The Juvenile Justice (Care and Protection of Children) Rules, 2001, Rule 22 sub-sub-Rule (5) which is relevant for the present case is as follows: – “22(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; (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 15 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.”= We are of the view that the relevant Rules which were required to be looked into are the Juvenile Justice (Care and Protection of Children) Rules, 2001.The High Court had no occasion to consider the issue since the appellant has not pressed the issue before the High Court, we are of the view that it shall be appropriate that the High Court be requested to consider the question of juvenility of the appellant afresh before proceeding to decide the appeal.= remit the question of juvenility to the High Court for consideration. The High Court before deciding the appeal on merit may consider the question of juvenility on the basis of the relevant materials on record. The documents which were sought to be submitted before the High Court by the appellant be also taken on record and the High Court may reconsider the issue on the basis of materials on record as well as the report of the Sessions Judge which was sought by the High Court. The order dated 30.01.2015 passed by the High Court is set aside. The appeals are disposed of accordingly.


Hon’ble Mr. Justice Ashok Bhushan

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.283-285 OF 2019
(arising out of SLP(CRL.) No.2366-2368 of 2015)
GAURAV KUMAR @ MONU ….APPELLANT(S)
VERSUS
THE STATE OF HARYANA ….RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
Leave Granted.

  1. These appeals have been filed by the appellant
    challenging the Order dated 30.01.2015 passed by
    the Punjab & Haryana High Court dismissing three
    applications as withdrawn filed in Criminal Appeal
    No. 937 of 2002. Brief facts necessary to be
    noticed for deciding these appeals are: –
  2. The F.I.R. dated 24.05.2000 was registered
    under Section 323, 506, 148, 149, 170, 171 & 302
    IPC against the appellant and other accused. The
    accused including the appellant were tried by
    Additional Sessions Judge, Hisar in Criminal Case
    1
    No. 127 S.C. of 2005. The date of incident is
    intervening night of 23rd/24th May, 2000, in which
    incident one Sher Singh was beaten, who was taken
    to the hospital and after recording of his
    statement he died. The Sessions Judge vide his
    judgment and order dated 12.11.2002 convicted the
    appellant and one Hans Raj under Section 302 IPC
    read with Section 34 IPC by Order dated 14.11.2002
    and both were sentenced for life with fine of
    Rs.500/-. Criminal Appeal No.937 of 2002 was filed
    by the appellant against the Order of conviction
    and sentence in the High Court of Punjab & Haryana.
    One of the grounds taken in the appeal was that
    appellant was less than 18 years of age on the date
    of incident. The High Court vide Order dated
    24.03.2003 while issuing notice on the application
    for bail ordered that in the meanwhile a report of
    the learned Sessions Judge, Hisar be called as to
    whether Gaurav Kumar applicant was a Juvenile on
    the date of commission of offence and on the date
    of framing of charge. Learned Sessions Judge
    conducted an inquiry in which oral as well as
    2
    3
    documentary evidence was taken from both the
    parties. Before the Sessions Judge the statement of
    Davender s/o Hari Singh father of appellant was
    also recorded who also was cross examined. On
    behalf of the appellant a certificate from the
    Principal of St. Kabir School, Hisar was submitted
    wherein date of birth of Gaurav was recorded as
    17.08.1982. A mark sheet issued by National Open
    School, New Delhi of Secondary School Examination
    of Gaurav Ghatarwal was also submitted wherein date
    of birth was recorded as 17.08.1982. The State
    submitted Birth Certificate exhibit R-1 issued by
    the Registrar (Birth & Death) (Municipal Council,
    Haansi) where date of birth of son of Devender and
    Indu is recorded as 17.08.1981. The District &
    Sessions Judge, Hisar after considering the
    materials received in the inquiry including the
    oral evidence of father of the appellant held that
    date of birth of the appellant is 17.08.1981,
    hence, on the night intervening 23rd/24th May 2000,
    the applicant-appellant Gaurav Kumar was more than
    18 years of age. The report was submitted to the
    4
    High Court. Criminal Misc. Application No.20593 of
    2014 was filed by the appellant under Section 391
    read with Section 482 Cr.P.C. for placing on record
    the secondary/matriculation certificate of National
    Open School, Government of India New Delhi dated
    23.05.2000, migration certificate of National Open
    School Government of India New Delhi dated
    01.08.1999 and identity card of the appellant
    issued by the National Open University as
    additional evidence for taking the plea of
    applicant-appellant being juvenile on the date of
    the incident 24.05.2000. Another Criminal
    Application No. 3118 of 2015 in Criminal Misc.
    Application No.26949 of 2014 for placing on record
    additional affidavit of the appellant and also for
    placing on record true copy of Ration Card and for
    exemption from filing certified copy of Annexure A10. Criminal Application No. 20593 of 2014 came for
    consideration before the High Court on 30.01.2015.
    The High Court noticed the report dated
    08/09.05.2003 sent from District and Sessions
    Judge, Hisar holding that Gaurav Kumar applicant
    5
    was more than 18 years of age on the date of
    commission of offence. The High Court took into the
    consideration the birth certificate issued by
    Registrar (Birth & Death), Haansi where date of
    birth of appellant son of Davender and Indu was
    recorded as 17.08.1981. In view of the report of
    District and Sessions Judge, Learned Counsel for
    the applicant-appellant submitted before the High
    Court that he does not press the applications. The
    applications, thus, were dismissed as withdrawn.
  3. In view of Order passed in Application No.
    20593 of 2014 learned counsel for applicantappellant did not press other criminal
    miscellaneous applications which were also
    dismissed as withdrawn by Order dated 30.01.2015.
  4. These appeals have been filed by appellant
    against the order dated 30.01.2015 of the High
    Court by which order the applications filed by the
    applicant-appellant were dismissed as withdrawn.
  5. Shri Neeraj Jain, learned senior Advocate
    appearing for the appellant submits that appellant
    has right to raise the issue of juvenility at any
    6
    stage, hence, even if his applications for
    submitting additional evidence in support of his
    case of juvenility, has been dismissed as
    withdrawn, he still can raise the issue in this
    Court in the present appeal. He further submits
    that the certificate filed from Sant Kabir School,
    Hisar was a relevant certificate which ought to
    have been relied by District Judge in his report.
    He submits that learned Sessions Judge erred in
    relying on birth certificate in which son has been
    born to Davender on 17.08.1981 has been recorded.
  6. Learned Counsel for the appellant has placed
    reliance on Rule 12 of Juvenile Justice (Care and
    Protection of Children) Rules, 2007. He submits
    that Rule 12 deals with the procedure to be
    followed in determination of age. He submits that
    by virtue of Rule 12(3) the date of birth
    certificate from the school first attended was to
    be preferred than the birth certificate given by
    Corporation or Municipal Authority, or a Panchayat.
    He submits that school certificate relied by
    appellant was to be preferred by statutory
    7
    provisions, hence, the report of District Judge
    relying on birth certificate given by Corporation
    was erroneous. In support of his submission he has
    placed reliance on judgment of this Court in
    2011(13) SCC 751, Shah Nawaz versus State of Uttar
    Pradesh and another, and Judgment of this Court in
    2012(10) SCC 489, Abuzar Hossain alias Gulam
    Hossain versus State of West Bengal.
  7. Learned counsel appearing for the State has
    refuted the submission of the appellant and submits
    that District & Sessions Judge has after due
    inquiry held that appellant was not Juvenile on the
    date of occurrence. He submits that no error has
    been committed by District & Sessions Judge on
    relying on the birth certificate issued by
    Registrar (Birth & Death). He submits that the
    certificates which were sought to be submitted in
    the additional evidence were not pressed before the
    High Court. The appellant himself having withdrawn
    his applications for filing additional evidence has
    virtually accepted the report of District and
    Sessions Judge and cannot be allowed to challenge
    8
    the same in this Court.
  8. We have considered the submissions of learned
    counsel to the parties and perused the record.
  9. Even though applicant-appellant has withdrawn
    his application filed in the High Court for placing
    certain additional evidence to question the report
    submitted by District and Sessions Judge, we
    proceed to examine the submissions raised by
    learned counsel for the appellant on merits. The
    main thrust of the submission of learned counsel of
    the appellant is based on Rule 12 of 2007 Rules.
    Rule 12(3) on which reliance is placed is as
    follows: –
    “12. Procedure to be followed in
    determination of age. –
    (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
    9
    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.”
    10
  10. This Court in Shah Nawaz case had considered
    Rule 12 of 2007 Rules and has held that preference
    has been given to the school certificate over the
    medical report. In paragraph 26, following has been
    laid down: –
    “26. We are also satisfied that
    Rule 12 which was brought in
    pursuance of the Act describes
    four categories of evidence which
    have been provided in which
    preference has been given to
    school certificate over the
    medical report.”
  11. A Three-Judge Bench in Abuzar Hossain (Supra)
    while considering Rule 12 laid down following: –
    “39.3.As to what materials would
    prima facie satisfy the court
    and/or are sufficient for
    discharging the initial burden
    cannot be catalogued nor can it be
    laid down as to what weight should
    be given to specific piece of
    evidence which may be sufficient
    to raise presumption of juvenility
    but the documents referred to in
    Rules 12(3)(a)(i) to (iii) shall
    definitely be sufficient for prima
    facie satisfaction of the court
    about the age of the delinquent
    necessitating further enquiry
    under Rule 12. The statement
    11
    recorded under Section 313 of the
    Code is too tentative and may not
    by itself be sufficient ordinarily
    to justify or reject the claim of
    juvenility. The credibility and/or
    acceptability of the documents
    like the school leaving
    certificate or the voters’ list,
    etc. obtained after conviction
    would depend on the facts and
    circumstances of each case and no
    hard-and-fast rule can be
    prescribed that they must be prima
    facie accepted or rejected. In
    Akbar Sheikh and Pawan these
    documents were not found prima
    facie credible while in Jitendra
    Singh the documents viz. School
    leaving certificate, marksheet and
    the medical report were treated
    sufficient for directing an
    inquiry and verification of the
    appellant’s age. If such documents
    prima facie inspire confidence of
    the court, the court may act upon
    such documents for the purposes of
    Section 7-A and order an enquiry
    for determination of the age of
    the appellant.”
  12. In his concurring opinion Justice T.S.Thakur
    while elaborating Rule 12 laid down following:-
    “43.2. The second factor which
    must ever remain present in the
    mind of the Court is that the
    claim of juvenility may at times
    be made even in cases where the
    accused does not have any evidence
    showing his date of birth by
    reference to any public document
    12
    like the Register of Births and
    Deaths maintained by the municipal
    authorities, panchayats or
    hospitals nor any certificate from
    any school, as the accused was
    never admitted to any school. Even
    if admitted to a school no record
    regarding such admission may at
    times be available for production
    in the court. Again, there may be
    cases in which the accused may not
    be in a position to provide a
    birth certificate from the
    corporation, the municipality or
    the panchayat, for we know that
    the registration of births and
    deaths may not be maintained and
    if maintained may not be regular
    and accurate, and at times
    truthful.
  13. Rule 12(3) of the Rules makes
    only three certificates relevant.
    These are enumerated in sub-rules
    3(a)(i) to (iii of the Rule which
    reads as under:-
    “(3)(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;”
    13
    Non-production of the above
    certificates or any one of them is
    not, however, fataal to the claim
    of juvenility, for sub-rule(3)(b)
    to Rule 12 makes a provision for
    determination of the question on
    the basis of the medical
    examination of the accused in the
    “absence” of the certificates.”
  14. The submission of learned counsel for the
    appellant was that school certificate filed by him
    with date of birth 17.08.1982 was not even
    challenged, hence, on the strength of Rule 12 the
    said certificate ought to have been accepted by the
    learned Sessions Judge.
  15. The submissions raised by learned counsel for
    appellant based on Rule 12(3) of 2007 Rules could
    have been considered by us in detail but we notice
    that in the present case, there is no applicability
    of Rule 12 of 2007 Rules. The date of occurrence in
    the present case is 23/24.05.2000 on which date
    Rule 2007 were not enforced. Even on the date when
    learned District and Sessions Judge submitted his
    report 08.05.2003 after holding inquiry, Rule 2007
    was not in force. Rule 100 of 2007 Rules repealed
    14
    the earlier Rule of Juvenile Justice (Care and
    Protection of Children) Rules, 2001. Rule 100 of
    2007 Rules is as follows: –
    “100. Repeal. – The Juvenile
    Justice (Care and Protection of
    Children) Rules, 2001, notified
    vide F.No.1-3/2001-SD, dated the
    22nd June, 2001 in the Gazette of
    India, Extraordinary, Part I,
    Section 1 of the same date is
    hereby repealed.”
  16. Thus, the relevant Rule occupying the field in
    the present case were 2001 Rules. Rule 22 of 2001
    Rules dealt with “procedure to followed by a board
    in the holding inquiry in the determination of
    age.” Rule 22 sub-sub-Rule (5) which is relevant
    for the present case is as follows: –
    “22(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;
    (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
    15
    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.”
  17. We are of the view that the relevant Rules
    which were required to be looked into are the
    Juvenile Justice (Care and Protection of Children)
    Rules, 2001.
  18. The High Court had no occasion to consider the
    issue since the appellant has not pressed the
    issue before the High Court, we are of the view
    that it shall be appropriate that the High Court
    be requested to consider the question of
    juvenility of the appellant afresh before
    proceeding to decide the appeal.
  19. The interest of justice be served by setting
    aside the order dated 30.01.2015 passed by the
    16
    Punjab and Haryana High Court and remit the
    question of juvenility to the High Court for
    consideration. The High Court before deciding the
    appeal on merit may consider the question of
    juvenility on the basis of the relevant materials
    on record. The documents which were sought to be
    submitted before the High Court by the appellant
    be also taken on record and the High Court may
    reconsider the issue on the basis of materials on
    record as well as the report of the Sessions Judge
    which was sought by the High Court. The order
    dated 30.01.2015 passed by the High Court is set
    aside. The appeals are disposed of accordingly.
    ………………………….J.
    ( ASHOK BHUSHAN )
    ………………………….J.
    ( K.M.JOSEPH)
    NEW DELHI,
    FEBRUARY 15, 2019.