POCSO: HOW TO SETTLE AGE CONTROVERSY
As per
POCSO (Protection of
Children From Sexual Offences Act) 2012 (In short POCSO) cases, age of the victim often comes to
centre stage, in as much as, in order to attract the provision of POCSO, the
requisites are to be fulfilled and one of the pre-requisite being age of the
victim. Even age of the delinquent shall also have significance in certain
cases.
Before delving further it is necessary
to point out that a delinquent juvenile on the date of incident has certain
statutory protection under the provisions of The Juvenile Justice (Care &
Protection of Children) Act, 2015 JJ Act,
2015( In short JJ Act). Similarly, whether POCSO Act 2012 shall be attracted if
the victim is a child within the meaning of the POCSO Act and therefore age of
the victim is also important.
The Juvenile Justice (care &
Protection of Children) Act, 2000 was enacted with a view to consolidate
law and also provide for amendment in respect of juvenile in conflict with law.
It was felt necessary to provide safeguard and care by adopting child friendly
approach, not only in abstract, but also during the process of adjudication of
case related to a child with underlying object of rehabilitating the children.
As the
present discussion revolves around the age of the delinquent and victim in
POCSO cases, therefore, the focus shall be on that aspect. In this context, JJ
Act 2000 and amended JJ Act of 2015 shall be of much significance.
The Supreme
Court judgment captioned as Rishipal Singh Solanki vs The State Of
Uttar Pradesh bearing criminal appeal
no. 1240/2021 arising out of SLP (Crl) No. 6223/2021 shall provide insight on
several issues in this regard with a view to come to conclusion.
PRESUMPTION
OF AGE
Section 94 of the Juvenile Justice Act,
2015 raises a presumption regarding juvenility of the age of the child brought
before the JJ board or the Committee. But in case, the Board or Committee has
reasonable grounds for doubt about the person brought before it is a child or
not, it can undertake the process of determination of age by seeking evidence.
Thus, in the initial stage a presumption that the child brought before the
Committee or the Juvenile Justice Board is a juvenile has to be drawn by the
said authorities. However, the said presumption should not be arbitrary and if
there is reasonable grounds of doubt regarding the person brought before
it is a child or not, the Board can undertake the process of age determination
by the evidence which can be in the following form:
(i) Date of birth certificate from the
school or the Matriculation certificate from the concerned board, if available
or in the absence thereof;
(ii) The birth certificate given by a
corporation or by a municipal authority or a panchayat and in the absence of
the above;
(iii) Age has to be determined by an
ossification test or any other medical age determination test conducted on the
orders of the committee or the board.
Ossification test
The Ossification test is a test
related to bone for determination of proximate age of the person. The said test
may determine the age of a person based on degree
of fusion of bone since birth and up to 25 years of age. The process of ossification
is also called as osteogenesis. This
is an indicator of skeletal and biological age of a person and may help in
determining the age of the concerned. The radiography of wrist and hand is
relevant till around age of Eighteen (18) years and beyond that i.e up to 22
years of age, the medial age of clavicle is relevant. Though, ossification test
is often used in case of doubt and in absence of any corresponding documentary
proof, still, for determining the age, the ossification test cannot be held to
be a conclusive proof, in itself. Moreover, the said test is relevant when the
individual is young and the same may not be useful, when the individual is say
around 40-45 years of age. In fact, after 30 years of age the ossification test
is not generally resorted to by the courts. (Ref: Vinod katara Vs State of Uttar
Pradesh 2022 SCC OnLineSC 1204.
It is significant to point out that The
deeming provision in sub-section (3) of section 94 of the Juvenile Justice Act,
2015 sets at rest the controversy or the doubt regarding the age of the child
brought before the Committee or the JJ Board at the level of the JJ Board
or the Committee itself.
The moot point in this context are as under:
Whether the JJ
Board has blanket authority in the above reference and in the teeth of section
94 of the JJ Act, 2015?
Whether the Juvenile
Justice Board( JJB) shall be entitled to declare that Matriculation certificate
is a conclusive document for determining the age of the juvenile irrespective
of other material discrepancies in the oral testimony of the witnesses or other
documents being produced?
The law on this
point is as under:
(i)
Parag
Bhati Vs State of Uttar Pradesh (2016) 12 SCC 744 The
Supreme Court in para 34 has held as under:
"34.It is no doubt true that
if there is a clear and unambiguous case in favour of the juvenile accused that
he was a minor below the age of 18 years on the date of the incident and the
documentary evidence at least prima facie proves the same, he would be entitled
to the special protection under the JJ Act. But when an accused commits a
grave and heinous offence and thereafter attempts to take statutory shelter
under the guise of being a minor, a casual or cavalier approach while recording
as to whether an accused is a juvenile or not cannot be permitted as the Courts
are enjoined upon to perform their duties with the object of protecting the
confidence of common man in the institution entrusted with the administration
of justice”.
(ii)
Sanjay
Kumar Gupta Vs State of Uttar Pradesh & Anr (2019)
12 SCC 370;
(iii)
Abuzar
Hossain Vs State of West Bengal (2012)
10 SCC 489.
In the
above judgments it is held that age shown in the Matriculation certificate
cannot be accepted on its face value if there is other evidence which
contradicts the same.
However
in Ashwani
Kumar Saxena Vs State of M.P (2012) 9 SCC 750,it is held that the Matriculation
certificate is a document on which full reliance could be placed for
determination of the age of the juvenile accused.
(i) In Babloo Pasi
Vs State of Jharkhand (2008) 13 SCC 133
(ii) State
of MP Vs Anoop Singh (2015) 7 SCC 773
In
(i) & (ii) above, even ossification test is held to be not conclusive for
determination of age.
We
know that the Juvenile Justice (Care and Protection of Children) Act 2000
has since been repealed and comprehensively changed new Act in the name of JJ
Act 2015 is now in place. In the 2000 Act, an amendment was made by Act 33 of
2006 with effect from 22.8.2006 under which Section 7 A was inserted which
reads 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 orders and the sentence, if any, passed by a court shall be deemed
to have no effect.” Section 49 of the said Act reads as under:
“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 juvenile or the child or not, stating his age as nearly as may be.
(2) No order of a
competent authority shall be deemed to have become invalid merely by any
subsequent proof that the person in respect of whom the order has been made is
not a juvenile or the child, and the age recorded by the competent authority to
be the age of person so brought before it, shall for the purpose of this Act,
be deemed to be the true age of that person.”
Rule 12 of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 (hereinafter referred to as the ‘JJ Rules, 2007’) prescribed the
procedures for determination of age.
Rule 12 reads as under –
“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.
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.”
JJ ACT 2015
As per JJ Act, 2015, the procedure to
be followed when a claim of juvenility is raised before any court, other than a
Board is stipulated under Section 9 (2) & (3).The same is as under:
“2) In case a person alleged to have
committed an offence claims before a court other than a Board, that the person
is a child or was a child on the date of commission of the offence, or if the
court itself is of the opinion that the person was a child on the date of
commission of the offence, the said court shall make an inquiry, take such
evidence as may be necessary (but not an affidavit) to determine the age
of such person, and shall record a finding on the matter, stating the age of
the person as nearly as may be:
Provided that such a
claim may be raised before any court and it shall be recognised at any stage,
even after final disposal of the case, and such a claim shall be determined in
accordance with the provisions contained in this Act and the rules made
thereunder even if the person has ceased to be a child on or before the date of
commencement of this Act.
(3) If the court finds
that a person has committed an offence and was a child on the date of
commission of such offence, it shall forward the child to the Board for passing
appropriate orders and the sentence, if any, passed by the court shall be
deemed to have no effect.” There is no corresponding Rule to determine
juvenility akin to Rule 12 of the JJ Rules, 2007.
As per Section 94 of the JJ Act, 2015, a presumption is raised
when a person is brought before the JJ Board or the Child Welfare Committee
(‘Committee’ for short) (other than for the purpose of giving evidence) and the
said person is a child, the JJ Board or the Committee shall record such
observation stating the age of the child as nearly as may be, and proceed with
the inquiry under Section 14 or Section 36, as the case may be, without
waiting for further confirmation of the age.
The age determination test conducted on the order of the Committee
or the Board shall be completed within fifteen days from the date of such
order. The age recorded by the Committee or the Board to be the age of
person so brought before it shall, for the purpose of the Act, be deemed to be
the true age of that person. For immediate reference section 94 of JJ Act, 2015
is extracted as under:
The distinction between provisions of JJ
Act, 2015 in the absence of requisite documents as mentioned in Sub-section (2)
of Section 94 (a) & (b) on the one
hand and provisions under Rule 12 of the JJ Rules, 2007 for determination of
the age of the juvenile or child is worth mentioning.
There are following differences in the procedure under the two
enactments:
|
JJ
Act 2000 (2007 Rules) |
JJ
Act 2015 |
|
(i)
Under Rule 12 of the JJ Rules, 2007,
in the absence of relevant documents, a medical opinion had to be sought from
a duly constituted Medical Board which would declare the age of the juvenile
or child |
(ii)
(i) In absence of documents relating
to age, There is provision for determination of the age by an ossification
test or any other medical age related test to be conducted on the orders of
the Committee or the JJ Board as per Section 94 of the said Act |
|
(ii)
The documents to be provided as evidence under Rule 12 of the JJ Rules, 2007 |
(iii)
(ii) Under Section 94(2) the same
are provided as substantive provision. |
|
(iii) The age of person so brought before it, for the purpose of
the Act, be deemed to be the true age of that person, irrespective of any
subsequent proof to the contrary. |
(iii)
Also deals with presumption and
determination of age, the Committee or the JJ Board has to record such
observation stating the age of the child as nearly as may be and proceed with
the inquiry without waiting for further confirmation of the age. It is
only when the Committee or the JJ Board has reasonable grounds for doubt
regarding whether the person brought before it is a child or not, it can
undertake the process of age determination, by seeking evidence. Thus, there is a finality attached to the determination of the
age recorded and it is only in a case where reasonable grounds exist for
doubt as to whether the person brought before the Committee or the Board is a
child or not, that a process of age determination by seeking evidence has to
be undertaken. |
In Rishipal
Singh Solanki (Supra) in para 39.5, the Supreme Court has
held:
“The Court where the plea of
juvenility is raised for the first time should always be guided by the
objectives of the 2000 Act and be alive to the position that the beneficent and
salutary provisions contained in the 2000 Act are not defeated by the hyper
technical approach and the persons who are entitled to get benefits of the 2000
Act shall get such benefits. 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”.
What therefore clearly emerges from
the above discussions and as per the dicta of Rishipal (Supra) is that the
Supreme Court has held that the age recorded by the Committee or the Board to
be the age of the person so brought before it shall for the purpose of the JJ
Act, 2015 be deemed to be the true age of the person. The deeming provision in
sub-section (3) of section 94 of the JJ Act, 2015 is also significant inasmuch
as the controversy or the doubt regarding the age of the child brought before
the Committee or the JJ Board is sought to be set at rest at the level of
the JJ Board or the Committee itself, if there is no other document indicating
the date of birth of the person concerned, contrary to what has been indicated
in the matriculation certificate. If any evidence to the contrary is produced,
then other evidences could be necessary such as ossification test. The very
fact that section 94 of JJ act 2015 itself is a deeming provision, the finality
of its finding is made inbuilt, unless, contrary is proved by rebuttal
evidence. The ossification test in isolation is not a conclusive proof as
regards the age, but still, in the case of doubt the ossification test also
could also be conducted. The hyper technicalities in this regard is not recommended
as per the dicta of Supreme Court.
-------
Anil
K Khaware
Founder
& Senior Associate
Societylawandjustice.com
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