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 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
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 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 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 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, 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 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 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, 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
