Gaurav Kumar @ Monu vs The State Of Haryana

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.283-285 OF 2019 (arising out of SLP(CRL.) No.2366-2368 of 2015)

GAURAV KUMAR @ MONU ....APPELLANT(S)

VERSUS

THE STATE OF HARYANA ....RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

Leave Granted.

2. These appeals have been filed by the appellant

challenging the Order dated 30.01.2015 passed by

the Punjab & Haryana High Court dismissing three

applications as withdrawn filed in Criminal Appeal

No. 937 of 2002. Brief facts necessary to be

noticed for deciding these appeals are: -

3. The F.I.R. dated 24.05.2000 was registered

under Section 323, 506, 148, 149, 170, 171 & 302 Signature Not Verified Digitally signed by ARJUN BISHT IPC against the appellant and other accused. The Date: 2019.02.16 10:43:40 IST Reason:

accused including the appellant were tried by

Additional Sessions Judge, Hisar in Criminal Case 2

No. 127 S.C. of 2005. The date of incident is

intervening night of 23rd/24th May, 2000, in which

incident one Sher Singh was beaten, who was taken

to the hospital and after recording of his

statement he died. The Sessions Judge vide his

judgment and order dated 12.11.2002 convicted the

appellant and one Hans Raj under Section 302 IPC

read with Section 34 IPC by Order dated 14.11.2002

and both were sentenced for life with fine of

Rs.500/-. Criminal Appeal No.937 of 2002 was filed

by the appellant against the Order of conviction

and sentence in the High Court of Punjab & Haryana.

One of the grounds taken in the appeal was that

appellant was less than 18 years of age on the date

of incident. The High Court vide Order dated

24.03.2003 while issuing notice on the application

for bail ordered that in the meanwhile a report of

the learned Sessions Judge, Hisar be called as to

whether Gaurav Kumar applicant was a Juvenile on

the date of commission of offence and on the date

of framing of charge. Learned Sessions Judge

conducted an inquiry in which oral as well as 3

documentary evidence was taken from both the

parties. Before the Sessions Judge the statement of

Davender s/o Hari Singh father of appellant was

also recorded who also was cross examined. On

behalf of the appellant a certificate from the

Principal of St. Kabir School, Hisar was submitted

wherein date of birth of Gaurav was recorded as

17.08.1982. A mark sheet issued by National Open

School, New Delhi of Secondary School Examination

of Gaurav Ghatarwal was also submitted wherein date

of birth was recorded as 17.08.1982. The State

submitted Birth Certificate exhibit R-1 issued by

the Registrar (Birth & Death) (Municipal Council,

Haansi) where date of birth of son of Devender and

Indu is recorded as 17.08.1981. The District &

Sessions Judge, Hisar after considering the

materials received in the inquiry including the

oral evidence of father of the appellant held that

date of birth of the appellant is 17.08.1981,

hence, on the night intervening 23rd/24th May 2000,

the applicant-appellant Gaurav Kumar was more than

18 years of age. The report was submitted to the 4

High Court. Criminal Misc. Application No.20593 of

2014 was filed by the appellant under Section 391

read with Section 482 Cr.P.C. for placing on record

the secondary/matriculation certificate of National

Open School, Government of India New Delhi dated

23.05.2000, migration certificate of National Open

School Government of India New Delhi dated

01.08.1999 and identity card of the appellant

issued by the National Open University as

additional evidence for taking the plea of

applicant-appellant being juvenile on the date of

the incident 24.05.2000. Another Criminal

Application No. 3118 of 2015 in Criminal Misc.

Application No.26949 of 2014 for placing on record

additional affidavit of the appellant and also for

placing on record true copy of Ration Card and for

exemption from filing certified copy of Annexure A-

10. Criminal Application No. 20593 of 2014 came for

consideration before the High Court on 30.01.2015.

The High Court noticed the report dated

08/09.05.2003 sent from District and Sessions

Judge, Hisar holding that Gaurav Kumar applicant 5

was more than 18 years of age on the date of

commission of offence. The High Court took into the

consideration the birth certificate issued by

Registrar (Birth & Death), Haansi where date of

birth of appellant son of Davender and Indu was

recorded as 17.08.1981. In view of the report of

District and Sessions Judge, Learned Counsel for

the applicant-appellant submitted before the High

Court that he does not press the applications. The

applications, thus, were dismissed as withdrawn.

4. In view of Order passed in Application No.

20593 of 2014 learned counsel for applicant-

appellant did not press other criminal

miscellaneous applications which were also

dismissed as withdrawn by Order dated 30.01.2015.

5. These appeals have been filed by appellant

against the order dated 30.01.2015 of the High

Court by which order the applications filed by the

applicant-appellant were dismissed as withdrawn.

6. Shri Neeraj Jain, learned senior Advocate

appearing for the appellant submits that appellant

has right to raise the issue of juvenility at any 6

stage, hence, even if his applications for

submitting additional evidence in support of his

case of juvenility, has been dismissed as

withdrawn, he still can raise the issue in this

Court in the present appeal. He further submits

that the certificate filed from Sant Kabir School,

Hisar was a relevant certificate which ought to

have been relied by District Judge in his report.

He submits that learned Sessions Judge erred in

relying on birth certificate in which son has been

born to Davender on 17.08.1981 has been recorded.

7. Learned Counsel for the appellant has placed

reliance on Rule 12 of Juvenile Justice (Care and

Protection of Children) Rules, 2007. He submits

that Rule 12 deals with the procedure to be

followed in determination of age. He submits that

by virtue of Rule 12(3) the date of birth

certificate from the school first attended was to

be preferred than the birth certificate given by

Corporation or Municipal Authority, or a Panchayat.

He submits that school certificate relied by

appellant was to be preferred by statutory 7

provisions, hence, the report of District Judge

relying on birth certificate given by Corporation

was erroneous. In support of his submission he has

placed reliance on judgment of this Court in

2011(13) SCC 751, Shah Nawaz versus State of Uttar

Pradesh and another, and Judgment of this Court in

2012(10) SCC 489, Abuzar Hossain alias Gulam

Hossain versus State of West Bengal.

8. Learned counsel appearing for the State has

refuted the submission of the appellant and submits

that District & Sessions Judge has after due

inquiry held that appellant was not Juvenile on the

date of occurrence. He submits that no error has

been committed by District & Sessions Judge on

relying on the birth certificate issued by

Registrar (Birth & Death). He submits that the

certificates which were sought to be submitted in

the additional evidence were not pressed before the

High Court. The appellant himself having withdrawn

his applications for filing additional evidence has

virtually accepted the report of District and

Sessions Judge and cannot be allowed to challenge 8

the same in this Court.

9. We have considered the submissions of learned

counsel to the parties and perused the record.

10. Even though applicant-appellant has withdrawn

his application filed in the High Court for placing

certain additional evidence to question the report

submitted by District and Sessions Judge, we

proceed to examine the submissions raised by

learned counsel for the appellant on merits. The

main thrust of the submission of learned counsel of

the appellant is based on Rule 12 of 2007 Rules.

Rule 12(3) on which reliance is placed is as

follows: -

"12. Procedure to be followed in determination of age. -

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play 9

school) first attended;

and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either(i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.

In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while 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 and either of the evidence specified in any of the clauses

(a)(i), (ii), (iii) or in the absence whereof, clause(b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.” 10

11. This Court in Shah Nawaz case had considered

Rule 12 of 2007 Rules and has held that preference

has been given to the school certificate over the

medical report. In paragraph 26, following has been

laid down: -

"26. We are also satisfied that Rule 12 which was brought in pursuance of the Act describes four categories of evidence which have been provided in which preference has been given to school certificate over the medical report.”

12. A Three-Judge Bench in Abuzar Hossain (Supra)

while considering Rule 12 laid down following: -

"39.3.As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement 11

recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters' list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh and Pawan these documents were not found prima facie credible while in Jitendra Singh the documents viz. School leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7-A and order an enquiry for determination of the age of the appellant.”

13. In his concurring opinion Justice T.S.Thakur

while elaborating Rule 12 laid down following:-

"43.2. The second factor which must ever remain present in the mind of the Court is that the claim of juvenility may at times be made even in cases where the accused does not have any evidence showing his date of birth by reference to any public document 12

like the Register of Births and Deaths maintained by the municipal authorities, panchayats or hospitals nor any certificate from any school, as the accused was never admitted to any school. Even if admitted to a school no record regarding such admission may at times be available for production in the court. Again, there may be cases in which the accused may not be in a position to provide a birth certificate from the corporation, the municipality or the panchayat, for we know that the registration of births and deaths may not be maintained and if maintained may not be regular and accurate, and at times truthful.

44. Rule 12(3) of the Rules makes only three certificates relevant. These are enumerated in sub-rules 3(a)(i) to (iii of the Rule which reads as under:-

“(3)(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;” 13

Non-production of the above

certificates or any one of them is not, however, fataal to the claim of juvenility, for sub-rule(3)(b) to Rule 12 makes a provision for determination of the question on the basis of the medical examination of the accused in the “absence” of the certificates.”

14. The submission of learned counsel for the

appellant was that school certificate filed by him

with date of birth 17.08.1982 was not even

challenged, hence, on the strength of Rule 12 the

said certificate ought to have been accepted by the

learned Sessions Judge.

15. The submissions raised by learned counsel for

appellant based on Rule 12(3) of 2007 Rules could

have been considered by us in detail but we notice

that in the present case, there is no applicability

of Rule 12 of 2007 Rules. The date of occurrence in

the present case is 23/24.05.2000 on which date

Rule 2007 were not enforced. Even on the date when

learned District and Sessions Judge submitted his

report 08.05.2003 after holding inquiry, Rule 2007

was not in force. Rule 100 of 2007 Rules repealed 14

the earlier Rule of Juvenile Justice (Care and

Protection of Children) Rules, 2001. Rule 100 of

2007 Rules is as follows: -

"100. Repeal. - The Juvenile Justice (Care and Protection of Children) Rules, 2001, notified vide F.No.1-3/2001-SD, dated the 22nd June, 2001 in the Gazette of India, Extraordinary, Part I, Section 1 of the same date is hereby repealed.”

16. Thus, the relevant Rule occupying the field in

the present case were 2001 Rules. Rule 22 of 2001

Rules dealt with “procedure to followed by a board

in the holding inquiry in the determination of

age.” Rule 22 sub-sub-Rule (5) which is relevant

for the present case is as follows: -

"22(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;

(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 15

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.”

17. We are of the view that the relevant Rules

which were required to be looked into are the

Juvenile Justice (Care and Protection of Children)

Rules, 2001.

18. The High Court had no occasion to consider the

issue since the appellant has not pressed the

issue before the High Court, we are of the view

that it shall be appropriate that the High Court

be requested to consider the question of

juvenility of the appellant afresh before

proceeding to decide the appeal.

19. The interest of justice be served by setting

aside the order dated 30.01.2015 passed by the 16

Punjab and Haryana High Court and remit the

question of juvenility to the High Court for

consideration. The High Court before deciding the

appeal on merit may consider the question of

juvenility on the basis of the relevant materials

on record. The documents which were sought to be

submitted before the High Court by the appellant

be also taken on record and the High Court may

reconsider the issue on the basis of materials on

record as well as the report of the Sessions Judge

which was sought by the High Court. The order

dated 30.01.2015 passed by the High Court is set

aside. The appeals are disposed of accordingly.

...............................J. ( ASHOK BHUSHAN )

...............................J.

( K.M.JOSEPH) NEW DELHI, FEBRUARY 15, 2019.