Babloo Pasi Vs. State
of Jharkhand & ANR [2008] INSC 1689 (3 October 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1572 2008 (Arising
out of S.L.P. (Criminal) No.1620 of 2007) BABLOO PASI -- APPELLANT VERSUS
D.K. JAIN, J.:
1.
Leave
granted.
2.
This
appeal, by special leave, is directed against 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, 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
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 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 & 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 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 Jagmohan Singh Kuldip Singh Anand &
Ors.3. Reference 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 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.
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 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 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."
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.
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 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
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.
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 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)
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 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 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 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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