Babloo Pasi vs State Of Jharkhand & Anr

the judgment and order dated 21st December, 2006

rendered by the High Court of Jharkhand at Ranchi in

Criminal Revision No. 836 of 2006. By the impugned

order, the High Court has allowed the revision petition

preferred by the accused under Section 53 of the

Juvenile Justice (Care and Protection of Children) Act,

1 2000 (for short `the Act') against the order passed by

the Juvenile Justice Board, Dumka (hereinafter referred

to as `the Board'). The learned Single Judge has held

that on the date of commission of the alleged offences,

the accused was a "juvenile" within the meaning of the

Act.

3. Rajesh Mahatha, the accused and respondent No.2 in

this appeal, was apprehended for having committed

offences under Sections 304B and 306 of the Indian

Penal Code, 1860 (for short `I.P.C.'), in relation to

the death of his wife, on the basis of the statement

made to the police by the brother of the deceased, the

appellant herein. It appears that when the accused was

produced before the Chief Judicial Magistrate, Deoghar,

he claimed himself to be a "juvenile" as having not

attained the age of eighteen years and, therefore,

entitled to the protection and privileges under the

Act. Accordingly, he was sent to the Child

Rehabilitation Centre, Dumka. Since the claim of the

accused was disputed on behalf of the prosecution, on

8th February, 2006, the Chief Judicial Magistrate

directed the accused to produce evidence/certificate in

support of his claim, which he failed to do. It seems

2 that without recording any opinion whether the accused

was a Juvenile or not, the Magistrate referred him to

the Board. Since the accused failed to produce any

evidence regarding his age, the Board referred him to a

Medical Board for examination and determination of his

age. Taking into consideration, the documentary

evidence adduced by the prosecution and observing his

physical built up, the Board concluded that the accused

was above eighteen years of age on the date of

occurrence; was not a juvenile and, therefore, was not

required to be dealt with under the Act. Accordingly,

the Child Rehabilitation Centre, Dumka was directed to

transfer the accused to the regular jail with a

direction to its Superintendent to produce the accused

before the Court of Chief Judicial Magistrate. The

order passed by the Board was challenged by the accused

in the High Court. The High Court was of the view that

the Board had ignored the opinion of the Medical Board

obtained in terms of Rule 22(5)(iv) of the Jharkhand

Juvenile Justice (Care and Protection of Children)

Rules, 2003 (for short `the Rules'), wherein the age of

the accused was shown as 17-18 years. Thus, exercising

its revisional jurisdiction, the High Court allowed the

revision petition; quashed the order of the Board and

3 held that at the relevant time the accused was a

juvenile. The brother of the victim has preferred this

appeal by special leave.

4. We have heard learned counsel for the parties.

5. Learned counsel appearing for the appellant

submitted that the order of the High Court having been

passed without notice to the appellant, who was

admittedly a party in the revision petition, is

violative of the principles of natural justice as also

the statutory provisions, is illegal and deserves to be

set aside on this short ground alone. In support of

the proposition that an adverse order cannot be passed

without hearing the party concerned, reliance was

placed on a decision of this Court in P. Sundarrajan &

Ors. Vs. R. Vidhya Sekar1. On merits, it was contended

that the High Court has failed to consider in its

correct perspective the scope of Rule 22 (5).

According to the learned counsel, the medical opinion

obtained under the said rule is only a guiding factor

and not the sole criterion for determination of age

and, therefore, before returning any finding on the age

of the accused, the High Court could not ignore other

1 (2004) 13 SCC 472

4 relevant factors and the evidence on record. It was

also pleaded that the scope of the revisional

jurisdiction being limited, without pointing out any

material irregularity committed by the Board, the High

court erred in interfering with a well reasoned order

passed by the Board, more so when the accused chose not

to avail of remedy available to him by way of an appeal

under Section 52 of the Act, whereunder the

jurisdiction of the High Court is much wider. In

support of the contention that the powers of the

revisional court are limited and should be exercised

sparingly and cautiously, reliance was placed on the

decisions of this court in Krishnan & Anr. Vs.

Krishnaveni & Anr.2, State of Maharashtra & Anr. Vs.

Jagmohan Singh Kuldip Singh Anand & Ors.3. Reference

was also made to State of A.P. Vs. M. Poshetty4,

wherein this Court had adversely commented on High

Court's interference with the concurrent findings of

fact, entered by the trial court, in exercise of

revisional powers, without recording any reasons. It

was, thus, argued that the High Court exceeded its

powers of revisionary jurisdiction.

2

(1997) 4 SCC 241 3 (2004) 7 SCC 659 4 (2001) 10 SCC 629

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6.Learned counsel appearing on behalf of the accused

while strenuously supporting the order passed by the

High Court submitted that since the entire relevant

material was available on record, there was no

necessity for the High Court to issue notice to the

appellant/complainant.

7. Having bestowed our anxious consideration to the

material on record, in our judgment, the order of the

High Court as also by the Board are unsustainable in

law as well as on facts.

8. Section 52 of the Act provides that any person

aggrieved by an order made by a competent authority

under the Act may prefer an appeal to the Court of

Sessions. Section 53 of the Act confers on the High

Court the revisional jurisdiction to satisfy itself as

to the legality or propriety of any order passed by the

competent authority or Court of Sessions. The Section

reads as under:

"53.Revision.- The High Court may, at any time, either of its own motion or on an application received in this 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

6 such order and may pass such order in relation thereto as it thinks fit:

Provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard."

9. From a bare reading of proviso to the Section, it

is plain that in exercise of its revisional

jurisdiction the High Court cannot pass an order,

prejudicial to any person without affording him a

reasonable opportunity of being heard. At this

juncture, it would be profitable to note that Section

54 of the Act also prescribes the procedure to be

followed while dealing with inquiries, appeals and

revisions under the Act. Sub-section (2) thereof

stipulates that save as otherwise expressly provided

under the Act, the procedure to be followed in hearing

revisions under the Act, shall be as far as practicable

in accordance with the provisions of the Code of

Criminal Procedure, 1973 (for short `the Code'). Sub-

section (2) of Section 401 of the Code contemplates

that no order under the said Section shall be made to

the prejudice of the accused or other person unless he

has had an opportunity of being heard either personally

or by pleader in his own defence.

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10.Furthermore, by now it is well settled that save in

certain exceptional situations, the principle of audi

alteram partem mandates that no one shall be condemned

unheard. It is a part of rules of natural justice and

the soul of natural justice is `fair play in action',

which demands that before any prejudicial or adverse

order is passed or action is taken against a person, he

must be given an opportunity to be heard.

11.The question for consideration is that when the

statutory provisions mandate and principles of natural

justice demand a pre-decisional hearing, whether or not

the High Court was justified in not granting an

opportunity of hearing to the appellant/complainant?

In our opinion, having regard to the nature of

controversy before the High Court and the scheme of the

relevant statutory provisions whereunder the High Court

was exercising its jurisdiction, the `fairness in

action' did demand that the Complainant was given an

opportunity of hearing in the Revision petition

preferred by the accused. Moreover, he was impleaded

as a party respondent and was obviously prejudiced by

the order passed by the High Court when the accused was

declared to be a juvenile. We have, therefore, no

8 hesitation in holding that the High Court was clearly

in error in reversing the order passed by the Board

without giving an opportunity of hearing to the

appellant. Accordingly, we uphold the contention of

learned counsel for the appellant that the order of the

High Court deserves to be set aside on this short

question alone.

12.We may now take up the pivotal point, viz., whether

or not the Board had applied the correct parameters for

determining the age of the accused, who is claiming to

be a juvenile on the date of occurrence. Determination

of age of a delinquent, particularly in borderline

cases, is rather a complex exercise. The Act as such

does not lay down any fixed norms, which could be

applied for determining the age of a person. Sub-

Section (1) of the Act provides for presumption and

determination of age and reads thus:

"49. Presumption and determination of age.-(1) Where it appears to a competent authority that person brought before it under any of the provisions of this 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

9 juvenile or the child or not, stating his age as nearly as may be.

(2) xxx xxx xxx"

13.From a bare reading of the provision, it is clear

that it merely provides that when it appears to the

competent authority viz., the Board, that the person

brought before it is a juvenile, The Board is obliged

to make an enquiry as to the age of that person; for

that purpose it shall take evidence as may be necessary

and then record a finding whether the person in

question is a juvenile or not. Explaining the scope

and purpose of Section 32 of the Juvenile Justice Act,

1986 which is almost pari materia with Section 49 of

the Act in Bhola Bhagat Vs. State of Bihar5, this Court

had observed as under:-

".....when a plea is raised on behalf of an accused that he was a "child" within the meaning of the definition of the expression under the Act, it becomes obligatory for the court, in case it entertains any doubt about the age as claimed by the accused, to hold an inquiry itself for determination of the question of age of the accused or cause an enquiry to be held and seek a report regarding the same, if necessary, by asking the parties to lead evidence in that regard. Keeping in view the beneficial nature of the socially- oriented legislation, it is an obligation of the court where such a plea is raised to 5 (1997) 8 SCC 720

1 examine that plea with care and it cannot fold its hands and without returning a positive finding regarding that plea, deny the benefit of the provisions to an accused. The court must hold an enquiry and return a finding regarding the age, one way or the other."

14. Nevertheless, in Jitendra Ram alias Jitu Vs. State

of Jharkhand6, the Court sounded a note of caution that

the aforestated observations in Bhola Bhagat (supra)

would not mean that a person who is not entitled to the

benefit of the said Act would be dealt with leniently

only because such a plea is raised. Each plea must be

judged on its own merit and each case has to be

considered on the basis of the materials brought on

record.

15.At this juncture, it is relevant to note that in

exercise of power conferred by Section 68 of the Act,

the State Government of Jharkhand has framed the

Jharkhand Juvenile Justice (Care and Protection of

Children) Rules, 2003. Rule 22 thereof lays down the

procedure to be followed by a Board in holding

enquiries and the determination of age. Sub-Rule (5)

of the said Rule which is material for the present case

reads thus:-

6

(2006) 9 SCC 428

1 "22. Procedure to be followed by a Board in holding inquiries and the determination of age.- (1) .........

(5) In every case concerning a juvenile or a child, the Board shall either obtain.-

(i) a birth certificate given by a corporation or a municipal authority; or

(ii) a date of birth certificate from the school first attended; or

(iii)matriculation or equivalent certificates, if available; and

(iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, (regarding his age and, when 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)."

16.Thus, as per Rule 22, in the absence of birth or

matriculation certificates, in order to record a

finding in respect of age of a person, the Board is

required to obtain the opinion of a duly constituted

Medical Board. It is clear from a bare reading of the

Rule that although the Board is bound to obtain the

opinion of the Medical Board but the opinion per se is

not a conclusive proof of age of the person concerned.

1 It is no more than an opinion. More so, when even the

Medico-Legal opinion is that owing to the variation in

climatic, dietic, hereditary and other factors,

affecting the people of different States in the

country, it would be imprudent to formulate a uniform

standard for the determination of the age. True, that

a Medical Board's opinion based on the radiological

examination is a useful guiding factor for determining

the age of a person but is not incontrovertible.

Commenting on the evidentiary value of the opinion of a

doctor, based on x-ray tests, as to the age of a

person, in Ramdeo Chauhan alias Raj Nath Vs. State of

Assam7, R.P. Sethi, J., speaking for the majority in a

three-Judge Bench, had observed that:-

"....An X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate a test as to indicate the exact date of birth of the person concerned. Too much of reliance cannot be placed upon textbooks, on medical jurisprudence and toxicology while determining the age of an accused. In this vast country with varied latitudes, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform."

7 (2001) 5 SCC 714

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17.It is well settled that it is neither feasible nor

desirable to lay down an abstract formula to determine

the age of a person. The date of birth is to be

determined on the basis of material on record and on

appreciation of evidence adduced by the parties.

The 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 cogent evidence.

18.It is true that in Arnit Das Vs. State of Bihar8,

this Court has, on a review of judicial opinion,

observed that while dealing with a question of

determination of age of an accused, for the purpose of

finding out whether he is a juvenile or not, a hyper-

technical approach should not be adopted while

appreciating the evidence adduced on behalf of the

accused in support of the plea that he was a juvenile

and if two views may be possible on the same evidence,

the Court should lean in favour of holding the accused

to be a juvenile in borderline cases. We are also not

oblivious of the fact that being a welfare legislation,

the Courts should be zealous to see that a juvenile

derives full benefits of the provisions of the Act but

8 (2000) 5 SCC 488

1 at the same time it is also imperative for the courts

to ensure that the protection and privileges under the

Act are not misused by unscrupulous persons to escape

punishments for having committed serious offences.

19.Bearing in mind these broad principles, we may now

advert to the facts at hand. Indubitably, neither a

date of birth certificate nor a matriculation or

equivalent certificate from a school was produced

before the Board and, therefore, the Board was required

to obtain a medical opinion of a duly constituted

Medical Board, which was done. The Medical Board

carried out the ossification tests of the accused and

opined that his age was between 17-18 years.

Therefore, with a margin of one year, as stipulated in

Rule 22(5)(iv), his age could also be 16 years or 19

years. In addition to the said opinion, the prosecution

also placed before the Board, a Voters List of the

Constituency of Deoghar for the year 2005. In that

list, the name of the accused appeared at Sl. No. 317

and his age was recorded as 20 years. Taking into

consideration this material and the physical appearance

of the accused, the Board opined as under:-

1

"Applicant Rajesh Mahatha is present before the Juvenile Justice Board. By observing his physical built up, it appears that he is an adult. Also in the medical examination report his age has been shown as 17-18 years. His adulthood can be verified from the Voter List 2005 where the applicant age has been shown as 20 years. It is also the opinion of the other Board members that the applicant Rajesh Mahatha appears to be adult and in the background of the date of the incident he was an adult.

Therefore, by the concurring opinion of the members of the Board, it is declared that Rajesh Mahatha the accused applicant is an "adult" of more than 18 years of age in the background of the date of the occurrence of the incident."

20.As noted supra, the High Court has reversed the

opinion of the Board. The relevant portion of the High

Court's order reads thus:-

"Having regard to the facts and circumstances of the case, I find that Jharkhand Juvenile Justice (Care and Protection of Children) Rules 2003 has devised Rule 22 being the procedure to be followed by the Juvenile Justice Board in holding enquiry in determination of the age of a Juvenile Rule 22 (5) (iv) provides that the opinion of the Medical Board, duly constituted, would be the guiding factor in determination of the age of a Juvenile, subject to margin of one year in absence of the birth certificate of Juvenile in conflict with law. I find that the said provision of Rule has been ignored by the Juvenile Justice Board as well as by the Session Court.

1 In the circumstance, the order impugned passed by the Juvenile Justice Board on 3.6.2006 whereby and whereunder the age of the petitioner was determined more than 18 years is set aside and the 1st Addl. Sessions Judge, Deoghar is directed to pass appropriate order returning back the records of the Juvenile to the Juvenile Justice Board in accordance with law as early as possible."

21.From the afore-extracted orders of the Board as well

as the High Court, it is manifest that the question of

determination of age of the accused has been decided by

both the Courts in a casual manner, ignoring the

principles of law on the subject.

22.Insofar as the Board is concerned, it is evident that

it has mechanically accepted the entry in Voters List

as conclusive without appreciating its probative value

in terms of the provisions of Section 35 of the Indian

Evidence Act, 1872. Section 35 of the said Act lays

down that an entry in any public or other official

book, register, record, stating a fact in issue or

relevant fact made by a public servant in the discharge

of his official duty especially enjoined by the law of

the country is itself a relevant fact. It is trite

that to render a document admissible under Section 35,

three conditions have to be satisfied, namely: (i)

1 entry that is relied on must be one in a public or

other official book, register or record; (ii) it must

be an entry stating a fact in issue or a relevant fact,

and (iii) it must be made by a public servant in

discharge of his official duties, or in performance of

his duty especially enjoined by law. An entry relating

to date of birth made in the school register is

relevant and admissible under Section 35 of the Act but

the entry regarding the age of a person in a school

register is of not much evidentiary value to prove the

age of the person in the absence of the material on

which the age was recorded. (See: Birad Mal Singhvi Vs.

Anand Purohit9)

23.Therefore, on facts at hand, in the absence of

evidence to show on what material the entry in the

Voters List in the name of the accused was made, a mere

production of a copy of the Voters List, though a

public document, in terms of Section 35, was not

sufficient to prove the age of the accused. Similarly,

though a reference to the report of the Medical Board,

showing the age of the accused as 17-18 years, has been

made but there is no indication in the order whether

9 1988 (Supp) SCC 604

1 the Board had summoned any of the members of the

Medical Board and recorded their statement. It also

appears that the physical appearance of the accused,

has weighed with the Board in coming to the afore-noted

conclusion, which again may not be a decisive factor to

determine the age of a delinquent. Insofar as the High

Court is concerned, there is no indication in its order

as to in what manner Rule 22(5)(iv) has been ignored by

the Board. The learned Judge seems also to have

accepted the opinion of the Medical Board in terms of

the said Rule as conclusive. Therefore, the afore-

stated ground on which the High Court has set aside the

opinion of the Board and holding the accused to be a

juvenile, cannot be sustained.

24.In our judgment, apart from the fact that the

impugned order suffers from the basic infirmity of

being violative of the principles of natural justice,

it cannot be sustained on merits as well. At the same

time, we are also convinced that the order of the Board

falls short of a proper enquiry as envisaged in Section

49 of the Act.

25.For the aforementioned reasons, the appeal is

allowed and the matter is remitted to the Chief

1 Judicial Magistrate, Deoghar, heading the Board, with a

direction to re-determine the age of the accused, as on

the date of commission of the alleged offences, in

accordance with law, enunciated above. In the event he

is found to be a juvenile within the meaning of the

Act, he shall be dealt with accordingly. However, if

he is not found to be a juvenile, he would face trial

under the ordinary criminal law. The inquiry shall be

completed expeditiously, preferably within six months

of receipt of a copy of this judgment.

.....................J. (C.K. THAKKER)

.....................J. (D.K. JAIN) NEW DELHI;

OCTOBER 3, 2008.

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