gous provision to Section 7-A of the 2000 Act. The procedure for determining the age is now part of Section 94 of the Act which was earlier part of Rule 12 of the Rules.
The judgment in Abuzar Hossain considered Section 7-A of the Act and Rule 12 of the Rules. A perusal of Rule 12(3)(b) of the Rules shows that in the absence of documents as mentioned in clause (i), (ii) or (iii), the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juve-nile or child. It was further provided that in case wherein the exact assessment of the age cannot be done, the Court or the JuvenileJustice Board, if considered necessary, give benefit to the child orjuvenile by considering his/her age on lower side within the marginof one year.
Admittedly, in the present case, there is no Date of Birth Certificate from the school or matriculation or equivalent certificate or a Birth Certificate given by a Corporation or Municipal Authority or Panchayat. Therefore, clause (iii) of Section 94(2) of the Act to determine the age by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board comes into play.
We do not find any merit in the arguments advanced by the appellant. The medical report in support of the bail order is not avail-able. Such order granting bail cannot be conclusive determination of age of the appellant. It was an interim order of bail pending trial but in the absence of a medical report, it cannot be conclusively held that the appellant was juvenile on the date of the incident.
There are minor variations as the Rule 12(3)(a)(i) and (ii) have been clubbed together with slight change in thelanguage. Section 94 of the Act does not contain the provisions regarding benefit of margin of age to be given to the child or juve-nile as was provided in Rule 12(3)(b) of the Rules. The importance of ossification test has not undergone change with the enactment of Section 94 of the Act. The reliability of the ossification test remains vulnerable as was under Rule 12 of the Rules.
As per the Scheme of the Act, when it is obvious to the Committee or the Board, based on the appearance of the person, that the said person is a child, the Board or Committee shall record observations stating the age of the Child as nearly as may be without waiting for further confirmation of the age. Therefore, the first attempt to determine the age is by assessing the physical appearance of the person when brought before the Board or the Committee. It is only in case of doubt, the process of age determination by seeking evidence becomes necessary. At that stage, when a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person is around 40-55 years of age, the structure of bones cannot be helpful in determining the age.
Thus, when the ossification test cannot yield trustworthy and reliable results, such test cannot be made a basis to determine the age of the person concerned on the date of incident. Therefore, in the absence of any reliable trustworthy medical evidence to find out age of the appellant, the ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.
Apart from the said fact, there is an application submitted by the appellant himself for obtaining an Arms Licence prior to the date of the incident. In such application, he has given his date of birth as 30.12.1961 which would make him of 21 years of age on the date of the incident i.e. 20.7.1982. The Court is not precluded from taking into consideration any other relevant and trustworthy material to determine the age as all the three eventualities mentioned in sub-section (2) of Section 94 of the Act are either not available or are not found to be reliable and trustworthy. Since there is a document signed by the appellant much before the date occurrence, therefore, we are of the opinion that the appellant cannot be treated to be juvenile on the date of incident as he was more than 21 years of age as per his application submitted to ob- tain the Arms Licence.