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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1971      OF     2012   @ Special Leave Appeal (Crl.) No. 9343 of 2011

Jodhbir Singh .. Appellant(s)

Versus

State of Punjab        .. Respondent(s)

J     U     D     G     M     E     N     T   

K.     S.     Radhakrishnan,     J.   

1. Leave granted.

2. The appellant and one Sandeep Singh were apprehended by  

the SP/Anti Smuggling Squad on 26.09.2012 near Gurdwara Atari  

Sahib Sulthanwind, Amritsar while they were waiting for a party to  

deliver the consignment of 2 kg Heroin on their Motor Cycle No. PB-

02-BC-1089.  FIR No. 26 dated 26.09.2010 was registered by PS  

State Special Operation Cell under Sections 21, 25, 29, 61, 85 of  

the NDPS Act.  An application was filed by the appellant before the

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Judge, Special Court, Amritsar for sending the case against him to  

the Juvenile Justice Board for trial.

3. The appellant stated before the Judge, Special Court, Amritsar  

that he was a juvenile on the date of the incident since he was born  

on 20.07.1996.  A certificate dated 19.10.2010 issued by the  

Government High School, Naushehra Cheema (Tarn Taran) was also  

produced in support of his contention that his date of birth was  

20.07.1996.  The application was opposed by the State stating that  

during interrogation, he had stated he was born in the year 1991  

and as such he was not a juvenile on the date of the incident.  

Further, reference was also made to the certificate issued by the  

Chowkidar of the village which showed that the date of birth of the  

appellant was 05.07.1993.

4. After hearing the counsel on either side at length and perusing  

the records, the Sessions Court passed the following order which  

reads as follows:

“A perusal of the record has shown that as per the  certificate Ex.A1 passing of 5th Class, issued by the  Education Department, Punjab shows the date of birth  of the applicant-accused Jodhbir Singh to be 20.07.1996  AW1 Parkash Kaur, mother of the applicant-accused has

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mentioned the date of birth of Jodhbir Singh to be  20.07.1996.  She has stated that the age of Jodhbir  Singh is 14 ½ years.  However, in her cross examination,  the said witness Parkash Kaur had categorically  mentioned the date of birth of Jodhbir Singh to be  20.07.1996 has feigned for ignorance regarding the date  of her marriage.  Regarding her elder son, she had stated  that he was born on 15 Magh, but she could not tell year  of birth of her eldest son Gursahib Singh.  She has also  not been able to tell the date of birth of Jodhbir Singh  during the course of her cross examination though she  had specifically told the date during the course of her  examination in chief.  Even she could not tell after how  many years of her marriage Jodhbir Singh was born.  This shows that Parkash Kaur, mother of the applicant- accused Jodhbir Singh is not aware about the date of  birth of her son as well as his age.  RW2 Jagjit Singh,  Chokidar has stated that as per the record of his  Chowkidar register, the date of birth of Jodhbir Singh  was 5.7.1993.  Even here, in the document Ex.RW2/A  there is cutting.  All this shows that the document Ex.A1  and the document Ex.RW2/A are contrary to each other  not showing the real date of birth of the accused.  The  record of the criminal case bearing FIR No.26 dated  26.09.2010 shows that during the course of  interrogation, the accused had not disclosed himself to  be a minor or juvenile.  Though his maternal uncle  Dalbir Singh also informed regarding the complicity of  the accused in the commission of the offence under  Sections 21, 25, 29 of the NDPS Act, but neither his  maternal uncle nor his parents had told the police that  applicant-accused Jodhbir Singh was minor at the time  of commission of the offence.  In the identification  certificate of accused Jodhbir Singh, his age has been  mentioned as 19/20 years.  In such like circumstances,  the school certificate as well as the entry in the register  of the chowkidar regarding date of birth of the applicant- accused Jodhbir Singh does not seem to be true and  that the said record seems to be maneuvered only to get

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undue benefit of the provision of Juvenile Justice (Care  and Protection of Children) Act, 2000.”

5. The appellant, aggrieved by the above order, filed Criminal  

Revision No. 1440 of 2011 before the High Court of Punjab and  

Haryana at Chandigarh.  The High Court concurred with the views  

expressed by the Sessions Court and heavily relied on the following  

circumstances to dismiss the revision petition on 07.07.2011.

“(i) The mother of the petitioner Parkash Kaur while  appearing as AW1 has not been able to tell the date of  birth of the petitioner during the cross-examination.  She was not even able to tell after how many years of  her marriage the petitioner was born.

(ii) The petitioner himself during the course of  interrogation had not disclosed himself to be minor or  juvenile.

(iii)His maternal uncle Dalbir Singh had also not  supplied any information to the police regarding the  age.

(iv) In the identification certificate, the petitioner has  given his age as 19/20 years.”

6. Aggrieved by the said order, this appeal has been preferred.

7. Mr. Siddharth Mittal, learned counsel appearing for the  

appellant submitted that the Sessions Court has committed a grave

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error in not properly appreciating the scope of Section 7A of the  

Juvenile Justice (Care and Protection of Children) Act, 2000 (for  

short ‘the JJ Act’) and Rule 12 of the Juvenile Justice Rules, 2007  

(for short ‘the JJ Rules’).  Learned counsel submitted that the  

courts have committed a grave error in placing reliance on the  

certificate issued by the village Chowkidar as against the certificate  

issued by the State Council for Education Research and Training  

Punjab, Chandigarh dated 05.04.2006 and the certificate dated  

19.10.2000 issued by the Government High School, Naushehra  

Cheema (Tarn Taran).  Learned counsel submitted that both the  

abovementioned certificates indicate that the date of birth of the  

appellant is 20.07.1996 and therefore on the date of the incident  

i.e.26.09.2010, the appellant was a juvenile.  Considerable reliance  

was placed on judgment of this Court in Ashwani Kumar Saxena  

v. State of M.P. [(2012) 9 SCC 750] in support of his contention.

8. Mr. Saurabh Ajay Gupta, learned counsel appearing for the  

respondent-State, submitted that there is no illegality in the order  

passed by the Sessions Court, which was confirmed by the High  

Court.  Learned counsel submitted that since there is some conflict

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on the date of birth shown in the school register and that of the  

certificate issued by village Chowkidar, the Sessions Court and the  

High Court were justified in placing reliance on the certificate  

issued by village Chowkidar to reject the claim of juvenility.

9. When the matter came up for hearing, we passed the order  

dated 29.08.2012 which reads as follows:

“Learned counsel appearing for the petitioner placed  reliance on certificate issued by the State Council for  Education Research and Training, Punjab, Chandigarh  dated 5.4.2006, where it is stated that the date of birth  of the petitioner is 20.7.1996.  A photo copy of the same  has been made available to the Court as well as to the  counsel appearing for the state Government.

Learned counsel for the petitioner also placed reliance  on a copy of certificate dated 19.10.2000 issued by the  Government High School, Naushehra Cheema (Tarn  Taran) which also shows date of birth of the petitioner  as 20.07.1996 and reference was also made to the  Admission and Withdrawal Register, Govt. High School,  Naushera Cheema (Tarn Taran) issued by the  Headmaster/Principal of the Govt. High School,  Naushera Cheema (Tarn Taran).

Under such circumstances, we are inclined to give a  direction to the State to examine the genuineness of  these documents and file an affidavit to that effect.”

10. In pursuance of that order, an affidavit dated 14.11.2012 was  

filed by Dy. Superintendent of Police, State Special Operation Cell,

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Amritsar, Punjab who examined the genuineness of the certificates  

referred to in our order.  Relevant portion of the order reads as  

follows:

“3. That as per the directions, following  documents furnished by the petitioner have been  examined to ascertain their genuineness.

(A)A Certificate issued by the State Council of  Education Research and Training Punjab,  Chandigarh dated 05.04.2006.

(B) A Certificate issued by Govt. High School,  Naushera Cheema, Tarn Taran.

(C) A copy of admission and withdrawal register of  Govt. High School Naushera Cheema.

4. That, Sh. Manjinderjit Singh Head Master  Govt. High School Nausherha Cheema, Tarn Taran has  certified the genuineness of the documents on the basis  of the record maintained in the school.

5. That, the copy of the statement furnished by  Sh. Manjinderjit Singh Head Master Govt. High School  Nausherha Cheema, Tarn Taran to this effect is  attached as Annexure R-1.”

11. We notice the genuineness of the certificate issued by the  

State Council of Education Research and Training Punjab,  

Chandigarh dated 05.04.2006 and the certificate issued by Govt.  

High School Naushera Cheema, Tarn Taran and the admission and

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withdrawal register of Govt. High School, Naushera Cheema has not  

been questioned.

12. In Ashwani Kumar Saxena case (supra), this Court has  

explained how “Age determination inquiry”  has to be conducted  

under Section 7A of the JJ Act read with Rule 12 of the JJ Rules.  

Relevant portion of the same is extracted hereunder:

“32. “Age determination inquiry”  contemplated  under Section 7A of the Act read with Rule 12 of the  2007 Rules enables the court to seek evidence and in  that process, the court can obtain the matriculation or  equivalent certificates, if available.  Only in the  absence of any matriculation or equivalent certificates,  the court needs to obtain the date of birth certificate  from the school first attended other than a play school.  Only in the absence of matriculation or equivalent  certificate or the date of birth certificate from the  school first attended, the court needs to obtain the  birth certificate given by a corporation or a municipal  authority or a panchayat (not an affidavit but  certificates or documents).  The question of obtaining  medical opinion from a duly constituted Medical Board  arises only if the above mentioned documents are  unavailable.  In case exact assessment of the age  cannot be done, then the court, for reasons to be  recorded, may if considered necessary, give the benefit  to the child or juvenile by considering his or her age  on lower side within the margin of one year.

33. Once the court, following the abovementioned  procedures, passes an order, that order shall be the

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conclusive proof of the age as regards such child or  juvenile in conflict with law.  It has been made clear in  sub-rule (5) of Rule 12 that no further inquiry shall be  conducted by the court or the Board after examining  and obtaining the certificate or any other documentary  proof after referring to sub-rule (3) of Rule 12.  Further, Section 49 of the JJ Act also draws a  presumption of the age of the juvenility on its  determination.”

13. We are of the view that in a case where genuineness of the  

school leaving certificate has not been questioned, the Sessions  

Court and the High Court were not justified in placing reliance on  

certain statements made by Parkash Kaur, mother of the accused  

in the cross-examination.  The Sessions Court also committed an  

error in placing reliance on the certificate issued by the village  

Chowkidar who was examined as RW2.  When the law gives prime  

importance to the date of birth certificate issued by the school first  

attended, the genuineness of which is not disputed, there is no  

question of placing reliance on the certificate issued by the village  

Chowkidar.

14. We may indicate that all these legal aspects has already been  

dealt with in Ashwani Kumar Saxena case (supra), hence, further  

elucidation of the question raised does not arise.  The issue raised,

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in our view, is fully covered by the abovementioned judgment.  In  

such circumstances, we are inclined to allow this appeal and set  

aside the order passed by the Sessions Court dated 16.04.2011 and  

the impugned judgment and order dated 07.07.2011in Criminal  

Revision No. 1440 of 2011.  We hold that the appellant was a  

juvenile on the date of the incident and has to be tried by the  

Juvenile Justice Board.  The Sessions Court is directed to make  

over the files to the Juvenile Justice Board to proceed with the trial,  

so far as the appellant is concerned.

…………………………………..J. (K.S. Radhakrishnan)

…………………………………..J. (Dipak Misra)

New Delhi, December 3, 2012