# Monish v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2023) 3 ILRA 823
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-09
- **Case number:** Crl. Misc. Bail Application No. 55026 of 2021
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/monish-v-state-of-u-p-ors-opp-parties-49854
- **Pages:** 32

## Headnote

(A) Criminal Law- The Juvenile Justice
(Care and Protection of Children) Act,
2015 - Section 94 - Presumption and
determination of age, The Juvenile Justice
(Care and Protection of Children) Rules,
2007 - Rule 12(3) - Procedure to be
followed
in
determination
of
Age
,
Juvenile Justice (Care and Protection of
Children) Act, 2000 - Section 49 , The
Juvenile Justice (Care and Protection of
Children) Model Rules, 2016 - Rule 54
(18) (iv) - Procedure in cases of offences
against children - The Protection of
Children from Sexual Offences Act, 2012 -
Sections 3⁄4 , Section 29 , Section 34 -
Procedure in case of commission of
offence by child and determination of age
by Special Court - Indian Penal Code, 1860
-Sections 376, 506 , The Schedule Castes
And The Schedule Tribes (Prevention of
Atrocities ) Act , 1989 - Sections 3(2)(v),
3(2)(va), 3(1)(2) of SC/ST Act - The Code
of criminal procedure, 1973 - Sections
161,164 - Engagement of fundamental
rights in bail jurisprudence is a constant in
constitutional law. (Para -71)

Applicant
(major)
committed
inappropriate
sexual acts with victim (minor) - prosecution
case set out in FIR - victim is 15 years old, but
her age is 13 years and 3 months - material
inconsistencies in the age related evidence -
victim falsely shown as minor - applicant and
victim were intimate -F.I.R. is a result of an
opposition of victim's parents - applicant not a
flight risk - applicant always cooperated with
investigation - applicant on interim bail. (Para -
2, 96)

(B)
The
Juvenile
Justice
(Care
and
Protection of Children) Act, 2015 - Section
94 - Presumption and determination of
age - at the stage of bail - Whether age of
the
victim
will
be
determined
in
accordance with Section 94 of the JJ Act,
2015? - If not - manner of assessing the
age of a victim in a bail application under
the POCSO Act when a challenge is laid to
it by an accused - HELD - Section 94 of the
JJ Act, 2015 should not be applied to bail
824 INDIAN LAW REPORTS ALLAHABAD SERIES
applications, as it would violate the right of bail
of the accused - manner of consideration of age
of a victim in a bail application under the POCSO
Act should be guided by the line of enquiry and
relevant factors - JJ Act, 2015 requires the
consideration of age related documents such as
school certificates, date of birth certificates, and
medical reports for age determination - accused
has a right to assail the veracity of the victim's
age .(Para - 13, 91, 92, 93)

(C) The Protection of Children from Sexual
Offences
Act,
2012
-
Section
29
-
presumption of culpable intent under
Section 29 of the POCSO Act, 2012 -
Whether attracted against the accused at
the stage of bail? - HELD - not applicable
at pretrial bails - court must consider the
defence of the accused at all stages of
prosecution.(Para -13,94)

HELD:-Court
obligated
to
independently
evaluate the challenge laid to the victim's age -
assessment of age in a bail order is tentative -
based on probative value of documents - not
advisable
to
lay
down
an
inflexible
or
straitjacket formula for grant of bail. Applicant
is a law abiding citizen who has cooperated with
the investigation and is not a flight risk. No
evidence of forceful entry in the house of victim.
Victim does not have any criminal history apart
from the instant case.(Para - 93)

Bail application allowed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,992 of 105,388. This is a partial read: ask again with offset=39992 for what follows._

3 All. Monish Vs. State of U.P. & Ors.
823
parties, taking into consideration the role
assigned
to
the
applicants
as
per
prosecution case, gravity and nature of
accusation as well as reasons mentioned
above, this Court is of the view that no case
for exercising its discretionary power under
section 438 Code of Criminal Procedure is
made out in favour of applicant.

19. Accordingly this application under
section 438 Cr.P.C. is rejected with liberty
to avail appropriate remedy as provided
under the law.

20. It is clarified that observations
made in this order at this stage is
limited for the purpose of determination
of this anticipatory bail application and
will in no way be construed as an
expression on the merits of the case.
The investigating officer of this case
shall be absolutely free to arrive at its
independent conclusions according to
law on the basis of materials/evidences
on record.
----------
(2023) 3 ILRA 823
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.02.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

Crl. Misc. Bail Application No. 55026 of 2021
with
Crl. Misc. Bail Applications No. 38452 of 2021,
42694 of 2021, 50905 of 2021, 38124 of 2021,
10907 of 2022, 45095 of 2021, 2135 of 2022,
55734 of 2021

Monish ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Shiv Prakash Tiwari
Counsel for the Respondent:
G.A.

(A) Criminal Law- The Juvenile Justice
(Care and Protection of Children) Act,
2015 - Section 94 - Presumption and
determination of age, The Juvenile Justice
(Care and Protection of Children) Rules,
2007 - Rule 12(3) - Procedure to be
followed
in
determination
of
Age
,
Juvenile Justice (Care and Protection of
Children) Act, 2000 - Section 49 , The
Juvenile Justice (Care and Protection of
Children) Model Rules, 2016 - Rule 54
(18) (iv) - Procedure in cases of offences
against children - The Protection of
Children from Sexual Offences Act, 2012 -
Sections 3⁄4 , Section 29 , Section 34 -
Procedure in case of commission of
offence by child and determination of age
by Special Court - Indian Penal Code, 1860
-Sections 376, 506 , The Schedule Castes
And The Schedule Tribes (Prevention of
Atrocities ) Act , 1989 - Sections 3(2)(v),
3(2)(va), 3(1)(2) of SC/ST Act - The Code
of criminal procedure, 1973 - Sections
161,164 - Engagement of fundamental
rights in bail jurisprudence is a constant in
constitutional law. (Para -71)

Applicant
(major)
committed
inappropriate
sexual acts with victim (minor) - prosecution
case set out in FIR - victim is 15 years old, but
her age is 13 years and 3 months - material
inconsistencies in the age related evidence -
victim falsely shown as minor - applicant and
victim were intimate -F.I.R. is a result of an
opposition of victim's parents - applicant not a
flight risk - applicant always cooperated with
investigation - applicant on interim bail. (Para -
2, 96)

(B)
The
Juvenile
Justice
(Care
and
Protection of Children) Act, 2015 - Section
94 - Presumption and determination of
age - at the stage of bail - Whether age of
the
victim
will
be
determined
in
accordance with Section 94 of the JJ Act,
2015? - If not - manner of assessing the
age of a victim in a bail application under
the POCSO Act when a challenge is laid to
it by an accused - HELD - Section 94 of the
JJ Act, 2015 should not be applied to bail
824 INDIAN LAW REPORTS ALLAHABAD SERIES
applications, as it would violate the right of bail
of the accused - manner of consideration of age
of a victim in a bail application under the POCSO
Act should be guided by the line of enquiry and
relevant factors - JJ Act, 2015 requires the
consideration of age related documents such as
school certificates, date of birth certificates, and
medical reports for age determination - accused
has a right to assail the veracity of the victim's
age .(Para - 13, 91, 92, 93)

(C) The Protection of Children from Sexual
Offences
Act,
2012
-
Section
29
-
presumption of culpable intent under
Section 29 of the POCSO Act, 2012 -
Whether attracted against the accused at
the stage of bail? - HELD - not applicable
at pretrial bails - court must consider the
defence of the accused at all stages of
prosecution.(Para -13,94)

HELD:-Court
obligated
to
independently
evaluate the challenge laid to the victim's age -
assessment of age in a bail order is tentative -
based on probative value of documents - not
advisable
to
lay
down
an
inflexible
or
straitjacket formula for grant of bail. Applicant
is a law abiding citizen who has cooperated with
the investigation and is not a flight risk. No
evidence of forceful entry in the house of victim.
Victim does not have any criminal history apart
from the instant case.(Para - 93)

Bail application allowed. (E-7)

List of Cases cited:
1. Bhola Bhagat Vs St. of Bihar , (1997) 8 SCC
720

2. Jitendra Ram Vs St. of Jhar. , (2006) 9 SCC
428

3. Babloo Pasi Vs St. of Jhar. , (2008) 13 SCC
133

4. Jabar Singh Vs Dinesh & anr. , (2010) 3 SCC
757

5. Prakash Rai Vs St. of Bihar, (2008) 15 SCC
223

6. Ravinder Singh Gorkhi Vs St. of U.P. , (2006)
5 SCC 584
7. Gopinath Ghosh Vs St. of W.B. , 1984 Supp
SCC 228

8. Bhoop Ram Vs St. of U.P. , (1989) 3 SCC 1

9. Bhola Bhagat Vs St. of Bihar , (1997) 8 SCC
720

10. Hari Ram Vs St. of Raj. , (2009) 13 SCC 211

11. Abuzar Hossain @ Gulam Hossain Vs St. of
W.B. , (2012) 10 SCC 489

12. Mahadeo Vs St. of Mah. & anr. , (2013) 14
SCC 637

13. St. of M.P. Vs Anoop Singh, (2015) 7 SCC
773

14. Jarnail Singh Vs St. of Har. , (2013) 7 SCC 263

15. Parag Bhati (Juvenile) through Legal
Guardian-Mother-Rajni Bhati Vs St. of U.P. & anr.
, (2016) 12 SCC 744

16. Ashwani Kumar Saxena Vs St. of M.P. ,
(2012) 9 SCC 750

17. Abuzar Hussain @ Gulam Hossain Vs St. of
W.B. , 2012 (10) SCC 489

18. Sanjeev Kumar Gupta Vs The St. of U.P. &
anr. , (2019) 12 SCC 370

19. Ram Vijay Singh Vs St. of U.P. , Criminal
Appeal No. 175 of 2021

20. Rishipal Singh Solanki Vs St. of U.P. & ors. ,
(2022) 8 SCC 602

21. Mukarrab & ors. Vs St. of U.P. , (2017) 2
SCC 210

22. Noor Aga Vs St. of Punj. , (2008) 16 SCC
417

23. Tofan Singh Vs St. of T.N. , (2021) 4 SCC 1

24. St. of Bihar Vs Rajballav Prasad @ Rajballav
Prasad Yadav ,(2017) 2 SCC 178

25. Sahid Hossain Biswas Vs St. of W.B. , 2017
SCC Online Cal 5023
3 All. Monish Vs. State of U.P. & Ors.
825
26. Navin Dhaniram Baraiye Vs The St. of Mah.,
2018 SCC Online Bom 1281

27. Joy V.S. Vs St. of Kerala , 2019 SCC Online
Ker 783

28. Dharmander Singh Vs St. (Govt. of NCT of
Delhi) , 2020 SCC Online Del 1267

29. Maneka Gandhi Vs U.O.I. , (1978) 4 SCC
494

30. Narendra Singh Vs St. of M.P , (2004) 10
SCC 699

31. Ranjitsing Brahmajeetsing Sharma Vs St. of
Mah. , 2005 (5) SCC 294

32. Gudikanti Narasimhulu & ors. Vs P.P., H.C.
of A.P. , (1978) 1 SCC 240

33. Hussain & anr. Vs U.O.I. ,(2017) 5 SCC 702

34. Emperor Vs H.L. Hutchinson & anr. , AIR
1931 All 356

35. Ranjitsingh Brahmajeetsing Sharma Vs St. of
Mah. , (2005) 5 SCC 294

36. Nikesh Tarachand Shah Vs U.O.I. & anr. ,
(2018) 11 SCC 1

37. Maneka Gandhi Vs U.O.I. , (1978) 4 SCC
494

38. Arnab Manoranjan Goswami Vs St. of Mah.
& ors.,2020 SCC Online 964

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The judgement is being structured
in the following conceptual framework to
facilitate the discussion:

I
Introduction
II
Submissions of learned counsels
III
Issues arising for consideration
IV
Statutory Schemes
V
Section 94 of the JJ Act : Case Laws
VI
The Two Presumptions:
a.
Presumption of correctness of a
JJ Act, 2015
b.
Presumption u/s 29 of POCSO A
VII Norms of fair trial and presumptions
under Section 94 of the JJ Act and
Section 29 of POCSO Act &
applicability of the said Act to
determine the age of the victim
VIII Right of Bail:

a.
Constitutional perspectives
b.
Parameters of bail under the PO
IX
Bails
under
POCSO
Act
:
Conclusions

a. Section 94 of JJ Act, 2015 & bails
b. Sections 29 and 30 of POCSO A
X
Order on bail application

I. Introduction:

2. The prosecution case is briefly this.
The victim is a minor. The applicant
committed inappropriate sexual acts with
her. The applicant is a major.

3. Shri S. P. Tiwari, learned counsel
for the applicant has assailed the age of the
victim as shown in the prosecution case and
has made these submissions:

(i). A false date of birth was got
recorded in the school registers by the
parents of the victim to give her an
advantage in life.

(ii). Various documents like Pariwar
Register and Aadhar card which reflect her
826 INDIAN LAW REPORTS ALLAHABAD SERIES
true age and contradict the prosecution case
have not been produced.

(iii). The pathological report reflects
that the victim is 17 years of age.

(iv). The victim is in fact a major.
However, no medical examination to
determine her age as per the latest scientific
criteria and medical protocol was got done
by expert doctors as it would falsify the
prosecution case.

(v). Inconsistencies in the age of the
victim as stated in the F.I.R., the statement
of the victim under Section 161 Cr.P.C.,
Section 164 Cr.P.C., school certificate and
the age in the pathological report discredit
the prosecution case regarding the victim's
minority.

4. In Ashish Haldhar Vs. State of UP
(Criminal Misc. Bail Application No. 10907
of 2022), it is contended by Shri Safiullah,
learned counsel for the applicant that the age
of the victim as per the radiological/medical
report is 18 years. However, the school
certificate records her age 13 years 06 months
and 27 days. The victim in her statements
under Sections 161 Cr.P.C. and Section 164
Cr.P.C. has asserted that she is 18 years of
age. The F.I.R. as well as the statement of the
first informant depict the age of the victim as
14 years.

5. Similar discrepancies in respect of
the age of the victim are exist in other
connected bail applications as well.

6. Shri Rishi Chaddha, learned
Additional Government Advocate for the
State contends that Section 94 of the Juvenile
Justice (Care and Protection of Children) Act,
20151 contemplates that the age depicted in
the
documents
enumerated
therein
is
conclusive and the same cannot be put to
challenge in bail proceedings. Further, the
offence is disclosed in the F.I.R. which alone
is sufficient to trigger the presumption of
guilt under Section 29 of the Protection of
Children from Sexual Offences Act, 20122.

7. A number of members of the Bar
submit that these two larger questions of law
crop up regularly in bail applications under
the POCSO Act, 2012. The issue needs to be
decided in order to end the ambiguity in law.

8. The same questions of law arise in all
the companion bail applications.

9. At this stage, the Court requested the
members of the Bar to assist the Court on the
questions of law.

10. Apart from the counsels for the
applicants, Shri Nazrul Islam Jafri, learned
Senior Counsel assisted by Ms. Nasira Adil;
Shri Vinay Saran, learned Senior Counsel
assisted by Shri Saumitra Dwivedi, learned
counsel; Shri Shwetashwa Agrawal, learned
counsel; Shri Rajiv Lochan Shukla, learned
counsel and Ms. Gunjan Jadwani, learned
counsel kindly volunteered to assist the
Court.

11. On behalf of the State Shri Rishi
Chaddha, learned Additional Government
Advocate for the State has made his
submissions.

II. Submissions on behalf of learned
counsel for the applicants and learned
members of the Bar:

12. Learned counsel for the applicant
and other members of the Bar have
contended that:

(i). Age of a victim has to be factored
in while considering a bail application
under POCSO Act offences.
3 All. Monish Vs. State of U.P. & Ors.
827

(ii). The accused can challenge the age
of a victim in bail proceedings.

(iii). Attention is called to the liberal
interpretation of the enquiry under Section
94 of the JJ Act, 2015 by authorities in
point.

(iv). The presumptions under Section
94 of the JJ Act, 2015 and Section 29 of the
POCSO Act, 2012 can not prejudice the
rights of an accused at the stage of bail.

(v). A large number of cases under the
POCSO Act relate to runaway couples, and
arise from family opposition to such
relationships. In bail application excluding
evidence or limiting the challenge to the
age of the victim which is often on the
borderline of majority and at times false,
would result in miscarriage of justice for
the accused.

Submissions on behalf of the State
by learned AGA:

(i). POCSO Act is a special Act where
the
legislature
has
made
stringent
provisions to protect the interests of victims
who are minors.

(ii). Section 94 of the JJ Act, 2015
shall be strictly interpreted and applied at
the bail stage to implement the intent of the
legislature.

(iii). The presumption of Section 29 of
the POCSO Act, 2012 is triggered at the
lodgement of the F.I.R. otherwise its
purpose will be defeated.

(iv). The legislative intent was clearly
to restrict the right of bail considering the
gravity of the offences.

III. Issues arising for consideration:

13. Following questions of law thus
arise
for
consideration
in
the
bail
application and the other companion bail
applications:

I. Whether at the stage of bail the age
of the victim will be determined in
accordance with Section 94 of the JJ Act,
2015? If not what is the manner of
assessing the age of a victim in a bail
application under the POCSO Act when a
challenge is laid to it by an accused?

II.
Whether
the
presumption
of
culpable intent under Section 29 of the
POCSO Act, 2012 is attracted against the
accused at the stage of bail?

IV. Statutory Schemes:

14. The determination of age of a
child victim under the POCSO Act has to
be made in accordance with the procedure
for determination of age contemplated in
Section 94 of the JJ Act, 2015 read with
Rule 54 (18) (iv) of the Juvenile Justice
(Care and Protection of Children) Model
Rules, 20163. The provisions state thus:

"94.
Presumption
and
determination of age. (1) Where, it is
obvious to the Committee or the Board,
based on the appearance of the person
brought before it under any of the
provisions of this Act (other than for the
purpose of giving evidence) that the said
person is a child, the Committee or the
Board 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.

(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Committee or
the Board, as the case may be, shall
undertake the process of age determination,
by seeking evidence by obtaining--

(i) the date of birth certificate from the
school, or the matriculation or equivalent
828 INDIAN LAW REPORTS ALLAHABAD SERIES
certificate from the concerned examination
Board, if available; and in the absence
thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii)
and
only
in
the
absence
of(i)and(ii)above, age shall be determined
by an ossification test or any other latest
medical age determination test conducted
on the orders of the Committee or the
Board:

Provided such 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.

(3)
The
age
recorded
by
the
Committee or the Board 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 54 (18) (iv) of the J.J. Rules,
2016:

"54. Procedure in cases of offences
against children.- (18) (iv) For the age
determination of the victim, in relation to
offences against children under the Act, the
same procedures mandated for the Board
and the Committee under section 94 of the
Act to be followed."

15. The procedure for determination
of age of a child is provided in Section 34
of the POCSO Act, 2012. The provision is
being extracted hereinunder:

"34.
Procedure
in
case
of
commission of offence by child and
determination of age by Special Court.
(1) Where any offence under this Act is
committed by a child, such child shall be
dealt with under the provisions of1[the
Juvenile Justice (Care and Protection of
Children) Act, 2015 (2 of 2016)].

(2) If any question arises in any
proceeding before the Special Court
whether a person is a child or not, such
question shall be determined by the Special
Court after satisfying itself about the age of
such person and it shall record in writing its
reasons for such determination.

(3) No order made by the Special
Court shall be deemed to be invalid merely
by any subsequent proof that the age of a
personas determined by it under subsection (2) was not the correct age of that
person."

16. Section 49 of Juvenile Justice
(Care and Protection of Children) Act,
20004 read with Rule 12(3) of the Juvenile
Justice (Care and Protection of Children)
Rules, 20075 are reproduced below:

"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,
3 All. Monish Vs. State of U.P. & Ors.
829
be deemed to be the true age of that
person."

Rule 12(3) of JJ Rules, 2007:

"12. Procedure to be followed in
determination of Age: (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.

and, 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."

V. Section 94 of JJ Act : Case Laws:

17. Organic development of legal
discourse is a salient feature of statutory
enactments and judicial precedents dealing
with juveniles in conflict with law and
child victims of crime. JJ Act, 2000 read
with JJ Rules, 2007 which preceded the
current
enactment
will
aid
the
understanding of evolution of law, and
assist the interpretation of the extant
statutes.

18. While interpreting the scope and
purpose of Section 32 of the Juvenile
Justice Act, 1986, a provision in pari
materia with Section 49 of the JJ Act, 2000,
the Supreme Court in Bhola Bhagat v.
State of Bihar6 observed thus:

"18. ..when a plea is raised on
behalf of an accused that he was a
"child" within the meaning of the
definition of the expression under the
Act, it becomes obligatory for the
court, in case it entertains any doubt
about the age as claimed by the
accused, to hold an inquiry itself for
determination of the question of age of
the accused or cause an enquiry to be
held and seek a report regarding the
same, if necessary, by asking the
parties to lead evidence in that regard.
Keeping in view the beneficial nature of
the socially oriented legislation, it is an
obligation of the court where such a plea
is raised to examine that plea with care
and it cannot fold its hands and without
returning a positive finding regarding
that plea, deny the benefit of the
provisions of an accused. The court must
hold an enquiry and return a finding
regarding the age, one way or the
other..." (emphasis supplied)
830 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Jitendra Ram v. State of
Jharkhand7 clarified that an unentitled
person cannot be dealt with leniently only
on the plea of delinquency advanced by the
accused. The issue of juvenility according
to Jitendra Ram (supra) had to be judged
in the facts and circumstances of each case
on merits.

20. Rule 22 of the Jharkhand Juvenile
Justice (Care and Protection of Children)
Rules, 2003 which is in pari materia with
Rule 12 of the JJ Rules, 2007, was in issue
in Babloo Pasi v. State of Jharkhand8.
The Supreme Court in Babloo Pasi (supra)
declined to lay down a universal formula
for
age
determination,
and
instead
reiterated the need to judge every case on
the basis of materials and evidences before
the Court by holding as under:

"22. It is well settled that it is neither
feasible nor desirable to lay down an
abstract formula to determine the age of
a person. The date of birth is to be
determined on the basis of material on
record and on appreciation of evidence
adduced by the parties. The Medical
evidence as to the age of a person,
though a very useful guiding factor, is
not conclusive and has to be considered
along with other cogent evidence."
 (emphasis supplied)

21. Evidentiary value of documents
like date of birth entry in school registers
and manner of proving medical board
opinions were appraised in the following
manner in Babloo Pasi (supra):

"27. ...Section 35 of the said Act lays
down that an entry in any public or other
official book, register, record, stating a fact
in issue or relevant fact made by a public
servant in the discharge of his official duty
especially enjoined by the law of the
country is itself a relevant fact.

28. It is trite that to render a document
admissible
under
Section
35,
three
conditions have to be satisfied, namely: (i)
entry that is relied on must be one in a
public or other official book, register or
record; (ii) it must be an entry stating a fact
in issue or a relevant fact, and (iii) it must
be made by a public servant in discharge of
his official duties, or in performance of his
duty especially enjoined by law. An entry
relating to date of birth made in the
school register is relevant and admissible
under Section 35 of the Act but the entry
regarding the age of a person in a school
register is of not much evidentiary value
to prove the age of the person in the
absence of the material on which the age
was recorded. (emphasis supplied)

29.Therefore, on facts at hand, in the
absence of evidence to show on what
material the entry in the Voters List in the
name of the accused was made, a mere
production of a copy of the Voters List,
though a public document, in terms of
Section 35, was not sufficient to prove the
age of the accused. Similarly, though a
reference to the report of the Medical
Board, showing the age of the accused as
17-18 years, has been made but there is no
indication in the order whether the Board
had summoned any of the members of the
Medical
Board
and
recorded
their
statement. It also appears that the physical
appearance of the accused, has weighed
with the Board in coming to the afore-noted
conclusion, which again may not be a
decisive factor to determine the age of a
delinquent."

 (emphasis supplied)

22. The issue of age determination
under the scheme of JJ Act, 2000 read with
JJ Rules, 2007 was examined in Jabar
3 All. Monish Vs. State of U.P. & Ors.
831
Singh v. Dinesh and another9 in light of
Section 35 of the Evidence Act by stating
forth:

"27... The entry of date of birth of
Respondent No.1 in the admission form,
the school records and transfer certificates
did not satisfy the conditions laid down in
Section 35 of the Evidence Act inasmuch as
the entry was not in any public or official
register and was not made either by a
public servant in the discharge of his
official duty or by any person in
performance of a duty specially enjoined
by the law of the country and, therefore, the
entry was not relevant under Section 35 of
the Evidence Act for the purpose of
determining the age of Respondent No.1 at
the time of commission of the alleged
offence."

23. Jabar Singh (supra) also reprised
the law laid down in Jyoti Prakash Rai v.
State of Bihar10 and Ravinder Singh
Gorkhi v. State of U.P.11 that age has to
be determined under the said statutes in the
facts and circumstances of each case and
upon evaluation of evidence before the
Court.

24. In Jitendra Singh (supra) the
Supreme
Court
reiterated
its
earlier
decisions in Gopinath Ghosh v. State of
West Bengal12, Bhoop Ram v. State of
U.P.13, Bhola Bhagat v. State of Bihar14,
and Hari Ram v. State of Rajasthan15
and did not limit the scope of an inquiry
into age determination after a prima facie
case for such inquiry was made out by
stating:

"9.The burden of making out a prima
facie case for directing an enquiry has been
in our opinion discharged in the instant
case inasmuch as the appellant has filed
along with the application a copy of the
school leaving certificate and the marksheet
which mentions the date of birth of the
appellant to be 24-5-1988. The medical
examination to which the High Court has
referred in its order granting bail to the
appellant also suggests the age of the
appellant being 17 years on the date of the
examination.
These
documents
are
sufficient at this stage for directing an
enquiry and verification of the facts.

10. We may all the same hasten to add
that the material referred to above is yet to
be verified and its genuineness and
credibility determined. There are no doubt
certain telltale circumstances that may raise
a suspicion about the genuineness of the
documents relied upon by the appellant.
For instance, the deceased Asha Devi who
was married to the appellant was according
to Dr. Ashok Kumar Shukla, Pathologist,
District Hospital, Rae Bareilly aged 19
years at the time of her death. This would
mean as though the appellant husband was
much younger to his wife which is not the
usual practice in the Indian context and
may happen but infrequently. So also the
fact that the appellant obtained the school
leaving certificate as late as on 17-11-2009
i.e. after the conclusion of the trial and
disposal of the first appeal by the High
Court, may call for a close scrutiny and
examination of the relevant school record
to determine whether the same is free from
any suspicion, fabrication or manipulation.
It is also alleged that the electoral rolls
showed the age of the accused to be around
20 years while the extract from the
panchayat register showed him to be 19
years old.
11. All these aspects would call for close
and careful scrutiny by the court below
while determining the age of the appellant.
The date of birth of appellant Jitendra
Singh's siblings and his parents may also
832 INDIAN LAW REPORTS ALLAHABAD SERIES
throw considerable light upon these aspects
and may have to be looked into for a proper
determination of the question. Suffice it to
say while for the present we consider it to
be a case fit for directing an enquiry, that
direction should not be taken as an
expression of any final opinion as regards
the true and correct age of the appellant
which
matter
shall
have
to
be
independently examined on the basis of the
relevant material."

25. Delineating the process of
satisfaction to order an enquiry into
juvenility and the ambit of such an enquiry,
the Supreme Court in Abuzar Hossain
alias Gulam Hossain v. State of West
Bengal16, set forth thus:

"39.2.For making a claim with regard
to juvenility after conviction, the claimant
must produce some material which may
prima facie satisfy the court that an inquiry
into the claim of juvenility is necessary.
Initial burden has to be discharged by the
person who claims juvenility.

39.3 As to what materials would
prima facie satisfy the court and/or are
sufficient for discharging the initial
burden cannot be catalogued nor can it
be laid down as to what weight should be
given to a specific piece of evidence
which
may
be
sufficient
to
raise
presumption
of
juvenility
but
the
documents referred to in Rule 12(3)(a)(i)
to (iii) shall definitely be sufficient for
prima facie satisfaction of the court
about
the
age
of
the
delinquent
necessitating further enquiry under Rule
12. The statement recorded under Section
313 of the Code is too tentative and may
not by itself be sufficient ordinarily to
justify or reject the claim of juvenility. The
credibility and/or acceptability of the
documents
like
the
school
leaving
certificate or the voters' list, etc. obtained
after conviction would depend on the facts
and circumstances of each case and no hard
and fast rule can be prescribed that they
must be prima facie accepted or rejected. In
Akbar
Sheikh2
and
Pawan8
these
documents were not found prima facie
credible while in Jitendra Singh10 the
documents viz., school leaving certificate,
marksheet and the medical report were
treated sufficient for directing an inquiry
and verification of the appellant's age. If
such
documents
prima
facie
inspire
confidence of the court, the court may act
upon such documents for the purposes of
Section 7A and order an enquiry for
determination of the age of the delinquent.

(emphasis supplied)

48. If one were to adopt a wooden
approach, one could say nothing short of
a certificate, whether from the school or
a municipal authority would satisfy the
court's conscience, before directing an
enquiry. But, then directing an enquiry is
not the same thing as declaring the
accused to be a juvenile. The standard of
proof required is different for both. In
the former, the court simply records a
prima facie conclusion. In the latter the
court makes a declaration on evidence,
that it scrutinises and accepts only if it is
worthy of such acceptance. The approach
at the stage of directing the enquiry has of
necessity to be more liberal, lest, there is
avoidable miscarriage of justice. Suffice it
to say that while affidavits may not be
generally accepted as a good enough basis
for directing an enquiry, that they are not so
accepted is not a rule of law but a rule of
prudence. The Court would, therefore, in
each case weigh the relevant factors, insist
upon filing of better affidavits if the need
so arises, and even direct, any additional
information considered relevant including
information regarding the age of the
3 All. Monish Vs. State of U.P. & Ors.
833
parents, the age of siblings and the like, to
be furnished before it decides on a case to
case basis whether or not an enquiry under
Section 7A ought to be conducted. It will
eventually depend on how the court
evaluates such material for a prima facie
conclusion that the Court may or may not
direct an enquiry."

(emphasis supplied)

26. The Supreme Court in Mahadeo
v. State of Maharasthra and another17
applied Rule 12(3)(b) of JJ Rules, 2007 for
determination of age of a victim and held:

"12. .....Under Rule 12 (3) (b), it is
specifically provided that only in the
absence of alternative methods described
under 12 (3) (a) (i) to (iii), the medical
opinion can be sought for. In the light of
such a statutory rule prevailing for
ascertainment of the age of a juvenile, in
our
considered
opinion,
the
same
yardstick can be rightly followed by the
Courts for the purpose of ascertaining
the age of a victim as well.
(emphasis supplied)

13. In the light of our above reasoning,
in the case on hand, there were certificates
issued by the school in which the
prosecutrix did her Vth standard and in the
school leaving certificate issued by the said
school under Exhibit 54, the date of birth of
the prosecutrix has been clearly noted as
20.05.1990, and this document was also
proved by PW-11. Apart from the transfer
certificate as well as the admission form
maintained by the primary school Latur,
where the prosecutrix had her initial
education, also confirmed the date of birth
as 20.5.1990. The reliance placed upon the
said evidence by the Courts below to arrive
at the age of the prosecutrix to hold that the
prosecutrix was below 18 years of age at
the time of the occurrence was perfectly
justified and we do not find any good
grounds to interfere with the same."

27. The ratio in Mahadeo (supra) was
followed in the State of Madhya Pradesh
v. Anoop Singh18.

28. However, while applying JJ
Rules, 2007 to determine the age of a
victim, the Supreme Court in Jarnail
Singh v. State of Haryana19 took a strict
view of the provisions and narrowed the
scope of the enquiry to determine the
victim's age by holding:

"23.Even though Rule 12 is strictly
applicable only to determine the age of a
child in conflict with law, we are of the
view that the aforesaid statutory provision
should be the basis for determining age,
even for a child who is a victim of crime.
For, in our view, there is hardly any
difference in so far as the issue of minority
is concerned, between a child in conflict
with law, and a child who is a victim of
crime.
Therefore,
in
our
considered
opinion, it would be just and appropriate to
apply Rule 12 of the 2007 Rules, to
determine the age of the prosecutrix VWPW6. The manner of determining age
conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under
the aforesaid provision, the age of a child is
ascertained, by adopting the first available
basis, out of a number of options postulated
in Rule 12(3). If, in the scheme of options
under Rule 12(3), an option is expressed in
a preceding clause, it has overriding effect
over an option expressed in a subsequent
clause. The highest rated option available,
would conclusively determine the age of a
minor. In the scheme of Rule 12(3),
matriculation (or equivalent) certificate of
the concerned child, is the highest rated
option. In case, the said certificate is
834 INDIAN LAW REPORTS ALLAHABAD SERIES
available, no other evidence can be relied
upon. Only in the absence of the said
certificate,
Rule
12(3),
envisages
consideration of the date of birth entered, in
the school first attended by the child. In
case such an entry of date of birth is
available, the date of birth depicted therein
is liable to be treated as final and
conclusive, and no other material is to be
relied upon. Only in the absence of such
entry, Rule 12(3) postulates reliance on a
birth certificate issued by a corporation or a
municipal authority or a panchayat. Yet
again, if such a certificate is available, then
no other material whatsoever is to be taken
into consideration, for determining the age
of the child concerned, as the said
certificate would conclusively determine
the age of the child. It is only in the
absence of any of the aforesaid, that Rule
12(3) postulates the determination of age of
the concerned child, on the basis of medical
opinion."

29. An accused person could not
access protection under JJ Act, 2000, if the
intent was only to cheat justice. Parag
Bhati
(Juvenile)
through
Legal
Guardian-Mother-Rajni Bhati v. State of
Uttar Pradesh and another20, cautioned
that:

"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 for this special protection under
the Juvenile Justice 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.

 (emphasis supplied)

35. The benefit of the principle of
benevolent legislation attached to the JJ Act
would thus apply to only such cases
wherein the accused is held to be a juvenile
on the basis of at least prima facie evidence
regarding his minority as the benefit of the
possibilities of two views in regard to the
age of the alleged accused who is involved
in grave and serious offence which he
committed and gave effect to it in a wellplanned manner reflecting his maturity of
mind rather than innocence indicating that
his plea of juvenility is more in the nature
of a shield to dodge or dupe the arms of
law, cannot be allowed to come to his
rescue."

30. Relying on the ratio of Abuzar
Hossain (supra), it was held in Parag
Bhati (supra), that contradictory evidence
was sufficient to cause an inquiry into the
issue of age of the accused :

"36. It is settled position of law that if
the matriculation or equivalent certificates
are available and there is no other material
to prove the correctness, the date of birth
mentioned in the matriculation certificate
has to be treated as a conclusive proof of
the date of birth of the accused. However,
if there is any doubt or a contradictory
stand is being taken by the accused
which raises a doubt on the correctness
of the date of birth then as laid down by
this Court in Abuzar Hossain (supra), an
enquiry for determination of the age of
the accused is permissible which has
been done in the present case."
3 All. Monish Vs. State of U.P. & Ors.
835
 (emphasis supplied)

31. A discordant view was taken by a
two judge Bench of the Supreme Court in
Ashwani Kumar Saxena Vs. State of
M.P.21 which restricted the jurisdiction of
the court and prohibited a detailed enquiry
into determination of age in view of the
provisions of JJ Act, 2000 read with JJ
Rules, 2007.

32. However, the precedential value
of Ashwani Kumar Saxena (supra) has to
be viewed in light of these facts. The
holdings of a three Judge Bench of the
Supreme Court in Abuzar Hussain alias
Gulam Hossain Vs. State of West
Bengal22 was not referred to the Supreme
Court in Ashwani Kumar Saxena (supra).
Jabar Singh (supra), a coordinate Bench
judgement continues to be good law.
Finally
an
integrated
view
of
the
controversy was taken in Sanjeev Kumar
Gupta Vs. The State of Uttar Pradesh
and another23.

33. Sanjeev Kumar Gupta (supra)
adopted a liberal approach and widened the
scope of an enquiry determining the age
consistent with the holding in Abuzar
Hossain (supra), but opposed to a more
constricted enquiry as contemplated in
Ashwani Kumar Saxena (supra) or
Jarnail Singh (supra) on the following
footing:

"15. The above decision in Abuzar
Hossain alias Gulam Hossain (supra) was
rendered on 10 October 2012.