- (1.) S .C. Agarwal, J. - Heard learned Counsel for the revisionist, learned A.G.A. for the State and perused the material on record. No notice is issued to private opposite party in view of the order proposed to be passed today, however, liberty is reserved for private opposite party to apply for variation or modification of this order if he/she feels so aggrieved. This revision under section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (here-in-after referred to as the 'Act') is directed against the order dated 6.7.2010 passed by III Addl. Sessions Judge, Mathura in Sessions Trial No. 92 of 2001 State Vs. Hardayal & others in case crime no.352 of 2000 under sections 364. 307, 302 IPC, P.S. Kosi Kalan, District Mathura whereby Application (Paper) No.127 moved on behalf of the accused revisionist Siya Ram for declaring himself to be a juvenile was rejected on the ground that this issue was raised earlier and the matter was referred to the Juvenile Justice Board and after conclusion of the trial, this plea cannot be entertained at the instance of the accused.
(2.) LEARNED counsel for the revisionist submitted that on an application moved by the accused under Section 7A of the Act for declaring himself to be a juvenile, the trial court was bound to hold an inquiry, as envisaged under Section 7A of the Act and to decide it in accordance with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 'Rules 2007') as to whether the accused was a juvenile in conflict with law on the date of incident or not. Learned counsel submitted that on earlier application, the matter was not referred to Juvenile Justice Board and no report of Juvenile Justice Board is on record of the trial. Section 7 A of the Act provides as under : "7A. Procedure to be followed when claim of juvenility is raised before any court.? (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect." Rule 12 of the Rules 2007 provides as follows : "12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (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 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. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.
(3.) THERE is no escape from the conclusion that once an application under Section 7A of the Act is filed before any Court, the Court is bound to hold an inquiry, as envisaged under Section 7A of the Act and to take a decision in accordance with Rule 12 of the Rules 2007, as quoted above, to find out the age of the accused on the date of the incident, as nearly as possible, to conclude whether on the date of offence, the accused was juvenile or not. Learned trial court has not adopted the procedure and mandate provided under Section 7A of the Act. A reference to Juvenile Justice Board is not necessary and it is the duty of the trial court to hold inquiry itself. Plea of juvenile can be taken by the accused at any stage of trial.;