Vimal Chadha v. Vikas Choudhary and Another
S.B. SINHA, J. 1. 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 E
appeal which arises out of a judgment and order dated 11th Sep
tember, 2001 passed by a learned Single Judge of the Delhi
High Court in Criminal Revision No. 156 of 2007 whereby and
whereunder an order dated 201h January, 2007 passed by a
learned Additional Session Judge, Delhi, was set aside.
3. Appellant before us is the first informant, the father of a
boy, Parkash Chadha @ Sunny who was kidnapped for ran
som and later on murdered. He was aged about 20 years. He
was found missing after he had gone out with his friends on 18th
January, 2003. A missing report was lodged on the said date. G
On or about 19th January, 2003, Respondent No.1 was sus
pected of involvement in the said crime by the police. He, on
the basis of the investigation carried out for the said purpose
charge-sheeted for commission of offence under Sections 302/
364/34 of the Indian Penal Court by the Court. Although the first H
A information report was lodged on 19th January, 2003, the re
spondent No.1 was arrested on 4th May, 2003. A charge sheet
was filed on 22nd July, 2003 wherein it was recorded that calls
for payment of ransom were being made from time to time and
last of such c_all for payment of ransom was received on 11th
B March, 2003. In regard to the finding out of the dead body of
Parakh Chadha DD No. 40 under Section 302/201 of the In
dian Penal Code was separately registered.
4. Upon his production, the respondent No.1 did not claim
himself to be a juvenile. Charges were framed. The prosecu-
C tion started adduction of evidence on or about 3rd February,
2005. Only on 31 •1 May, 2005 respondent No.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
D Sessions Judge, trying the case, directed the Investigating Of
ficer to submit a report. The report pursuant thereto reads as
under:-
"Inquiry conducted into the matter revelas that Vikas
Choudhary was admitted to Class-I in Lawrence School
of Ashok Vihar Phase-I, Delhi vide Admission N0.412.
The date of birth showed in the register 20.01.1985. There
is no birth certificate or other document available in support
of date of birth. The date of admission is 17.04.1989".
F 5. The learned Sessions Judge was not satisfied there-
with. The Investigating Officer was directed to get the respon
dent No.1 medically examined for getting his age determined.
Pursuant thereto or in furtherance thereof, the respondent was
examined medically. A report was submitted on 9th August, 2005.
G 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
·j
VIMAL CHADHA v. VIKAS CHOUDHARYAND 915
ANOTHER [S.B. SINHA, J.]
. scapula, acromina processes, iliac crests, medial ends A
of clavicles are ischail lubordsiles show fusion of their
epiphysis. Upper end lower surfaces of vertera show no
fusion of their end plates. Radiological ages in between
22-25 yrs."
The learned Judge on the said report, opined :- B
... "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 c
examination was between 22-25 years. On calculation,
the age of accused Vikas Choudhary on the date of
incident, i.e. 18.01.2003 come to be 19 years and 5
months. So far as the matriculation certificate of accused/
applicant Vikas Choudhary is concerned, it is a common D 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 E Choudhary was more than 19 years of age on the date of
incidents.
Considering the totality of the circumstances, I prima
facisely hold that the present applicant/accused Vikas
Choudhary was major at the time of occurrence. The F
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 •1 August, 2006 set aside the
said order and directed :- G
"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 H
A 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
B 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."
c 7. Again by reason of an order dated 20th January, 2007
the learned Judge held:-
"As per School Leaving Certificate, the date of birth of the
accused is 20.01.1985. 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 10 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 and another, [ (2005) 3 sec 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 upto 25 years, even then n the date of alleged
offence, he was more than 18 years of age. According to
the conviction slip dated 04.05.2003, of the accused, which
VIMAL CHADHA v. VIKAS CHOUDHARY AND 917
ANOTHER [S.B. SINHA, J.]
was filled on the basis of the information given by the A
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. Respondent moved the High Court again in revision.
By reason of the impugned judgment dated 11th Septem-
ber, 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. C
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 D
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 E
in August, 2005 the Petitioner was probably 20 years; as
on the date of incident, (20.01.2003) 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.: F
9. Mr. Sushi! 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 in so far as it failed G
to take into consideration that from the conduct of
the respondent No.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. H
A 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 11th May, 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 be
half of respondent No.1 on the other hand would submit:
1. That at all stages 18th January, 2003 has been taken
D 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
is, on 17th January, 2003, would be 17 years 5 months
corroborates with the medical report that if on the
date of examination his examination, respondent
No.1 is taken to be 22 years of age.
11. Determination of age of a 'juvenile in delinquency' must
F be determined as and when an application is filed. In view of
the decision of the Constitution Bench in Pratap Singh (supra)
it is no longer res integra that that the relevant date for determi
nation is the age of the accused would be the date on which the
occurrence took place.
G 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 H
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VIMAL CHADHA v. VIKAS CHOUDHARY AND
ANOTHER [S.B. SINHA, J.]
as under:
"472. Continuing offence.
919
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." B
If an offence has been a continuing offence, then the age
of the juvenile in delinquency should be determined with refer
ence to the date on which the offence is said to have been com
mitted by the accused. It may be true that the prosecution pro
ceeded on the basis that the entire offence had taken place on C
18th January, 2003. We have, however, been taken through the
charge-sheet, from a perusal whereof it appears that the appel
lant 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 E
of murder coupled with abduction in a given case may be con
sidered to be a continuous offence.
13. This Court in a catena of decisions have laid down the
criteria for determining the age. We would notice some of them.
~ F
In Ravinder Singh Gorkhi v. State of UP, [(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 G
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 H
A 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
B 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
c 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
D 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
E 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]
14. This aspect of the matter has also been considered in
Jitendra Ram alias Jitu v. Stateof Jharkhand, [ (2006) 9 SCC
428] wherein it was held :-
"20. We are, however, not oblivious of the decision of this
G Court in Bhola Bhagat v. State of Bihar 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
H same would not mean that a person who is not entitled
...
VIMAL CHADHA v. VIKAS CHOUDHARY AND 921
ANOTHER [S.B. SINHA, J.]
to the benefit of the said Act would be dealt with leniently A
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)
15. This Court in Jyoti Prakash Rai @ Jyoti Prakash v.
State of Bihar, [ JT 2008 (3) SC 397] held :-
"It is in the aforementioned situation, we are of the opinion
that the test which may be applied herein would be to take
, B
the average of the age as opined by both the medical C
boards. Even applying that test, the age of the appellant
as on 01.04.2001 would be above 18 years.
We, however, hasten to add that we have taken recourse
to the said method only for the purpose of this case and D
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 E
making attempts to obtain a benefit to which he might not
have been entitled to."
[ See also Balu@ Bakthvatchalu vs. State of Tamilnadu,
[ JT 2008 (2) SC 321 ]. F
16. The question came up for consideration recently again
in Jameel v. State of Maharashtra, [2007 (2) SCALE 32]
wherein it has been held:-
"9. It was furthermore submitted that although the age of G
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') it was
imperative on the part of the court to follow the procedures H
A 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 body who had not
attained the age of sixteen years or a girl who had attained
the age of eighteen years:.
17. 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 mat-
D ter 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 trial court is set aside accordingly.
The appeal is allowed.
Applications for impleadment, modification/clarification of
order dated 2.11.2007 and bail have become infructuous and
are dismissed as such.
K.K.T. Appeal allowed.
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