S.B Sinha, J.— Leave granted.
2. How to determine the age of a juvenile in delinquency within the meaning of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short “the Act”) is in question in this appeal which arises out of a judgment and order dated 11-9-2007 passed by a learned Single Judge of the Delhi High Court in Criminal Revision No. 156 of 2007 whereby and whereunder an order dated 20-1-2007 passed by a learned Additional Sessions Judge, Delhi, was set aside.
3. The appellant before us is the first informant, the father of a boy, Parakh Chadha @ Sunny who was kidnapped for ransom and later on murdered. He was aged about 20 years. He was found missing after he had gone out with his friends on 18-1-2003. A missing report was lodged on the said date. On or about 19-1-2003, Respondent 1 was suspected of involvement in the said crime by the police. He, on the basis of the investigation carried out for the said purpose was charge-sheeted for commission of offence under Sections 302/364/34 of the Penal Code, 1860 by the court. Although the first information report was lodged on 19-1-2003, Respondent 1 was arrested on 4-5-2003. A charge-sheet was filed on 22-7-2003 wherein it was recorded that calls for payment of ransom were being made from time to time and last of such call for payment of ransom was received on 11-3-2003. In regard to the finding out of the dead body of Parakh Chadha, DD No. 40 under Sections 302/201 of the Penal Code was separately registered.
4. Upon his production, Respondent 1 did not claim himself to be a juvenile. Charges were framed. The prosecution started adduction of evidence on or about 3-2-2005. Only on 31-5-2005 Respondent 1 herein filed an application for transfer of the case to the Juvenile Board on the plea that he was a “juvenile” on the date of occurrence. A school leaving certificate was also produced. The learned Additional Sessions Judge, trying the case, directed the investigating officer to submit a report. The report pursuant thereto reads as under:
“Inquiry conducted into the matter reveals that Vikas Choudhary was admitted to Class I in Lawrence School of Ashok Vihar, Phase-I, Delhi vide Admission No. 412. The date of birth showed in the register 20-1-1985. There is no birth certificate or other document available in support of date of birth. The date of admission is 17-4-1989.”
5. The learned Sessions Judge was not satisfied therewith. The investigating officer was directed to get Respondent 1 medically examined for getting his age determined. Pursuant thereto or in furtherance thereof, the respondent was examined medically. A report was submitted on 9-8-2005. It reads as under:
“HRH Medical Report
Advise x-ray as per dorsal spine, medial ends of clavicles, V-C scapulae in bony feature upper ending element, lower ends of radius iliac crusts have fixed. Interior angle of scapula, acromial processes, iliac crests, medial ends of clavicles are ischial lubordsiles show fusion of their epiphysis. Upper end lower surfaces of vertebra show no fusion of their end plates. Radiological age is in between 22-25 yr.”
The learned Judge on the said report, opined:
“The report of Dr. P.K Jain, Senior Radiologist about the bone age x-ray determination of accused Vikas Choudhary received today. As per the report, the age of accused/applicant Vikas Choudhary on the date of his examination was between 22-25 years. On calculation, the age of accused Vikas Choudhary on the date of incident i.e 18-1-2003 comes to be 19 years and 5 months. So far as the matriculation certificate of accused/applicant Vikas Choudhary is concerned, it is a common practice that parents mention the age of their children on the lesser side in the school in order to avail the benefit in the services later on. Hence, no weightage can be given to the matriculation certificate in the presence of medical evidence, which shows that the applicant/accused Vikas Choudhary was more than 19 years of age on the date of incident.
Considering the totality of the circumstances, I prima facie hold that the present applicant/accused Vikas Choudhary was major at the time of occurrence. The application for sending him to the Juvenile Court stands dismissed.”
6. On a revision application filed thereagainst before the High Court, it by an order dated 31-8-2006 set aside the said order and directed:
“Anyhow, these are the matters which require a more detailed examination particularly in view of the fact that there exists a school certificate wherein the date of birth of the petitioner has been given. The veracity of the school certificate and transfer certificate submitted by the petitioner is not doubted. In these circumstances, the impugned order is set aside and the learned Additional Sessions Judge is directed to consider the matter afresh and if it appears to the learned Additional Sessions Judge that the petitioner is a juvenile on the basis of the material on records, he is required to be sent to the Juvenile Justice Board for further proceedings.”
7. Again by reason of an order dated 20-1-2007 the learned Judge held:
“As per school leaving certificate, the date of birth of the accused is 20-1-1985. The only question before the Court is whether the school leaving certificate of the accused has to be relied upon or bone age x-ray record is to be relied upon. School leaving certificate of the accused was verified during the proceedings and report was filed by IO wherein it has been mentioned that no birth certificate or other certificate is available in support of the date of the accused in the school record.”
Relying on the decision of this Court in Pratap Singh v. State of Jharkhand (2005) 3 SCC 551 it was held:
“From the judgments cited by the learned APP, it is clear that to ascertain the age of accused persons only school leaving certificate cannot be relied upon alone and the court has to see all the other facts and circumstances along with the other material placed on record. If assuming that the age of the accused was 22 years on the date of his examination as per bone age x-ray examination report, after giving margin of two years from the age reported up to 25 years, even then on the date of alleged offence, he was more than 18 years of age. According to the conviction slip dated 4-5-2003, of the accused, which was filled on the basis of the information given by the accused, the age of the accused has been mentioned as 19 years and even after calculation, he was more than 18 years of age on the date of alleged offence.”
8. The respondent moved the High Court again in revision. By reason of the impugned judgment dated 11-9-2007, the High Court held:
“As far as the ossification test and the medical evidence is concerned there too the approach of the learned Additional Sessions Judge is in my opinion, erroneous. According to the expert the petitioner was 22-25 years on the date of his examination i.e 9-8-2005. The learned Additional Sessions Judge acknowledged that such determination is a rough estimate and the individual would have to be given benefit by deducing some years but proceeded to do so from the outer age indicated. This is an incorrect approach as the juvenile is entitled to beneficial interpretation in such case. Therefore, the two years deduction made would have be (sic) from the lower age indicated, namely, 22 years. That would mean that as in August 2005 the petitioner was probably 20 years; as on the date of incident (20-1-2003) in all probability he was less than 18 years. This interpretation is also in consonance with the claims based on the board certificate relied upon by the petitioner.”
9. Mr Sushil Kumar, learned Senior Counsel appearing on behalf of the appellant would submit:
(1) That the High Court committed a serious error in passing the impugned judgment insofar as it failed to take into consideration that from the conduct of Respondent 1 it is evident that he did not claim to be a juvenile at the first instance and only when the trial started, he filed a purported school leaving certificate, which is suspect.
(2) The approach of the High Court in analysing the medical report is not correct as the starting point should not have been taken to be 22 but should have been taken at 25.
(3) In any event, having regard to the provisions contained in Section 472 of the Code of Criminal Procedure the offence must be held to have been a continuous one and as ransom calls were being made till 11-3-2003, the said date should be considered to be the cut-off date for the purpose of determination of the age.
10. Mr G.K Kaushik, learned counsel appearing on behalf of Respondent 1 on the other hand would submit:
1. That at all stages 18-1-2003 has been taken to be the date of occurrence, and even the charges have been framed on the premise that the occurrence had taken place on the said date.
2. The conclusion of the High Court that the appellant, on 17-1-2003, would be 17 years 5 months corroborates with the medical report that if on the date of his examination, Respondent 1 is taken to be 22 years of age.
11. The age of a “juvenile in delinquency” must be determined as and when an application is filed. In view of the decision of the Constitution Bench in Pratap Singh (2005) 3 SCC 551 it is no longer res integra that the relevant date for determination of the age of the accused would be the date on which the occurrence took place.
12. What would be the date on which offence has been committed in a given case has to be decided having regard to the fact situation obtaining therein. Indisputably our criminal laws contemplate a continuing offence. Section 472 of the Code of Criminal Procedure reads as under:
“472. Continuing offence.—In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues.”
13. If an offence has been a continuing offence, then the age of the juvenile in delinquency should be determined with reference to the date on which the offence is said to have been committed by the accused.
14. It may be true that the prosecution proceeded on the basis that the entire offence had taken place on 18-1-2003. We have, however, been taken through the charge-sheet, from a perusal whereof it appears that the appellant had been getting calls for payment of ransom despite the fact that the deceased had, in the meanwhile, been killed. It is one thing to say that a missing report has been filed on a particular date but it is another thing to say that in a case of this nature when the actual offence(s) had taken place would remain uncertain. Giving calls for payment of ransom is an offence. In case of murder coupled with abduction in a given case it may be considered to be a continuous offence.
15. This Court in a catena of decisions have laid down the criteria for determining the age. We would notice some of them.
16. In Ravinder Singh Gorkhi v. State of U.P (2006) 5 SCC 584 this Court opined:
“38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.
39. We are, therefore, of the opinion that until the age of a person is required to be determined in a manner laid down under a statute, different standard of proof should not be adopted. It is no doubt true that the court must strike a balance. In case of a dispute, the court may appreciate the evidence having regard to the facts and circumstances of the case. It would be a duty of the court of law to accord the benefit to a juvenile, provided he is one. To give the same benefit to a person who in fact is not a juvenile may cause injustice to the victim.”
(emphasis supplied)
This aspect of the matter has also been considered in Jitendra Ram v. State of Jharkhand (2006) 9 SCC 428 wherein it was held:
“20. We are, however, not oblivious of the decision of this Court in Bhola Bhagat v. State of Bihar (1997) 8 SCC 720 wherein an obligation has been cast on the court that where such a plea is raised having regard to the beneficial nature of the socially oriented legislation, the same should be examined with great care. We are, however, of the opinion that the same would not mean that a person who is not entitled to the benefit of the said Act would be dealt with leniently only because such a plea is raised. Each plea must be judged on its own merit. Each case has to be considered on the basis of the materials brought on records.”
(emphasis supplied)
17. This Court in Jyoti Prakash Rai v. State of Bihar (2008) 15 SCC 223, JT (2008) 3 SC 397 held:
“15. It is in the aforementioned situation, we are of the opinion that the test which may be applied herein would be to take the average of the age as opined by both the medical boards. Even applying that test, the age of the appellant as on 1-4-2001 would be above 18 years.
16. We, however, hasten to add that we have taken recourse to the said method only for the purpose of this case and we do not intend to lay down any general proposition of law in this behalf. As indicated hereinbefore, in so doing, we have also taken into consideration the fact that the appellant had filed documents in support of his claim that he was a juvenile but the same were found to be forged and fabricated which is itself a factor to show that he was making attempts to obtain a benefit to which he might not have been entitled to.”
(See also Balu v. State of T.N (2008) 14 SCC 463, JT (2008) 2 SC 321)
18. The question came up for consideration recently again in Jameel v. State of Maharashtra (2007) 11 SCC 420, (2007) 2 Scale 32 wherein it has been held:
“9. It was furthermore submitted that although the age of the appellant on the date of the occurrence was more than sixteen years but below eighteen years, having regard to the provision of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ‘the 2000 Act’), it was imperative on the part of the Court to follow the procedures laid down therein.
13. So far as the submission of the learned counsel in regard to the applicability of the 2000 Act is concerned, it is not in dispute that the appellant on the date of occurrence had completed sixteen years of age. The offence having been committed on 16-12-1989, the 2000 Act has no application. In terms of Juvenile Justice Act, 1986, ‘juvenile’ was defined to mean ‘a boy who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years’.”
19*. We have, however, been informed that the effect of Model Rules having come into force and, if so, the applicability thereof may have to be considered in a given case but keeping in view the facts of the case, we are of the opinion that the matter may be considered afresh in the light of the provisions of Section 472 of the Code of Criminal Procedure by the learned trial court. The judgment of the High Court is set aside accordingly. The appeal is allowed.
20*. Applications for modification/clarification of order dated 2-11-2007 and bail have become infructuous and are dismissed as such.