October 4, 2022
pleadings

Claim of Juvenility in Sexual Offences: Procedure

Question of juvenility arise in sexual offence many times when accused is under 20 years’ age. Reason is obvious, if it is proved that accused is juvenile, his punishment will be lenient but if he is proved as major, then he will be prosecuted as per the provisions of IPC which prescribes severe punishments for sexual offences.

Section 7A of JJ Act

When the question of juvenility of the accused is considered, Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short “the JJ Act”) which was in force at that time comes into play.

Section 7A of the JJ Act reads as follows:

“7A. Procedure to be followed when claim of juvenility is raised before any court.

  • 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 inquiry, 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.

  • If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect.”

 Rule 12(3) of JJ Rules 2007

Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short ‘the 2007 Rules’), reads as:

  • 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 – –
  • (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;

  • 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”

Thus, Age determination inquiry contemplated under Section 7A of the Act r/w 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.
  • Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school.
  • Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need 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 obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable.
  • In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
  • Once the court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law.

 It has been made clear in sub-section (5) or 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 the Rule 12.

Supreme court’s Attitude on Procedure followed for Inquiry

In Ashwani Kumar Saxena v. State of M.P[1], the Supreme Court has held as follows:

“The procedure to be followed under the J.J. Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules. We cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the court exercising powers under Section 7A of the Act.

Many of the cases, we have come across, it is seen that the Criminal Courts are still having the hangover of the procedure of trial or inquiry under the Code as if they are trying an offence under the Penal laws forgetting the fact that the specific procedure has been laid down in Section 7A read with Rule 12.

We also remind all Courts/J.J. Board and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate etc. mentioned in Rule 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 who from their legal disability stand in need of protection.

Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc.

There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business.

Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination”.

Section 7A of the JJ Act gives right to any accused to raise the question of juvenility at any point of time and if such an issue is raised, the Court is under an obligation to make an inquiry and deal with that claim. What is discernible from the dictum laid down in Ashwani Kumar Saxena (supra) is that, in deciding whether an accused is juvenile or not, a hyper technical approach should not be adopted. While appreciating the evidence adduced on behalf of the accused in support of the plea that he is a juvenile, if two views are possible on the same evidence, the court should lean in favour of holding the accused to be juvenile in borderline cases.

What can be presented to prove Juvenility?

The extract of the admission register kept in the school in which the accused first attended can be accepted in evidence. This document bears the seal of the school. It is signed by the Headmaster of the school which appears above his designation seal.[2]

Following the above dictum, in Alex v. State of Kerala[3], a Division Bench of Kerala High Court has held that, the document produced to prove the date of birth or the age of the child victim, shall be the certificate from the school which the child first attended.

This view was reiterated by the Division Bench in Santhosh v. State of Kerala (2021 (4) KHC 527).

In Alex (supra), it has been held that the accused has no obligation to invite the prosecution to establish the date of birth of the victim. It is the bounden duty of the prosecution to establish every material fact and circumstance before the trial court.

Procedure after proving Juvenility Claim

As per Section 7A(2) of the JJ Act, if the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Juvenile Justice Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect.

As per Section 15 of the JJ Act, 2000, the maximum punishment that can be imposed upon a juvenile is to direct that he shall be sent to a Special Home for a period not exceeding three years.


[1] AIR 2013 SC 553

[2] Jarnail Singh v. State of Haryana: AIR 2013 SC 3467, see also, Shayam Sivan v. state of Kerala, (2020)

[3] 2021 (2) KLD 434