GAURAV KUMAR @ MONU versus THE STATE OF HARYANA on 15 February 2019

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SUPREME COURT REPORTS[2019] 3 S.C.R. 372

[2019] 3 S.C.R.

GAURAV KUMAR @ MONU

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v.

THE STATE OF HARYANA

(Criminal Appeal Nos. 283-285 of 2019)

BFEBRUARY 15, 2019[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Juvenile Justice (Care and Protection of Children) Rules,C2007 – r.12 – Juvenile, on the date of occurrence – Determinationof – Applicability of r. 12 of the 2007 Rules – Held: Date ofoccurrence of the incident was 23/24.05.2000 on which date Rules2007 were not enforced – Even on the date when the Sessions Judgesubmitted his report dated 08.05.2003 after holding inquiry, Rule2007 was not in force – Rule 100 of 2007 Rules repealed the earlierDRule-2001 Rules – Thus, the relevant Rule occupying the field inthe instant case were 2001 Rules – Rule 12 of 2007 Rules is notapplicable – High Court had no occasion to consider the issuesince it was not pressed by the appellant – In the interest of justice,the High Court to consider the question of juvenility of the appellantE– Thus, the matter remitted back for consideration – Juvenile Justice(Care and Protection of Children) Rules, 2001 – r. 22.

Disposing of the appeals, the Court

HELD: 1.1 The submission of the appellant was that schoolcertificate filed by him with date of birth 17.08.1982 was not evenFchallenged, hence, on the strength of Rule 12 of the JuvenileJustice (Care and Protection of Children) Rules, 2007 the saidcertificate ought to have been accepted by the Sessions Judge.The submissions raised by the appellant based on Rule 12(3) of2007 Rules could have been considered in detail but in theGinstant case, there is no applicability of Rule 12 of 2007 Rules.The date of occurrence in the instant case is 23/24.05.2000 onwhich date Rule 2007 were not enforced. Even on the date whenDistrict and Sessions Judge submitted his report 08.05.2003after holding inquiry, Rule 2007 was not in force. Rule 100 of H

2007 Rules repealed the earlier Rule of Juvenile Justice (Careand Protection of Children) Rules, 2001. Thus, the relevant Ruleoccupying the field and required to be looked into are 2001 Rules.[Paras 14-17] [379-G, H; 380-A]

1.2 The High Court had no occasion to consider the issuesince the appellant has not pressed the issue before the HighCourt, thus, it would be appropriate that the High Court berequested to consider the question of juvenility of the appellantafresh before proceeding to decide the appeal. The interest ofjustice is served by setting aside the order passed by the HighCourt and remit the question of juvenility to the High Court forconsideration. The High Court before deciding the appeal on meritmay consider the question of juvenility on the basis of therelevant materials on record. The order passed by the High Courtis set aside. [Para 18-19] [380-G, H; 381-A-C]

Shah Nawaz v. State of Uttar Pradesh and Another(2011) 13 SCC 751 : [2011] 9 SCR 859 ;AbuzarHossain alias Gulam Hossain v. State of West Bengal(2012) 10 SCC 489 : [2012] 9 SCR 244 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 283-285 of 2019.

From the Judgment and Order dated 30.01.2015 of the High Courtof Punjab and Haryana at Chandigarh in CRM Nos.20593 of 2014,26949 of 2014 and 3118 of 2015 in Crl. Appeal No. D-937-DB/2002.

Neeraj Jain, Sr. Adv., Prem Malhotra, Adv. for the Appellant.

Sanjay Kumar Tyagi, AAG, Vishwa Pal Singh, Ajay Pal Singh,Sandeep Singh, Vishal Chauhan, Dr. Amardeep Gaur, Advs. for theRespondent.

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374SUPREME COURT REPORTS

AThe Judgment of the Court was delivered by ASHOK BHUSHAN, J. Leave Granted.

2. These appeals have been filed by the appellant challenging theOrder dated 30.01.2015 passed by the Punjab & Haryana High Courtdismissing three applications as withdrawn filed in Criminal Appeal No.B937 of 2002. Brief facts necessary to be noticed for deciding theseappeals are:-

3. The F.I.R. dated 24.05.2000 was registered under Section 323,506, 148, 149, 170, 171 & 302 IPC against the appellant and otheraccused. The accused including the appellant were tried by AdditionalCSessions Judge, Hisar in Criminal Case No. 127 S.C. of 2005. The dateof incident is intervening night of 23rd/24th May, 2000, in which incidentone Sher Singh was beaten, who was taken to the hospital and afterrecording of his statement he died. The Sessions Judge vide hisjudgment and order dated 12.11.2002 convicted the appellant and oneDHans Raj under Section 302 IPC read with Section 34 IPC by Orderdated 14.11.2002 and both were sentenced for life with fine ofRs.500/-. Criminal Appeal No.937 of 2002 was filed by the appellantagainst the Order of conviction and sentence in the High Court of Punjab& Haryana. One of the grounds taken in the appeal was that appellantwas less than 18 years of age on the date of incident. The High CourtEvide Order dated 24.03.2003 while issuing notice on the application forbail ordered that in the meanwhile a report of the learned Sessions Judge,Hisar be called as to whether Gaurav Kumar applicant was a Juvenileon the date of commission of offence and on the date of framing ofcharge. Learned Sessions Judge conducted an inquiry in which oral asFwell as documentary evidence was taken from both the parties. Beforethe Sessions Judge the statement of Davender s/o Hari Singh father ofappellant was also recorded who also was cross examined. On behalfof the appellant a certificate from the Principal of St. Kabir School,Hisar was submitted wherein date of birth of Gaurav was recorded as17.08.1982. A mark sheet issued by National Open School, New DelhiGof Secondary School Examination of Gaurav Ghatarwal was alsosubmitted wherein date of birth was recorded as 17.08.1982. The Statesubmitted Birth Certificate exhibit R-1 issued by the Registrar (Birth &Death) (Municipal Council, Haansi) where date of birth of son ofDevender and Indu is recorded as 17.08.1981. The District & Sessions H

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Judge, Hisar after considering the materials received in the inquiryincluding the oral evidence of father of the appellant held that date ofbirth of the appellant is 17.08.1981, hence, on the night intervening 23rd/24th May 2000, the applicant-appellant Gaurav Kumar was more than18 years of age. The report was submitted to the High Court. CriminalMisc. Application No.20593 of 2014 was filed by the appellant underSection 391 read with Section 482 Cr.P.C. for placing on record thesecondary/matriculation certificate of National Open School,Government of India New Delhi dated 23.05.2000, migration certificateof National Open School Government of India New Delhi dated01.08.1999 and identity card of the appellant issued by the National OpenUniversity as additional evidence for taking the plea of applicant-appellantbeing juvenile on the date of the incident 24.05.2000. Another CriminalApplication No. 3118 of 2015 in Criminal Misc. Application No.26949 of2014 for placing on record additional affidavit of the appellant and alsofor placing on record true copy of Ration Card and for exemption fromfiling certified copy of Annexure A- 10. Criminal Application No. 20593of 2014 came for consideration before the High Court on 30.01.2015.The High Court noticed the report dated 08/09.05.2003 sent fromDistrict and Sessions Judge, Hisar holding that Gaurav Kumar applicantwas more than 18 years of age on the date of commission of offence.The High Court took into the consideration the birth certificate issued byRegistrar (Birth & Death), Haansi where date of birth of appellant sonof Davender and Indu was recorded as 17.08.1981. In view of thereport of District and Sessions Judge, Learned Counsel for theapplicant-appellant submitted before the High Court that he does notpress the applications. The applications, thus, were dismissed aswithdrawn.

4. In view of Order passed in Application No.20593 of 2014 learnedcounsel for applicant- appellant did not press other criminal miscellaneousapplications which were also dismissed as withdrawn by Orderdated30.01.2015.

5. These appeals have been filed by appellant against the orderdated 30.01.2015 of the High Court by which order the applications filedby the applicant-appellant were dismissed as withdrawn.

6. Shri Neeraj Jain, learned senior Advocate appearing for theappellant submits that appellant has right to raise the issue of juvenility at AB

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Aany stage, hence, even if his applications for submitting additionalevidence in support of his case of juvenility, has been dismissed aswithdrawn, 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 byDistrict Judge in his report. He submits that learned Sessions JudgeBerred in relying on birth certificate in which son has been born to Davenderon 17.08.1981 has been recorded.

7. Learned Counsel for the appellant has placed reliance on Rule12 of Juvenile Justice (Care and Protection of Children) Rules, 2007.He submits that Rule 12 deals with the procedure to be followed inCdetermination of age. He submits that by virtue of Rule 12(3) the date ofbirth certificate from the school first attended was to be preferred thanthe birth certificate given by Corporation or Municipal Authority, or aPanchayat. He submits that school certificate relied by appellant was tobe preferred by statutory provisions, hence, the report of District JudgeDrelying on birth certificate given by Corporation was erroneous. Insupport of his submission he has placed reliance on judgment of thisCourt in 2011(13) SCC 751, Shah Nawaz versus State of UttarPradesh and another, and Judgment of this Court in 2012(10) SCC489, Abuzar Hossain alias Gulam Hossain versus State of West Bengal.E

Bengal.E

8. Learned counsel appearing for the State has refuted thesubmission of the appellant and submits that District & Sessions Judgehas after due inquiry held that appellant was not Juvenile on the date ofoccurrence. He submits that no error has been committed by District &Sessions Judge on relying on the birth certificate issued by RegistrarF(Birth & Death). He submits that the certificates which were sought tobe submitted in the additional evidence were not pressed before theHigh Court. The appellant himself having withdrawn his applications forfiling additional evidence has virtually accepted the report of Districtand Sessions Judge and cannot be allowed to challenge the same in thisGCourt.

9. We have considered the submissions of learned counsel to theparties and perused the record.

10. Even though applicant-appellant has withdrawn hisapplication filed in the High Court for placing certain additional evidence H

GAURAV KUMAR @ MONU v. STATE OF HARYANA[ASHOK BHUSHAN, J.]

to question the report submitted by District and Sessions Judge, weproceed to examine the submissions raised by learned counsel for theappellant on merits. The main thrust of the submission of learnedcounsel 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 conflictwith law, the age determination inquiry shall be conductedby the Court or the Board or, as the case may be, theCommittee by seeking evidence by obtaining- (a) (i) the matriculation or equivalent certificates, ifavailable; and in the absence whereof;

(ii) the date of birth certificate from the school (other thana playschool) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or amunicipal 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 dulyconstituted Medical Board, which will declare the age ofthe juvenile or child. In case exact assessment of the agecannot be done, the Court or the Board or, as the casemay be, the Committee, for the reasons to be recorded bythem, may, if considered necessary, give benefit to the childor juvenile by considering his/her age on lower side withinthe margin of one year.

and, while passing orders in such case shall, after takinginto consideration such evidence as may be available, or themedical opinion, as the case may be, record a finding in respectof his age and either of the evidence specified in any of theclauses (a)(i), (ii), (iii) or in the absence whereof, clause(b)shall be the conclusive proof of the age as regards such childor the juvenile in conflict with law.”

11. This Court in Shah Nawaz case had considered Rule 12 of2007 Rules and has held that preference has been given to the schoolcertificate over the medical report. In paragraph 26, following has beenlaid down:- A

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“26. We are also satisfied that Rule 12 which was brought inpursuance of the Act describes four categories of evidencewhich have been provided in which preference has been givento school certificate over the medical report.”

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12. A Three-Judge Bench in Abuzar Hossain(Supra) whileBconsidering Rule 12 laid down following: -

“39.3.As to what materials would prima facie satisfy the courtand/or are sufficient for discharging the initial burden cannotbe catalogued nor can it be laid down as to what weightshould be given to specific piece of evidence which may besufficient to raise presumption of juvenility but the documentsreferred to in Rules 12(3)(a)(i) to (iii) shall definitely besufficient for prima facie satisfaction of the court about theage of the delinquent necessitating further enquiry under Rule12. The statement recorded under Section 313 of the Codeis too tentative and may not by itself be sufficient ordinarilyto justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leavingcertificate or the voters’ list, etc. obtained after convictionwould depend on the facts and circumstances of each caseand no hard-and-fast rule can be prescribed that they mustbe prima facie accepted or rejected. In Akbar Sheikh andPawan these documents were not found prima facie crediblewhile in Jitendra Singh the documents viz. School leavingcertificate, marksheet and the medical report were treatedsufficient for directing an inquiry and verification of theappellant’s age. If such documents prima facie inspireconfidence of the court, the court may act upon suchdocuments for the purposes of Section 7-A and order anenquiry for determination of the age of the appellant.”

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13. In his concurring opinion Justice T.S. Thakur while elaborat-ing Rule 12 laid down following:- G

“43.2. The second factor which must ever remain present inthe mind of the Court is that the claim of juvenility may attimes be made even in cases where the accused does not haveany evidence showing his date of birth by reference to anypublic document like the Register of Births and Deaths H

maintained by the municipal authorities, panchayats orhospitals nor any certificate from any school, as the accusedwas never admitted to any school. Even if admitted to a schoolno record regarding such admission may at times be availablefor production in the court. Again, there may be cases in whichthe accused may not be in a position to provide a birthcertificate from the corporation, the municipality or thepanchayat, for we know that the registration of births anddeaths may not be maintained and if maintained may not beregular and accurate, and at times truthful.

44. Rule 12(3) of the Rules makes only three certificatesrelevant. These are enumerated in sub-rules 3(a)(i) to (iii ofthe Rule which reads asunder:- “(3)(a)(i) the matriculation or equivalent certificates, ifavailable; and in the absence whereof;

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

(iii) the birth certificate given by a corporation or amunicipal authority or a panchayat;”Non-production of theabove certificates or any one of them is not, however, fatal tothe claim of juvenility, for sub-rule(3)(b) to Rule 12 makes aprovision for determination of the question on the basis ofthe medical examination of the accused in the “absence” ofthe certificates.”

14. The submission of learned counsel for the appellant was thatschool certificate filed by him with date of birth 17.08.1982 was noteven challenged, hence, on the strength of Rule 12 the said certificateought to have been accepted by the learned Sessions Judge.

15. The submissions raised by learned counsel for appellant basedon Rule 12(3) of 2007 Rules could have been considered by us in detailbut we notice that in the present case, there is no applicability of Rule 12of 2007 Rules. The date of occurrence in the present case is23/24.05.2000 on which date Rule 2007 were not enforced. Even on thedate when learned District and Sessions Judge submitted his report08.05.2003 after holding inquiry, Rule 2007 was not in force. Rule 100 of2007 Rules repealed the earlier Rule of Juvenile Justice (Care and A

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AProtection of Children) Rules, 2001. Rule 100 of 2007 Rules is asfollows: - “100. Repeal. - The Juvenile Justice (Care and Protection ofChildren) Rules, 2001, notified vide F.No.1-3/2001-SD, datedthe 22ndJune, 2001 in the Gazette of India, Extraordinary,BPart I, Section 1 of the same date is hereby repealed.”

16. Thus, the relevant Rule occupying the field in the present casewere 2001 Rules. Rule 22 of 2001 Rules dealt with “procedure tofollowed 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 asCfollows:- “22(5). In every case concerning a juvenile or a child, theBoard shall either obtain, -

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

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

(iii) matriculation or equivalent certificates, if available;and E(iv) in the absence of (i) to (iii) above, the medical opinionby a duly constituted Medical Board, subject to amargin of one year, in deserving cases for the reasonsto be recorded by such Medical Board regarding his age; and, when passing orders in such caseFshall, after taking into consideration such evidence as maybe 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 wererequired to be looked into are the Juvenile Justice (Care and ProtectionGof Children) Rules, 2001.

18. The High Court had no occasion to consider the issue sincethe appellant has not pressed the issue before the High Court, we are ofthe view that it shall be appropriate that the High Court be requested toconsider the question of juvenility of the appellant afresh beforeHproceeding to decide the appeal.

GAURAV KUMAR @ MONU v. STATE OF HARYANA[ASHOK BHUSHAN, J.]

19. The interest of justice be served by setting aside the orderdated 30.01.2015 passed by the Punjab and Haryana High Court andremit the question of juvenility to the High Court for consideration. TheHigh Court before deciding the appeal on merit may consider thequestion of juvenility on the basis of the relevant materials on record.The documents which were sought to be submitted before the HighCourt by the appellant be also taken on record and the High Court mayreconsider the issue on the basis of materials on record as well as thereport of the Sessions Judge which was sought by the High Court. Theorder dated 30.01.2015 passed by the High Court is set aside. Theappeals are disposed of accordingly.

Nidhi Jain

Appeals disposed of.

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