AGE INQUIRY By GEETANJLI GOEL SPECIAL SECRETARY DSLSA

How children come before the courts? As victims of crime Witnesses Children in conflict with law Children in need of care and protection

Who is a juvenile or child in conflict with law? Who is alleged to have committed an offence, and Who has not completed the eighteenth year of age as on the date of commission of such offence (material date is the date of commission of offence, also so held in Umesh Chandra (1982) and Hari Ram’s case). Section 82 IPC – less than 7 years old Section 83 IPC – 7 to 12 years Child is also a person who has not completed eighteenth year of age

Why juveniles should not be kept in jails? Hon’ble Supreme Court in Sheela Barse v. Union of India (1986) 3 SCC 632 observed: “If a child is a national asset, it is the duty of the State to look after the child with a view to ensuring full development of its personality. That is why all the statutes dealing with children provide that a child shall not be kept in jail. Even apart from the statutory prescription, it is elementary that a jail is hardly a place where a juvenile should be kept. There can be no doubt that incarceration in jail would have the effect of dwarfing the development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society.”

Gopi Nath Ghosh v. State of West Bengal, AIR 1984 SC 237 Hon’ble SC in Gopi Nath Ghosh observed: “We are of the opinion that whenever a case is brought before the Magistrate and the accused appears to be aged 21 years or below, before proceeding with the trial or undertaking an enquiry, an enquiry must be made about the age of the accused on the date of the occurrence. This ought to be more so where special acts dealing with juvenile delinquent are in force. If necessary, the Magistrate may refer the accused to the Medical Board or the Civil Surgeon, as the case may be, for obtaining credit worthy evidence about age. The Magistrate may as well call upon the accused also to lead evidence about his age. Thereafter, the learned Magistrate may proceed in accordance with law.”

AGE Immediately on apprehension police officers are required to make enquiries about the age of the person involved especially if he appears to be a minor. Police officers have to try and obtain documentary information and if there is any doubt benefit of doubt has to be given to the person apprehended and he is to be treated as a juvenile and produced before JJB. They are also to prepare an age memo (rule 12). Likewise in cases of CNCP, age inquiry is necessary as the jurisdiction of CWC depends on the same.

Court to consider the documents regarding age produced by IO Cont… Court to consider the documents regarding age produced by IO Court is further to make enquiries from the person produced and from family members if they are present If on the first date the person produced before a Magistrate appears to be less than 18 years he should be directed to be produced before JJB and he can be directed to be kept at Observation Home if production before JJB is not possible on the same day. (S.7 of the Act specifically speaks of the procedure when a person is brought before the Magistrate who in the opinion of the Magistrate is a juvenile or a child). Rule 76 also provides for same and for child to be produced before Committee.

cont If the age of the alleged offender produced before the Court appears to be below 21 years, it shall question the alleged offender about his age, satisfy itself that he is not a juvenile, make a note of its findings and order immediate transfer of the matter to the Board where necessary. Rule 74(1)

cont Reiterated by Hon’ble HC of Delhi in Court on its Own Motion that preliminary enquiry as to age has to be done in all such cases. It was observed: “As and when a young person is apprehended/ arrested and he is produced before the Magistrate, it will be the duty of the Magistrate also to order ascertainment of age of such a person. The Magistrate shall, in all such cases, undertake this exercise wherefrom the young person from his/her looks appears to be below 18 years of age and also in all those cases where in the arrest memo age is stated to be 18-21 years. A preliminary enquiry in this behalf shall be undertaken of all these young persons whose age is stated to be upto 21 years on the lines of judgment of the Supreme Court in Gopinath v. State of West Bengal AIR 1984 SC 237.” And further in Jitendra Singh @ Babboo Singh and Anr. V. State of UP (MANU/SC/0679/2013) If the person then found to be a juvenile he is to be forwarded to the JJB. If at any stage the person prima facie appears to be a juvenile he may be shifted to Observation Home.

AGE Section 8(1) – every court where claim of juvenility is raised has to make an inquiry to determine the age. Claim can be raised before any court and it shall be recognised at any stage even after final disposal of the case. If the court finds a person to be a juvenile on the date of commission of offence the juvenile is to be forwarded to the Board for passing appropriate order and the sentence, if any, passed by a court shall be deemed to have no effect.

AGE INQUIRY Rule 74 of the Act applies to courts or the JJB or the CWC alike. When a juvenile or child or juvenile in conflict with law is produced before the Board or the Committee, it shall determine and declare the age within 30 days from date of such production. The Board or the Committee may decide the juvenility or otherwise on the basis of the physical appearance or documents available, if any. In case of reasonable grounds for doubt, age determination has to be undertaken.

cont The age inquiry where conducted is to be conducted on the basis of following evidence: the birth certificate issued by a corporation or a municipal committee or any other notified authority; Matriculation or equivalent certificate (iii) and only in absence of (i) and (ii) or in case of any contradiction arising therefrom, the medical opinion will be sought from a duly constituted Medical Board which shall record its findings and submit to JJB. Thus medical age test is not to be directed straightaway but only when the above documents cannot be found after sincere efforts. All Govt. Hospitals to constitute Medical Boards consisting of a Physiologist, Dental Examiner and a Radiologist or Forensic Expert, of whom one shall be notified as the Chairperson.

-All members of the Medical Board to give their individual findings on age, which shall then be forwarded to the Chairperson of the Board to give the final opinion on the age within a margin of one year. -Medical Boards are to give their report with the findings on age within 15 days of request being made in this regard.

Cont.. In case exact assessment cannot be done, the Court or the Board or the Committee, for reasons to be recorded by them give benefit to the child or juvenile by considering his age on lower side within the margin of one year. [rule 75(3)] Decision of the Board or the Committee shall be the conclusive proof of the age as regards a child or a juvenile in conflict with law.

Cont… JWOs/IOs should collect the relevant documents and get them verified and attested and place them before the Board at the earliest so that time can be saved. Application for ossification or medical age determination test not to be moved mechanically but only when the above documents cannot be found after sincere efforts.

cont Courts have held that generally the documentary evidence is to be preferred over the medical evidence and only when the documents produced are doubtful that the ossification test report should be relied on. Generally the age on the lower side of the range is to be considered. Same procedure has to be followed for determining the age of the victims (Jarnail Singh v. State of Haryana (2013) 7 SCC 263; Mahadeo v. State of Maharashtra (2013) 14 SCC 637). Board or Committee shall provide a copy of the order declaring age to the concerned juvenile or child or his parent/ guardian. [rule 75(5)]

Contd. In Arnit Das v State of Bihar it was held that: “ while dealing with the question of determining the age of a person for the purposes of finding out whether he is a juvenile or not, a hyper technical approach should not be adopted while appreciating evidence in support of the plea of juvenility if two views may be possible on the said evidence, the court should lean in favour of holding him to be a juvenile in border line cases.” 17 17

Scope of Age Inquiry Has been a question of difficulty with some courts ordering detailed inquiry including examining witnesses, while others relying upon documentary proof and passing orders. Rule 75 provides that the Court or the Board or the Committee shall declare the age after examining the witnesses on age and by affording opportunity of cross examination to the State/ complainant and the juvenile. The witnesses may include School Principals or their representatives, parents, Registrars of Education Boards, Municipal Corporation or Panchayat representative, Chairperson and Members of the Medical Board etc.

The issue was dealt in detail by Hon’ble Supreme Court in Ashwani Kumar Saxena v. State of M.P. (2012) 9 SCC 750. It was observed that S.7A (Act of 2000) obliges the court only to make an inquiry, not an investigation or a trial, an inquiry not under the Code of Criminal Procedure, but under the JJ Act. Further it was observed that the Court or the Board can accept as evidence something more than an affidavit i.e. the Court or the Board can accept documents, certificates etc as evidence need not be oral evidence; and that age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service.

Cont… “There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, JJ Board or a Committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the JJ Board or the Committee need to go for medical report for age determination.” And further: “The reasoning that the parents could have entered a wrong date of birth in the admission register hence not a correct date of birth is equal to thinking that parents would do so in anticipation that child would commit a crime in future and, in that situation, they could successfully raise a claim of juvenility.”

Cont.. After this judgment the argument based on S.54 of the Act that procedure of summons trial has to be followed for any inquiry under the Act or that S.35 of the Evidence Act has to be given due meaning lose any relevance. As regards the former argument, S.54 applies only to competent authority i.e. JJB or CWC and it cannot be that different procedures are followed by JJB and the courts for conducting age inquiry. Further S.54 refers to procedure ‘as may be prescribed’ and ‘prescribed’ has been defined in S.2(r ) to mean prescribed by rules made under the Act meaning thereby R.12. As regards the latter argument, earlier view based on Birad Mal Sanghvi and Ravinder Gorkhi (2006)5 SCC 584 was followed but that is now answered by Ashwani Kumar Saxena. Thus in Bhim@Sagar v. State (Delhi HC decision of 23.5.2013) school certificate was accepted though there were 3 different documents showing different date of birth.

Duty of court Whether the court is bound to hold an age determination inquiry in all cases in whenever an accused claims to be a child? The answer has to be in affirmative and the claim cannot be rejected on the ground of being an afterthought. Even if application for withdrawing the application u/S.7A is filed still the court should decide the question. It was held in Bhola Bhagat v. State of Bihar (1997)8 SCC 720: “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 examine that plea with care and it cannot fold its hands and without returning a positive finding regarding that plea, deny the benefits of the provisions to an accused. The court must hold an inquiry and return a finding regarding the age, one way or the other.” Recently also it has been held that it is the duty of the court to seek evidence and even if the documents are found to be fabricated still the plea of juvenility has to be considered and decided.

Where claim of juvenility is raised after conviction It is settled law that claim of juvenility may be raised at any stage even after final disposal of the case and delay in raising the claim of juvenility cannot be a ground for rejection of such claim. If the claim is raised after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary, initial burden has to be discharged by the person who claims juvenility. Such materials which would prima facie satisfy the court cannot be catalogued. An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision shall not be sufficient in justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of age of the delinquent. (Emphasis supplied)

Cont… Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim must be rejected by the court at the threshold whenever raised. Court where plea is raised for the first time should be guided by the objectives of the Act and a hyper technical approach is not to be taken. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability. Abuzar Hossain @ Gulam Hossain v. State of West Bengal (2012)10 SCC489.

‘Sentencing’ where a person is found a juvenile after conviction Several views were taken: The juvenile was found guilty of crime but the sentence awarded was quashed. The view taken was that the juvenile was adequately punished for the offence committed by him by serving out some period in detention. The entire case was remitted for consideration by the jurisdictional JJB, both on the innocence or guilt of the juvenile as well as the sentence to be awarded if the juvenile was found guilty. Case was examined on merits and after having found the juvenile guilty of the offence, the matter was remitted to the jurisdictional JJB on the award of sentence. Held in Jitendra Singh @ Babboo Singh that the appropriate course of action would be to remand the matter to the jurisdictional JJB for determining the sentence.