S.9(2) JJ Act | Court Must Undertake Inquiry Before Rendering Decision On Plea Of Juvenility Of Accused: Orissa High Court

While setting aside an order for non-compliance of the above provision, the Single Judge Bench of Justice Sashikanta Mishra observed:

“…when such a claim is raised before a court not being a Juvenile Justice Board, it is for the said court to make an enquiry, take such evidence as may be necessary to determine the age and to record a finding in the matter basing thereon. Of course, in doing so, the provisions under Section 94 of the Act can also be considered but the Statute requires that an enquiry should be made and if necessary, evidence may also be taken.”

Factual Background

An FIR was lodged under Sections 458/394/302 of IPC against unknown persons. In the course of investigation, involvement of some persons came to light and charge sheet was submitted against them including the respondent herein. Cognizance was taken and the matter was committed to the Court of Sessions for trial.

The respondent filed an application under Section 2(35) of the JJ Act before the Sessions Court with a prayer to treat him as Juvenile. He produced a School Leaving Certificate issued by the Headmaster of his Government Upper Primary School. The application was objected to by the prosecution on the ground that law does not permit the School Leaving Certificate to be considered as per Section 94(2) of the Act.

The court below found no reason to discard the certificate and was of the view that there was no challenge to the authority of the school-record. It was further held that when two views are possible on the same evidence, the court shall lean in favour of holding the accused to be a juvenile in borderline cases.

Contentions

Counsel for the petitioners argued that the court below not being the Juvenile Justice Board, it ought to have followed the procedure laid down under Section 9(2) of the JJ Act. It was further contended that the certificate was produced belatedly and in all probability was manufactured only for the purpose of claiming juvenility.

Therefore, it was stressed that the court below should have conducted an enquiry and decided the issue basing on the evidence adduced by the parties to determine the age of the accused as required by the Statute.

Priyabrata Tripathy, Additional Standing Counsel for the State fairly conceded that the procedure prescribed in Sub-Section (2) of Section 9 of the Act is required to be followed if the issue of age of the accused is raised. Since the Court below is not the Juvenile Justice Board, the provision under Sub-Section (2) of Section 9 of the Act should have been complied to.

Court’s Observations

Justice Mishra referred Section 9(2) of the JJ Act which reads,

“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.”

After going through the provision, the Court held that when a claim is raised before a court not being a Juvenile Justice Board, it is required that the said court will undertake an inquiry and will also take such evidence as may be necessary to determine the age. It also clarified that while doing so, the Court may consider Section 94 of the Act which provides for ‘presumption and determination of age’.

After perusing the facts on record, the Court came to the finding that the Session Court did not consider the provision under Section 9(2) of the JJ Act. Therefore, the impugned order was set aside and the matter was remitted back to the court below to decide the application afresh by following the mandate under Section 9(2) of the Act.

Case Title: V. Vinay v. Srinu Patro & Anr. and another connected matter

Case No.: CRLREV No. 381 of 2022 & CRLA No. 711 of 2022

Judgment Dated: 16^th December 2022

Coram: Sashikanta Mishra, J.

Counsel for the Petitioners: M/s. P.K. Das & D. Sahoo, Advocates; M/s. Satyabrata Panda, S. Suman, M. Kumar, S. Tibrewal, A. Khandelwal, P. Khandelwal & P. Dutta, Advocates

Counsel for the Respondents: Mr. Priyabrata Tripathy, Addl. Standing Counsel

Citation: 2023 LiveLaw (Ori) 13