How to determine the age of juvenile in absence of his official record of age?
If there is no officially maintained a record regarding the date of birth of the accused who claims juvenile at the time of commencement of offence. Determination of his age on the date of the commission of the offence is, therefore, possible only by reference to the medical opinion obtained from the duly constituted Medical Board regarding Rule 12(3) (b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007.
Rule 12(3)(b) reads as under (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 an 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 examining his/her age on lower side within the margin of one year. The general rule about age determination is that the age as determined can vary plus minus two years.
Whenever a claim of juvenility is raised before any court, or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the Rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.
The procedure to be followed under the Juvenile Justice Act ( JJ Act) in conducting an inquiry is the procedure laid down in that statute itself, i.e. Rule 12 of the 2007 Rules. Court / Board cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry about the juvenility of a person when the claim of juvenility is raised before the court / Board exercising powers under Section 7-A of the Act.
All courts/Juvenile Justice Boards and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate, etc. mentioned in Rules 12(3)(a)(i) to (iii). The courts in such situations act as a parens patriae because they have a kind of guardianship over minors from their legal disability stand in need of protection.
“Age determination inquiry” contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process:-
- The court can obtain the matriculation or equivalent certificates, if available. or
- The court needs to get the date of birth certificate from the school first attended other than a play school. or
- The court requires to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents)
The question of receiving a medical opinion from a duly constituted Medical Board arises only if the papers as mentioned earlier are unavailable.
Once the court, following the procedures mentioned above, passes an order, that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with the law. It has been made clear in sub-rule (5) of Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of Rule 12. Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination.
The Supreme Court in Babloo Pasi v. State of Jharkhand [(2008) 13 SCC 133] held that “The medical evidence as to the age of a person, though an advantageous guiding factor, is not conclusive and has to be considered along with other cogent evidence.”
In Shah Nawaz v. State of U.P [(2011) 13 SCC 751] the Supreme Court while examining the scope of Rule 12, has reiterated that medical opinion from the Medical Board should be sought only when matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended or any birth certificate issued by a corporation or a municipal authority or a panchayat or municipality is not available.