Pankaj Saini v. State and Anr

TALWANT SINGH, J NOVEMBER 04, 2022/nk

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* IN THE HIGH COURT OF DELHI AT NEW DELHI % Order pronounced on 04.11.2022 + CRL.M.C. 2380/2020 PANKAJ SAINI ..... Petitioner Through: Mr. Kanhaiya Singhal, Ms. Priyal Garg and Mr. Prasanna, Advocates. versus STATE AND ANR. ..... Respondents Through: Mr. N.S. Bajwa, APP for State with SI Nitesh Sharma, PS Fatehpur Beri. Mr. Pankaj Vashishth & Mr. Salman, Advs. for R-2 with R-2 in person. CORAM: HON'BLE MR. JUSTICE TALWANT SINGH Talwant Singh, J.: 1. The petitioner has filed this petition under Article 227 of the Constitution of India to set aside the impugned order dated 18.09.2020 passed by the learned ASJ in case FIR No.52/2019 registered at PS Fatehpur Beri under Sections 376/363/365 IPC & Section 6 of POCSO Act. The petitioner is the accused in the above case. He had moved an application under Section 34(2) of the POCSO Act read with Section 165 of the Evidence Act praying for conducting ossification test to determine the age of the prosecutrix/complainant, which was dismissed. 1.1 As per the petitioner, the date of birth of complainant is 03.08.1999, however, in the school records, her date of birth is mentioned as 03.08.2001. Hence, an application was moved before the learned Trial Court for determination of the age of the victim. The operative portion of the order passed by the learned Trial Court on this application is reproduced hereunder:- "5. I have carefully considered the submission and perused the record. 6. Here it shall be apposite to reproduce Section 94 (2) of Juvenile Justice (Care and Protection of Children) Act, 2015 which reads as under: Section94: Presumption and determination of age :- (1) ………………. (2) In case, the committee or the Board has reasonable ground 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 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; 7. In case titled as 'Jarnail Singh Vs State of Haryana', decided on 01.07.2013 in Criminal Appeal No.1209/2010, Hon'ble Supreme court held that the provision contained in Juvenile Justice (Care and Protection of Children) Act, 2015 also apply for determining the age of a Child who is a Victim of crime. 8. On bare reading of Section 94 of JJ Act, it is apparent that the age of child is ascertained, by adopting the first available basis, out of number of options postutlated in Rule 94 (2). If, in the scheme of options U/s 94 (2), the 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 minor. In scheme of Section 94 (2) of JJ Act, the date of birth certificate from the school or the matriculation (or equivalent) certificate of concerned child, is highest rated option. In case, the said certificate is available, no other evidence can be relied on. It is only in absence of any of document as envisaged U/s 94 (2) (i) or (ii), Section 94 (2) (iii) postulates the determination of age of concerned child on the basis of medical opinion. In the present case, the matriculation certificate / marksheet or JJ Act, 2015, there is no requirement under law for ordering ossification test of Victim for determining her age. 9. In the present case, father of Victim lodged her missing complaint on 04.02.2019 informing that the Victim "A" aged 17 years 06 moths is missing. The Statement of Victim was recorded U/s 164 Cr.P.C on 08.02.2019. The Victim also disclo