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applications as withdrawn filed in Criminal Appeal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

IPC against the appellant and other accused. The

accused  including  the  appellant  were  tried  by

Additional Sessions Judge, Hisar in Criminal Case

1

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

2

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.