2 July 2021 12:04 PM GMT
The Allahabad High Court has observed that an ossification test at a belated stage after the advancement of age of the accused or convict cannot be conclusive so as to determine him as a juvenile on the date of the incident.Setting aside the order of determination of age passed by the Juvenile Justice Board, a division bench comprising of Justice Pradeep Kumar Srivastava and Justice...
The Allahabad High Court has observed that an ossification test at a belated stage after the advancement of age of the accused or convict cannot be conclusive so as to determine him as a juvenile on the date of the incident.
Setting aside the order of determination of age passed by the Juvenile Justice Board, a division bench comprising of Justice Pradeep Kumar Srivastava and Justice Sunita Agarwal observed thus:
"The ossification test at a belated stage after advancement of age of the accused/convict cannot be conclusive to determine him as a juvenile on the date of the incident, as the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of the person but is not of a conclusive and incontrovertible nature and it is subject to a margin of error."
The development came in a habeas corpus plea filed for release of one Kiranpal from District Jail Agra challenging his detention to be in violation of Art. 21.
Kiranpal was convicted and sentenced for life imprisonment under sec. 302 read with sec. 149 IPC, seven years rigorous imprisonment under sec. 307 read with sec. 149 IPC; and six months rigorous imprisonment under sec. 323 read with sec. 149 of IPC.
It was stated that vide order passed by the Juvenile Justice Board dated 19th September 2018, he was declared as a juvenile after he was found to be 17 years, 9 months and 25 days old on the date of the incident. The aforesaid order was not challenged and had therefore attained finality.
The Court analysed sec. 7A of the Juvenile Justice Act, 2015 which obliges the Court to make an inquiry regarding age of the accused on the date of the incident.
"From a reading of the said provision, it is clear that it provides that when a person is brought before the Court (Juvenile Justice Board), it is obliged to ascertain the age of that person and for the purpose of enquiry, the board shall take such evidence as may be necessary and then record a finding whether the person is a juvenile or child or not, stating his age as nearly as may be. Under Rule 12 of Rules, 2007 framed under Juvenile Justice Act, 2000, the Board is enjoined to take evidence for determination of age." The Court said.
The Court was thus of the opinion that once enquiry is initiated, the evidence brought before the Court have to be appreciated to ascertain the age of the person who claims to be a juvenile.
"The claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improper claim of juvenility must be rejected." The Court said.
Coming to the facts of the case, the Court was of the view that as per the medical report submitted on the directions of the Juvenile Justice Board, the determination of age of the petitioner was made thereby giving a "variation of two years in upper age limit". The report had also made an assessment of physical characteristics of the petitioner so as to ascertain his physical and dental development.
Looking at the said medical report, the Court observed thus:
"Had the questions relating to age of elder siblings of the petitioner and difference in their age asked by the Board from his mother, answers to them might have thrown some light in regard to the estimated age of the petitioner. Being liberal in directing for the enquiry is another thing but at the stage of determination of age, decision has to taken on proper appreciation of evidence on the record and not on whims and fancies."
"No doubt the standard of proof for age determination is the degree of probability and not proof beyond doubt. But the determination of age, in a given case, has to be made keeping in mind the object of the benevolent legislation, the Juvenile Justice Act, that all persons who were juvenile on the date of commission of offence should be given benefit of the Act but those who are taking plea of minor as a plea of alibi should be shown the doors at the threshold." The Court said.
Observing that the object of the Juvenile Justice Act has not been followed in the instant matter of determination of age of the petitioner, the Court held that "The ossification tests/radiological examination of the petitioner is not complete. The Juvenile Justice Board has committed a grave error of law in treating the radiological report as ossification test and making determination of age of the petitioner/applicant solely on the basis of that."
"The writ of habeas corpus cannot be issued in the instant case to release the petitioner as his detention in the District Jail, Agra cannot be said to be illegal. No other instance of violation of fundamental rights of the petitioner (a prisoner in jail) could be placed before us. The order of determination of age of the petitioner passed by the Juvenile Justice Board, Bulandshahr is not sustainable in the eye of law." The Court observed while dismissing the habeas corpus plea.
Title: Kiranpal @ Kinna v. State Of U.P. And 2 Others
Click Here To Read Judgment