THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU & KASHMIR) & ORS. v. SHUBAM SANGRA

Citation: [2022] 8 S.C.R. 349; 2022 INSC 1205

Court: Supreme Court of India

Bench: AJAY RASTOGI , J.B. PARDIWALA

Judgment date: 2022-11-16

Case summary

2022 INSC 1205. Supreme Court of India judgment dated 2022-11-16. THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU & KASHMIR) & ORS. v. SHUBAM SANGRA. Read...

Judgment text

[2022] 8 S. C. R. 349 349 THE STATE OF JAMMU & KASHMIR A (NOW U. T. OF JAMMU & KASHMIR) & Ors. v. SHUBAM SANGRA (Criminal Appeal No. 1928 of 2022) B NOVEMBER 16, 2022 [AJAY RASTOGI AND J. B. PARDIWALA, JJ. ] Juvenile Justice: Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Rules, 2014: r. 74 – Plea of Juvenility – C Kathua Rape Case – The Kathua rape case involved abduction, gang rape and murder of an eight year-old girl by six men and the respondent (claiming to be a juvenile) – Special Medical Board opined the age of respondent as above 19 years – However, the CJM, Kathua relied on the deposition of the Executive Officer, Municipal Committee and the deposition of father of respondent D held that respondent was juvenile on date of the commission of the offence – High Court upheld the order of CJM – Hence instant appeal by State – Held: Sub rule (3) of r.

74 provides that in the absence of mentioned certificates or in the event of any contradiction, the authority deciding the issue of age ‘may’ refer E the matter to duly constituted medical board – The word “may” should be read as “shall” having regard to the very object of sub-rule (3) of r.

74 – If there is a clear and unambiguous case in favour of the juvenile accused that he was minor on the date of the incident and the documentary evidence at least prima facie established the same, he would be entitled to the special protection under the F Juvenile Justice Act – Whereas when an accused commits a heinous and grave crime and thereafter attempts to take the statutory shelter under the guise of being a minor, a casual or cavalier approach cannot be permitted while recording as to whether he is a juvenile or not – There is no good reason to overlook or ignore or doubt G the credibility of the final opinion given by a team of five qualified doctor – In the absence of all other acceptable materials, if opinion of the experts points to a reasonable possibility regarding range of his age, the Court must consider the same in the interest of justice – In the instant case, the documents evidencing date of birth did not inspire any confidence and there was no other option but to fall H 349 350 SUPREME COURT REPORTS [2022] 8 S.

C. R. A back on the report of the Special Medical Board in the interest of justice – The order passed by the High Court affirming the CJM’s order was not sustainable in law – Respondent accused was not juvenile at the time of the commission of the offence and, therefore, should be tried the way other co-accused were tried – Juvenile Justice (Care and Protection of Children) Act, 2000 – ss. 7A and 94 B – Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 – ss. 8 and 48. Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013: ss. 8, 48 – Plain reading of s.

8 of the Act, 2013 indicates that whenever a claim of juvenility is raised before any C court or the court is of the opinion that the accused person was a juvenile on the date of the commission of the offence, then it is mandatory for the court to make an inquiry and in the course of such inquiry, the court may take such evidence as may be necessary, however, not an affidavit, so as to determine the age of such person D – At the end of the inquiry, if the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1) of s. 8, then in such circumstance, the court is obliged in law to forward the juvenile to the Juvenile Justice Board for passing appropriate order and the sentence – s. 48 talks about a competent authority, whereas, s. 8 is in respect to the court – However, what is relevant to E note is that in both the Sections the word ‘shall’ has been used.

Word and phrase: “May” – When Mandatory – It is a well settled principle of interpretation that the word ‘may’ when used in legislation by itself does not connote a directory meaning – If in a particular case, in the interests of equity and justice it appears to F the court that the intent of the legislature is to convey a statutory duty, then the use of the word ‘may’ will not prevent the court from giving it a mandatory colour – Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Rules, 2014 – r. 74. Allowing the appeal, the Court G HELD: 1. Sub-rule (3) of Rule 74, makes it abundantly clear that in the absence of the certificates mentioned in sub clause (i) to (iii) or in the event of any contradiction arising therefrom, authority deciding the issue of age may refer the matter to a duly constituted medical board which, in turn, would record its findings H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 351 & KASHMIR) v.

SHUBAM SANGRA and submit to the Juvenile Justice Board. There are discrepancies A in the certificates on record disclosing the date of birth of the respondent. There is no good reason why the matter should not be referred to a duly constituted medical board which shall, in turn, record its findings and submit to the Juvenile Justice Board. The word “may” should be read as “shall” having regard to the B very object of sub-rule (3) of Rule 74. [Para 38][380-F-G; 381-B- C] 2. The plain reading of Section 8 of the Act, 2013 indicates that whenever a claim of juvenility is raised before any court or the court is of the opinion that the accused person was a juvenile C on the date of the commission of the offence, then it is mandatory for the court to make an inquiry and in the course of such inquiry, the court may take such evidence as may be necessary, however, not an affidavit, so as to determine the age of such person.

At the end of the inquiry, if the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1) of D Section 8, then in such circumstance, the court is obliged in law to forward the juvenile to the Juvenile Justice Board for passing appropriate order and the sentence. Section 48 talks about a competent authority, whereas, Section 8 of the Act 2013, is in respect to the court. However, what is relevant to note is that in E both the Sections i. e. , Section 8 as well as Section 48 the word ‘shall’ has been used. [Paras 42 & 44][383-B-D; 383-H; 384-A] 3. 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 on the date of the incident and the documentary evidence at least prima F facie establishes the same, he would be entitled to the special protection under the Juvenile Justice Act.

However, when an accused commits a heinous and grave crime like the one on hand and thereafter attempts to take the 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 G permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of a common man in the institution entrusted with the administration of justice. [Para 72][399-G-H; 400-A] H 352 SUPREME COURT REPORTS [2022] 8 S. C. R. A 4.

There is no good reason why this Court should overlook or ignore or doubt the credibility of the final opinion given by a team of five qualified doctors, one from the Department of Physiology, one from the Department of Anatomy, one from the Department of Oral Diagnosis, one from the Department of Forensic Medicine and one from the Department of Radio B Diagnosis, all saying in one word that on the basis of the physical, dental and radiological examination, the approximate age of the respondent could be fixed between 19 and 23 years. Nothing much has been said on behalf of the respondent accused in regard to the credibility of the medical report prepared by the Special C Medical Board constituting of five medical experts. The only argument is that ignore the medical report as there is proof of the date of birth to be found in the various documents on record.

The documents evidencing date of birth does not inspire any confidence and there is no other option but to fall back on the report of the Special Medical Board in the interest of justice. D [Paras 74 & 77][400-G; 401-F-G] Bachahan Devi v. Nagar Nigam, Gorakhpur (2008) 12 SCC 372 : [2008] 2 SCR 424; Rishipal Singh Solanki v. State of U. P. (2022) 8 SCC 602; Parag Bhati v. State of U. P. , (2016) 12 SCC 744 : [2016] 2 SCR 1089- relied E on. Ramdeo Chauhan alias Raj Nath v. State of Assam (2001) 5 SCC 714 : [2001] 3 SCR 669; Ashwani Kumar Saxena v. State of Madhya Pradesh (2012) 9 SCC 750 : [2012] 10 SCR 540; Darga Ram alias Gunga v. State F of Rajasthan (2015) 2 SCC 775 : [2015] 1 SCR 350; Dhampur Sugar Mills Ltd. v. State of U. P. (2007) 8 SCC 338 : [2007] 10 SCR 245; Mukarrab v. State of Uttar Pradesh (2017) 2 SCC 210 : [2016] 8 SCR 557; Sanjeev Kumar Gupta v. State of Uttar Pradesh (2019) 12 SCC 370 : [2019] 9 SCR 735; Abuzar Hossain @ G Gulam Hossain v.

State of West Bengal (2012) 10 SCC 489 : [2012] 9 SCR 244; Ashwani Kumar Saxena v. State of Madhya Pradesh (2012) 9 SCC 750 : [2012] 10 SCR 540; Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133 : [2008] 14 SCR 161; Arnit Das v. State H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 353 & KASHMIR) v. SHUBAM SANGRA of Bihar, (2000) 5 SCC 488 : [2000] 1 Suppl. SCR 69; A Jitendra Ram alias Jitu v. State of Jharkhand, (2006) 9 SCC 428 : [2006] 1 Suppl. SCR 286; Om Prakash v. State of Rajasthan (2012) 5 SCC 201 : [2012]5 SCR 237- referred to.

Case Law Reference B [2001] 3 SCR 669 referred to Para 32 [2012] 10 SCR 540 referred to Para 35 [2015] 1 SCR 350 referred to Para 35 [2008] 2 SCR 424 relied on Para 39 C [2007] 10 SCR 245 relied on Para 40 [2016] 8 SCR 557 referred to Para 47 (2022) 8 SCC 602 relied on Para 58 D [2016] 2 SCR 1089 relied on Para 58 (i) [2019] 9 SCR 735 referred to Para 58 (ii) [2012] 9 SCR 244 referred to Para 58 (iii) [2012] 10 SCR 540 referred to Para 58 (iv) E [2008] 14 SCR 161 referred to Para 59 (v) [2000] 1 Suppl. SCR 69 referred to Para 58 (vi) [2006] 1 Suppl. SCR 286 referred to Para 58 (vii) [2012] 5 SCR 237 referred to Para 70 F CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1928 of 2022. From the Judgment and Order dated 11. 10. 2019 of the High Court of Jammu and Kashmir at Jammu in CRR No. 27 of 2018. P. S. Patwalia, Sr. Adv. , Shailesh Madiyal, Parth Awasthi, Vaibhav G Sabharwal, Vinayaka S. Pandit, Ms. Harshika Verma, Ms. Taruna Ardhendumauli Prasad, Advs. for the Appellants.

Nitin Sangra, Mrs. Pragya Baghel, Advs. for the Respondent. H 354 SUPREME COURT REPORTS [2022] 8 S. C. R. A The Judgment of the Court was delivered by J. B. PARDIWALA, J. “Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend B themselves. What really needs to be done is teaching men not to rape. Go to the source and start there. ” - Kurt Cobain 1. This appeal is at the instance of the State of Jammu & Kashmir (now U. T. of Jammu & Kashmir) and is directed against the order passed C by the High Court of Jammu & Kashmir at Jammu dated 11. 10. 2019 by which the High Court rejected the Criminal Revision Application No. 27 of 2018 filed by the appellant State herein, thereby affirming the order passed by the Chief Judicial Magistrate, Kathua dated 27. 03.

2018 holding the respondent accused herein to be a juvenile on the date of the D commission of the alleged offence. 2. This litigation originates from the most unfortunate Kathua rape case. The Kathua rape case involved the abduction, gang rape and murder of an eight year-old Muslim girl by name ‘X’ by six Hindu men and the respondent herein (claiming to be a juvenile) in January, 2018 in the E Rasana village near Kathua in Jammu & Kashmir. The victim belonged to the nomadic Bakarwal community. She disappeared for a week before her body was recovered by the villagers a kilometer away from the village. In all eight individuals were arrested in connection with the ghastly crime which includes the respondent herein. Since the respondent herein claimed to be a juvenile, his trial was separated. The other six co-accused F were put to trial and vide the Judgment and Order dated 10. 06. 2019 passed by the trial court, six of the seven accused stood convicted and one accused was acquitted.

Three of those convicted were sentenced to life imprisonment and remaining three to five years rigorous imprisonment. The Special Investigation Team (SIT) was constituted to G probe into the entire matter and ultimately chargesheet came to be filed against all the accused persons. The father of the victim namely ‘Y’ lodged a complaint in the Hira Nagar Police Station stating that his daughter had gone missing. 3. On 17. 01. 2018, the body of the victim was found and taken into H custody by the police. The body was sent for autopsy. The post-mortem THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 355 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] was conducted by a team of doctors at the District Hospital, Kathua on A the same day. On 22. 01. 2018, investigation of the case was transferred to the Crime Branch and Crime Headquarters. 4. The post-mortem revealed the presence of clonazepam in the body of the deceased girl.

The examination by the doctors found that the deceased had been drugged which was sedative, before she was raped B and murdered. The forensic evidence suggested that she had been held on several dates by Sanji Ram, one of the accused persons of the crime. The strands of hair recovered from the temple matched those taken from the deceased. The forensic examination stated that the deceased had been raped multiple times by different men and that she had been C strangulated to death as well as hit on the head by a heavy stone. 5. The Delhi Forensic Science Laboratory analysed fourteen packets of evidence containing vaginal swabs, hair strands, blood samples of four accused, viscera of the deceased girl, the girl’s frock and salwar, simple clay and blood-stained clay. The vaginal swabs matched with the D DNA of the accused as did some other samples. The hair strands found in the temple, where the deceased was raped, matched that of the girl and the accused. 6.

One of the accused persons namely Sanji Ram along with the respondent herein was found to be the main accused in the case. He at E the relevant point of time was the priest of the family temple where the incident allegedly took place. The respondent herein happens to be the nephew of the Sanji Ram. 7. On 10. 06. 2019, six of the seven accused persons were found to be guilty and one was acquitted. Sanji Ram, Deepak Khajuria and Parvesh Kumar were sentenced to life imprisonment for 25 years with F a fine of Rs. One lakh each. The other three accused persons namely Tilak Raj, Anand Dutta and Surinder Kumar were sentenced to five years in jail for destroying crucial evidence in the case. Vishal Jangotra S/o Sanji Ram came to be acquitted due to lack of evidence. The eighth accused, who is yet to be tried claiming to be a juvenile at the time of G commission of the offence, is the respondent herein. 8.

The specific case put up by the prosecution against the respondent herein is contained in the chargesheet reads thus: “ ... He immediately rushed down stairs, took 3 Manars and keys to Devisthan and told ‘X ‘ that he had seen her horses. H 356 SUPREME COURT REPORTS [2022] 8 S. C. R. A He led her to jungle and also called accused Mannu who was already waiting for his signal. Sensing some trouble the victim tried to flee away. The JD stopped her by catching hold of her neck and covered her mouth with one of his hands and pushed her and she fell on the ground. Accused Mannu held her legs and the JCL (respondent) administered Manars B one by one forcibly to the victim. The victim fell unconscious and was raped by JCL... Later on, they took the girl and kept her inside Devisthan under the table over two Chatayees (plastic mats) and then covered her two Darees (cotton thread Mats) ... C At about 8. 30 a. m.

the JCL again went to Devisthan and administered 3 sedatives tablets to the girl while she was unconscious with empty stomach .... ... The accused Vishal Jangotra @Shamma raped ‘X’. Thereafter, JCL also raped the girl in presence of the accused D Mannu. The investigation also revealed that after committing the rape, JCL directed accused Vishal Jangotra @ Shmma and accused Mannu to leave Devisthan. JCL again took out 03 tablets out of the strip which he had kept under a heap of garbage near an electric pole outside the Devisthan and gave the same to the girl and again covered here with mats and E dropped the utensil container in front of her in order to hide her ... During investigation it has been found that after distributing Lohri to relatives in the evening JCL informed accused Sanji Ram that he and accused Vishal Jangotra had committed gang F rape with ‘X’ inside Dev! sthan ....

On the spot accused Deepak Khajuria @Deepu told JCL to wait as he wanted to rape the girl before she is killed. As such once again the little girl ‘X’ was gang raped firstly by accused Deepal Khajuria @Deepu and then by JCL. After committing the barbaric act of rape G on his left thigh and started applying force with his hands on her neck in order to kill her. As accused Deepak Khajuria @Deepu was unsuccessful in killing her another accused JCK killed her by pressing his knees against her back and strangulated the girl by applying force on both the ends of H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 357 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] Chunni. Thereafter, accused JCL, in order to make sure that A the victim is dead, hit her twice on head with stone ... ... As per plan JCL along with accused Vishal Jangotra @Shamma went to Devisthan. Accused Vishal Jangotra @Shamma opened the door while JCL lifted the dead body on his shoulder.

The accused Vishal Jangotra @Shamma B locked the door and JCL disposed the dead body by throwing it inside the jungle while accused Vishal Jangotra @Sham ma was guarding outside bushes ... “ Further, in the Supplementary Charge Sheet dated 09-08-2018 it has been observed as under:- C ... “During the course of investigation, it has already been established that victim was administered sedatives by accused during her captivity. Two tablets recovered on the disclosure of Juvenile in conflict with law near Devsthan Rasana were sent to forensic lab for analysis. The chemical D analysis report obtained thereof, revealed the present of Clonazepam salt in the said tablets. To ascertain the effect of sedatives ‘Mannar’ as well as Clonazepam on the victim with empty stomach, the concerned expert (Professor and Head, Pharmacology, GMC Jammu) has opined that the E sedative Clonazepam (Epitril 0.

Smg) has the following effects:- (1) Drowsiness, (2) Confusion, (3) Impaired, ( 4) Coordination, (5) Slow reflexes, (6) Slowed or stopped breathing, (7) Coma (loss of consciousness) and Death. As per the final opinion of the expert “the peak concentration of Clonazepam is achieved in the blood after F one hour to 1. 5. hours of oral administration. Clonazepam absorption from the enteral route is complete irrespective of administered either with or without food”. ... ” 9. The crime that the respondent accused herein has been charged with is heinous; its execution was vicious and cruel, by any stretch of G imagination. The entire crime was calculated and ruthless. This case captured the attention and indignation of the society across the country, more particularly, in the State of Jammu and Kashmir, as a cruel crime that raised alarm regarding safety within the community. H 358 SUPREME COURT REPORTS [2022] 8 S. C. R. A 10.

Our adjudication in the present litigation is restricted to the question whether the respondent was a juvenile on the date of commission of the offence? It all started with the order dated 21. 02. 2018 passed by the High Court of Jammu & Kashmir in the OWP No. 259 of 2018 with M. P. No. 1 of 2018. The order reads thus: B “In compliance of the order dated 09. 02. 2018, Mr. W S Nargal, learned Senior Additional Advocate General has produced the copy of the status report. After hearing learned counsel for the parties and from perusal of the status report, I deem it appropriate to issue the following directions to the SIT: C 1. That the SIT shall take steps for ascertaining the age of Shubam Sangra within a period of 10 days from today by Medical Board which shall be constituted by Principal, Government Medical College, Jammu; 2.

That the SIT shall also ascertain the whereabouts of Mannu whose name is mentioned in paragraph 6 of the status report D and shall take steps for apprehending the aforesaid Mannu; 3. That the SIT shall also obtain the copy of the post mortem report along with detailed questionnaire which has been supplied by it to the doctors of the Boards conducting the post mortem. E Let a fresh status report with regard to the aforesaid points be filed within a period of two weeks from today. Taking into account the fact that the part of the status report dated 19. 02. 2018 has been published in daily newspaper, F namely, Greater Kashmir, in extensor and taking into account the sensitivity of the matter as well as to ensure free and fair trial, I deem it appropriate to direct that the proceeding of the instant writ petition shall not be published in any newspaper. List on 09. 03. 2018 at the bottom of the list. G 11.

In due compliance with the directions issued by the High Court in its order referred to above, the Special Investigation Team vide its letter dated 26. 02. 2018 requested the Principal, Government Medical College, Jammu to constitute a medical board for the determination of age of the respondent herein. H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 359 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] 12. The Principal and Dean of the Government Medical College, A Jammu constituted a Special Medical Board comprising the following doctors: B C 13. The Special Medical Board constituted, as above, undertook the medical examination of the respondent herein and gave its report dated 03. 3. 2018 which reads thus: D AGE ESTIMATION REPORT Name SHUBHAM SANGRA @ SHUBOO Sex: MALE S/o. Sh. Om Parkash Sangra Address Hiranagar, Ward No. 10, NP Rasana E Age as alleged by person/miscellaneous data 15 years Brought by/Authority Dy SP Shwetamber Sharma Standing Medical Board, No.

GMC/2018/SMBd KPS - 125747 Court Case 12176 Dated 26/02/2016 Crime Branch Jammu. F Purpose of examination Assessment of age of Subham Sangra Sd/- (Signature/Thumb Impression of Individual) Marks of Identification: 1. Black mole above left angle of G mouth 2. Scar mark on right eyebrow 1. PHYSICAL EXAMINATION H 360 SUPREME COURT REPORTS [2022] 8 S. C. R. A (i) Height 5’3" (ii) Weight 48 Kg (ii) Built Average (ii) Voice Masculine (v) Secondary Sex Characters Well developed II. DENTAL EXAMINATION B C Referred to Deptt of Oral Diagnosis IGGDC Jammu for dental age estimation by Dr Satvinder Singh. 03/03/2018 -On Clinical examination, all permanent teeth erupted except 18, 28, 38 & 48 on OPG (radiographic) examination; 18 & 28 show V2 root formation approximately D 38 & 48 show near complete root formation with open (illegible). On the cavity this findings, the dental of patient is of 19+ years. III.

RADIOLOGICAL EXAMINATION: Referred to Department of Radio diagnose for X-rays for age estimation. Advised (1) E X-ray (Rt. ) Humerus (Shoulder Jt) AP (2) X-ray Hip (Pelvis) - AP (3) X-ray (RF) Knee Jt-AP (4) X-ray (Rt) Elbow Joint AP Lat (5) X-ray (Rt) Hand & wrist- AP. OPINION - reserved till the receipt of reports from IGGDC Jammu and the Deptt of Radio diagnosis. F Sd/- Sd/- Dr. Mrityunjay Shivani Mehta (Deptt of Physiology) (Deptt of Forensic Medicine) G Sd/- Sd/- Sd/- Dr. Jeevitesh Khuda Dr. Ashwani Dr. Satvinder (Deptt of Radio (Deptt of Anatomy) (IGDDC Jammu) Diagnosis) H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 361 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] 3/03/2018 FINAL OPINION – Received R/8" x 10" x four (4) A films reported by Dr. Jeevitesh Khoda with the opinion-keeping in view the above findings the age of the patient in my opinion is between Nineteen to Twenty Three (19-23) years of age.

FINAL OPINION - On the basis of Physical Dental & B Radiological Examination the approximate age of above individual is above nineteen years (19 +) Sd/- Sd/- Sd/- Dr. Mrityunjay Dr. Ashwani Dr. Satvinder C (Deptt of Physiology) (Deptt of Anatomy) (Deptt of Oral Diagnosis) Sd/- Sd/- Dr. Shivani Mehta Dr. Jeevitesh Khuda D (Deptt of Forensic Medicine) (Deptt of Radio Diagnosis)” 14. The High Court thereafter passed an order dated 14. 03. 2018 in the OWP No. 259 of 2018 with M. P. No. 1 of 2018 which reads thus: “When the matter was taken up today, learned Senior E Additional Advocate General submitted that despite request being made to the Medical Superintendent, District Hospital Kathua, till today, the post-mortem report has not been handed over to the Investigating Officer.

In view of the aforesaid submission, the Medical Superintendent, District Hospital, Kathua is directed to hand over the copy of the post-mortem F report as well as reply to the questionnaire to the officer heading the Special Investigating Team within a period of three days from the date of receipt of certified copy of the order passed today. With regard to the averments in para 7 of the status report G which has been filed on behalf of respondents 1 to 3, it is submitted that the Special Investigating Team shall obtain the warrant of arrest in respect of absconding accused, namely, Sanjhi Ram and shall take all effective steps to arrest him and shall interrogate him as well as other persons who are H 362 SUPREME COURT REPORTS [2022] 8 S. C. R. A related to the offences in question whose names have been mentioned in para 7 of the status report. Let the aforesaid exercise be carried out with three weeks from today. Mr. Nargal, learned Sr.

AAG further submitted that since the matter is pending before this Court, the Chief Judicial B Magistrate, Kathua is not ascertaining the age of the accused, namely, Shubam Sangra. In view of the aforesaid submissions and taking into account the provisions contained under Section 8 of the J and K Juvenile Justice (Care and Protection of Children) Act, 2013 as well as Rule 74 of the Rules framed under the Act, the Chief Judicial Magistrate, Kathua is directed C to ascertain the age of the accused, namely, Shubam Sangra within a period of ten days from the date of receipt of certified copy of the order passed today, without being influenced by the report submitted to the District Medical Board. List on 09. 04. 2018. D Let a copy of this Order be supplied to learned counsel for the parties under the seal and signatures of the bench secretary of this Court. ” 15. The Tehsildar of Hira Nagar vide his communication dated 14. 03.

2018 informed the Superintendent of Police, In-charge SIT Crime E Branch that the original record in respect of date of birth of the respondent herein was not traceable. The letter of the Tehsildar dated 14. 03. 2018 reads thus: “Government of Jammu & Kashmir Revenue Department “OFFICE OF THE TEHSILDAR, EXECLJTIVE MAGISTRATE F 1st CLASS, HIRANAGAR (Kathua) The Dy. Superintendent of Police SIT Member Crime Branch, J&K, Jammu. G No. JC/232 Dated: 14. 03. 2018 Sub:- Investigation of Case Fir No. 10/2018 u/s 363/302/ 343/376/201/120- B RPC of P/S Hiranagar. Ref:- CB/FIR/10-2018/127 dated 13. 03. 2018 H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 363 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] R/Sir, A In reference to your office letter No. CB/FIR/10-2018/127 dated 13. 03. 2018 regarding the subject cited above. In this context if is hereby submitted that original, record pertaining to the order No. 22/JC dated 15. 04.

2004 issued B from this office in respect of date of birth of Shubam Sangra S/o Om Parkash R/o Hiranagar is not traceable in this office. Moreover, the old miscellaneous record has been dilapidated for which undersigned is not in position to submit the original record of the same. C Yours faithfully, Sd/- Gourav Sharma, Tehsildar, Hiranagar” D 16. The Block Medical Officer, Health & Family Welfare, Hira Nagar by his communication dated 15. 03. 2018 informed the Superintendent of Police, In-Charge SIT Crime Branch, Jammu & Kashmir that the verification of the records available in the institution reveals that no delivery in the name of Smt. Tripta Devi W/o Om Prakash, mother of the respondent herein, had taken place on 23. 10. 2002. The E date of 23. 02. 2002 assumes significance as it is the case of the respondent that he was born on 23. 10. 2002. 17. On 20. 03.

2018, the respondent herein preferred an application in the Court of the CJM, Kathua under Section 8 of the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 F (for short, ‘the Act, 2013’) for determination of his claim as a juvenile. 18. The appellant State filed detailed objections to the aforesaid application filed by the respondent herein under Section 8. The objections read thus: “a. On 12. 01. 2018 one Mohd. Yousuf S/o Sahib Din caste G Bakarwal R/o Rasana Mohara Plakh Phawara Tehsil Hiranagar produced an application in Urdu before the P/S Hiranagar stating therein that his daughter Miss Asifa Age 8 years had gone for grazing horses in the nearby forest on 10. 01. 2018. She was seen with the horses at about 14:00 H 364 SUPREME COURT REPORTS [2022] 8 S. C. R. A hrs. At about 16:00 hrs, the horses returned back in the dera but Asifa did not return. On this Mohd. Yousuf along with others started search in the forest but Asifa could not be traced out.

He has the suspicion that some miscreants have kidnapped his daughter. Consequently, Case FIR No. 10/2018 u/s 363 RPC was registered in P/S Hiranagar and section B 302 and 343 RPC were added after recovery of the dead body of the prosecutrix. The investigating officer of P/s Hiranagar, on the basis of a secret information had apprehended a Juvenile delinquent namely Shubam Sangra @ Chuboo on 19. 01. 2018 and was produced before the Ld. Chief Judicial C Magistrate Kathua on 20. 01. 2018 for seeking remand. The investigation of the case was subsequently transferred to Crime Branch Jammu vide PHQ order No. 374/2018 dated 22. 01. 2018 for further investigation. The case was formally handed over to Crime Branch on 27. 01. 2018. During the course of the investigation the offences u/s, 376, 201· and D 120-B RPC came to be included. b. The Ld. Chief Judicial Magistrate, Kathua has granted remand for lodgment of Shubam Sangra @ Chuboo in observation home R.

S Pura, the details of which is as under:-i. 20. 01. 2018 to 29. 01. 2018 = 10 days E 11. 29. 01. 2018 to 03. 02. 2018 = 6 days ill. 03. 02. 2018 tol2. 03. 2018= 10 days iv. 12. 02. 2018 to 26. 02. 2018 = 15 days F v. 26. 02. 2018 to 12. 03. 2018 = 15 days vi. 12. 03. 2018 to 22. 03. 2018 = 11 days Total - 67 days, (62 days as per the calendar entries) Apart from this, the Ld. Court of Chief Judicial Magistrate G Kathua vide order dated 30. 01. 2018, 05. 02. 2018, 19. 02. 2018 and 26. 02. 2018 has granted the custody of juvenile delinquent Shubam Sangra for 3 days + 3 days + 3 days + 1day respectively. This way, the juvenile was granted a total of 10 days police custody for the purpose of investigation. The juvenile delinquent during the course of sustained questioning H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 365 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] also admitted to have committed the offences of kidnapping, A rape and murder of deceased Asifa.

Even as in the chain of events, on the basis of statement of witnesses u/s 161 and 164-A Cr. PC and circumstantial evidence the offences u/s 363, 343, 302, 376, 120-B/RPC have been prima facie made out against Shubam Sangra@ chuboo. B c. Moreover, during investigation it also transpired that the Date of Birth Certificate of the Juvenile obtained from Municipal Committee Hiranagar and the one obtained from Modem Public Higher Secondary School Hiranagar were at variance. In the mean time. the Hon’ble High Court on C 21. 02. 2018 in OHP No. 259 of 2018 titled Mohd. Akhter Vs. State had interallia passed the following direction:- “SIT shall take steps for ascertaining the age of Shubam Sangra within a period of 10 days from today by a Medical Board to be which shall be constituted by Principal GMC D Jammu”. In compliance to the above direction of Hon’ble High Court J&K Jammu, the Principal GMC Jammu was requested vide this office letter No. CBJ/FIR/l0 2018/56 dated 26. 02.

2018 to constitute a Medical Board for determination of age in E respect of juvenile delinquent Shubam Sangra @ Chuboo. In response to which, the Principal GMC Jammu constituted board of doctors comprising of (i). Dr. Mrityinjay, department of physiology (ii). Dr. Shivani Mehta, department of Forensic Medicine (iii). Dr. Jeevitesh Khtida, department of Radio Diagnosis (iv). Dr. Ashawani, department of Anatamy and (v). F Dr. Satvinder Singh, department of Indira Gandhi Govt. Dental College Jammu (IGGDC). The board of doctors so constituted examined the juvenile delinquent Shubam Sangra on 28. 02. 2018 and accordingly Principal GMC Jammu submitted the opinion of the board vide letter No. GMC/2017 /SMVC/ G court case/2209 dated 05. 03. 2018. Final Opinion :- On the basis of Physical, Dental and Radiological examination the approximate age of above mentioned H 366 SUPREME COURT REPORTS [2022] 8 S. C. R. A individual is above Nineteen years (19+).

(The copy of the Medical report is appended as Annexure A for reference). d. On the basis of questioning from Juvenile delinquent Shubam Sangra, statement of witnesses u/s 161 and 164-A CrPC and circumstantial evidence accused persons namely B (i). Deepak Khajuria @ Deepu S/o Updesh Khajuria (ii). Surinder Kumar S/o Sain Dass R/o Dhamiyal Hiranagar and (iii). Parvesh Kumar @ Mannu S/o Ashok Kumar R/o Rasana Hiranagar, (iv). VishalJangotra@ Shamma and (v). Sanji Ram were arrested and put to sustained interrogation. The investigation conducted so far reveals that the accused C De’epak Kumar Khajuria and the juvenile delinquent hatched a criminal conspiracy with Sanji Ram S/o Des Raj R/o Rasana for kidnapping, rape and murder of deceased Asifa, d/o Mohd.

Yousuf of village Rasana and in furtherance of this criminal conspiracy the accused persons namely Surinder Kumar S/o D Sain Dass R/o Dhamiyal Hiranagar, Parvesh Kumar @ Mannu S/o Ashok Kumar R/o Rasana Hiranagar and Vishal jangotra @ Shamma became a part of the conspiracy as well as the execution plan. e. Further, during investigation it has also transpired that the officers and officials of P/s Hiranagar were a part of the E criminal conspiracy as the clothes of deceased Asifa were washed up in the premises of Police Station Hiranagar on 17. 01. 2018 before being sent to FSL for forensic examination. On the basis confessional statements of accused persons, and statement of witnesses uls 161 Cr. PC as well as other F circumstances HC Tilak Raj of P/S Hiranagar and S. I Anand Dutta, the erstwhile I/O of instant case of P/s Hiranagar have been arrested for disappearance of evidence, done with the intention of screening out the offender from legal punishment.

Both the police officials are on police remand and lodged in P/s Crime Branch Jammu. G f. That as per the opinion of Board of Doctors Shubam Sangra @ Chuboo is above nineteen years of age and thus he is an adult. Further it is submitted that in the writ petition titled Mohd. Akhter Vs. State OWP No. 259 of 2018, pending adjudication before the Hon’ble High Court of J&K, Jammu H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 367 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] a detail status report reflecting the opinion of board of doctors A of GMC Jammu was filed before the Hon’ble court on 09. 03. 2018 in sealed cover for the perusal of the Hon’ble High Court. 2. It is also relevant to submit before this Hon’ble Court that, Tehsildar Hiranagar was requested vide office letter no. CB/ B FIR/10-20181127 dated 13. 03.

2018 to provide the file regarding issuance of order to executive officer Municipal Committee Hiranagar for making the entry of date of birth in respect of said Shubam Sangra in the record of Municipal Committee. In response to the above communication, Tehsildar C Hiranagar vide letter no. JC/232 dated 14. 03. 2018 has intimated that the file in question is not traceable in his office. (The reply of Tehsildar is annexed for reference and marked as Annexure -B). 3. Further it is also submitted that Executive officer of D Municipal Committee Hiranagar has made an entry in the date of birth register of Municipal Committee in respect of juvenile Shubam Sangra mentioning there in that the said individual was born in Hiranagar Hospital. However, contrary to this, in response to this office letter no. CB/FIR/ 10-2018/135 dated 14. 03. 2018 the Block Medical Officer E Health and Family Welfare Hiranagar vide office letter No. BMO/CHC/HGR/ Acctts/2214 dated 15. 03.

2018 has intimated that on verification of records available in the institution it is found that no delivery in the name of Smt. Tripata Devi w/o Sh. Om Parkash R/o Hiranagar has taken place on F 23. 10. 2002, which clearly indicates that the entry made by Executing officer Municipal Committee Hiranagar is not based on facts and even the order of the Tehsildar Hiranagar for making the said entry has become doubtful. (Photocopy of letter of BMO Hiranagar is annexed for reference and marked as Annexure-C}. G 4. That it is also relevant to place on record that the aforesaid mentioned writ petition was listed before the Hon’ble court of 14. 03. 2018 wherein the Hon’ble court after going through the status report filed in the sealed cover was please to issue the 3 directives, out of which the one pertaining to the issue H 368 SUPREME COURT REPORTS [2022] 8 S. C. R.

A in hand was for the sake of reference is reproduced here in under:- “Taking into account the provisions contained under Section 8 of the J&K ]uvenile]ustice (Care and Protection of Children) Act; 2013 as well as Rule 74 of the Rules B framed under the Act; the Chief Judicial Magistrate Kathua is directed to ascertain the age of the accused, namely, Shubam Sangra with in a period of ten days from the date of receipt of certified copy of the order passed today, without being influenced by the report submitted by the District Medical Board”. C The certified copy of court order has already been sent to the Ld. Court through CPO, vide letter no. CB/FIR/10-2018/154 dated 16. 03. 2018. However, another photocopy of the of the court order is again annexed for reference, marked as Annexure-D. D 5.

That in view of the aforementioned reply of the Tehsildar Hiranagar as well as the Block Medical officer Health and Family Welfare Hiranagar and coupled with the report of the Medical Board, it is submitted that the applicant Shubam Sangra @ Chuboo may not be declared as juvenile and rather E in view of the role played by him in the gruesome and dastardly act as well as his conduct and behavior, forthcoming from the investigation conducted so far, he is rather mature and not a juvenile. Further it is also placed on record that the date of arrest of the Shubam Sangra as per the CD file is 19. 01. 2018 and not 12. 01. 2018 as reflected in the F application. In the light of the aforesaid submission it is humbly prayed that the aforesaid application may kindly be rejected and the applicant Shubam Sangra @ Chuboo S/o Om Parkash R/o Ward No.

10 Hiranagar Np Village Rasana, Tehsil- Hiranagar G may kindly be declared as an adult or alternatively not a juvenile, so that the investigation of instant case is finalized on merits. Superintendent of Police, I/GSIT Crime Branch, J&K, H Jammu” THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 369 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] 19. For the purpose of adjudicating the application filed by the A respondent herein under Section 8 of the Act, 2013 referred to above, the CJM, Kathua recorded the deposition of the Executive Officer, Municipal Committee, Hira Nagar and of the father of the respondent herein namely Om Prakash. 20. Ultimately the CJM, Kathua passed the final order dated B 27. 03. 2018 holding the respondent herein to be a juvenile.

The relevant part of the order passed by the CJM, Kathua reads thus: “Having discussed legal position qua determination of juvenility in terms of rule 74 supra and section 8 of Juvenile Justice Act, let focus now be shifted to the facts of the case at C hand. Executive Officer, Municipal Committee Hiranagar appeared on 23-03-2018 along with record pertaining to date of birth of petitioner. He was examined on the same day. According to him date of birth of petitioner is recorded as 23-10-2002 in D the Birth and Death Register maintained by his office; that parentage of petitioner is : son of Om Parkash and Smt. Tripta. Further, according to this witness, date of birth entry of petitioner has been recorded on 15-04-2004 in the records of Municipal Committee; that said entry has been made by then E Executive Officer whose signatures and seal is at serial no. 80 of register concerned; that this entry was recorded pursuant to order of Executive Magistrate 1st Class Hiranagar bearing no.

22/JC dated 15-04-2004; that father of petitioner had moved an application before then Executive Magistrate (Tehsildar) Hiranagar seeking direction for making entry of F date of birth of petitioner; that in-terms of order no. 22/JC dated 15-04-2004 entry of three children of Om Parkash (father of petitioner) was directed to be made by Executive Magistrate 1st Class Hiranagar; that date of birth of petitioner was entered in compliance with this order of Executive G Magistrate 1st Class only; that signature father of petitioner exists at serial no. 80 of register concerned; that date of birth certificate the photocopy of which is on the file of this court has been issued from his office in which date of birth of petitioner is recorded as 23-10-2002 and this entry is correct and true according to original record etc. etc. H 370 SUPREME COURT REPORTS [2022] 8 S. C. R.

A In cross examination, witness deposed that incumbent Executive Officer ensures signatures of any application on the birth register in his presence; that with regard to place of birth of new born, entry is made on the basis of information given by an applicant and no verification is made in this regard because entry is made on the basis of order of Magistrate; B that order no. 22/JC does not mention place of birth of petitioner and that after year 2012 orders pertaining to entry in date of birth are issued by courts and not by Executive Magistrate etc. etc. Another witness namely Om Parkash who is father of C petitioner was examined on 24-03-2018.

According to this witness, petitioner is his real son; that date of birth of petitioner is 23-10-2002; that this date of birth of petitioner is also entered in the record of Municipal Committee Hiranagar and same was made on 15-04-2004; that prior to D this he moved an application for making entry of date of birth of petitioner before Executive Magistrate 1st Class Hiranagar and also led evidence and finally Tehsildar Hiranagar issued order in the name of Municipal Committee Hiranagar pursuant to which date of birth of petitioner was recorded as 23-10- 2002; that name of his wife is Tripta Devi.

Petitioner E was admitted in Modern Public Higher Secondary School Hiranagar in the first class; that there also he disclosed date of birth of petitioner as 23-102-2002; that petitioner was admitted in said school 10 years back; that however a wrong entry of date of birth of petitioner has been made in school F records; that date of birth of petitioner shown in school is 23-10-2003; that he came to know about this wrong entry of date of birth of petitioner in school only when FIR was registered against him (petitioner) pursuant to which he went to school to get date of birth certificate of petitioner etc. etc. G On cross examination, witness deposed that he has three children; that the youngest one is petitioner.

Because of ignorance he moved application for making entry of date of birth of his children as late as in year 2004 even though his eldest issue was born in the year 1996; that he cannot say the age at which Shubam Sangra was admitted in the school H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 371 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] and that he is 4th class employee in the education department A etc etc. Be it noted that evidence of Executive Officer, Municipal Committee Hiranagar puts in perspective the process which ultimately culminated in recording date of birth of petitioner in the record of Municipal Committee Hiranagar way back in B the year 2004. As a matter of record, it stands established that date of birth of petitioner was recorded in the birth register of Municipal Committee Hiranagar vide registration no. 80 on 15-04-2004 right in line with the order no. 22/JC dated 15-04-2004 passed by then Executive Magistrate 1st Class C (Tehisildar) Hiranagar.

The fact that birth certificate issued by Municipal committee supra on 17-03-2018 is in accord with and conforms to original record, have been vividly demonstrated, both, by records of Municipal Committee supra as also by the testimony of its Executive Officer. Date of birth certificate issued by Municipal Committee Hiranagar in favour D of petitioner on 17-03-2018 depicting his date of birth as 23- 10-2002, in the obtaining circumstances as outlined here-in-above - therefore cannot be said to have been manufactured, engineered or fabricated. Also, once it (Date of birth certificates of petitioner) does not give a prima facie sense of E concoction or trickery, then to mull over an idea of over scrutiny of same, if I say so, would indeed be a fallacy directed at the very ambit and scope of section 8 of Juvenile Justice (Care and protection of Children) Act and rule 74 framed thereunder.

Notably also, the narrative un-wound by father of petitioner is in sync with account given by Executive Officer, F Municipal Committee Hiranagar and relevant official record. There is another crucial aspect of the matter which cannot be afforded to be over looked or side tracked. That is this: Date of birth of petitioner was recorded in the birth register maintained in the course of official business by Municipal G Committee Hiranagar way back on 15-04-2004. Committee did not record this entry suomoto but in compliance with order issued in that end by Executive Magistrate 1st Class Hiranagar. Occurrence in which involvement of petitioner is alleged is of January 2018. To insinuate therefore that date H 372 SUPREME COURT REPORTS [2022] 8 S. C. R.

A of birth entry was so caused to be made in favour of petitioner as if he knew that after more than thirteen years later he would seek to derive benefit in a criminal indictment would not only be an over-statement but also an erroneous and in-substantial assumption to say the least. B No sooner as birth certificate issued by Municipal Committee concerned in favour of petitioner is found to be prima facie legitimate than recourse to other modes of age determination is not allowable. This essentially is the mandate of rule 74 framed under Juvenile Justice (Care and Protection of Children) Act.

C For all what is discussed hereinabove, and in deference to the standard of proof required for the purpose of section 8 of the Act supra and Rule 74 and in light of proof offered, it is held that birth certificate issued by Municipal Committee Hiranagar in favour of petitioner Shubam Sangra depicting D his date of birth as 23-10-2002 is legitimate, un-tainted and fair and therefore credence needs to be given to it for the purpose of Juvenile Justice Act supra. Reckoning date of birth of petitioner as 23- 10-2002, it is held that age of petitioner as on date of passing of this order is less than sixteen years. Age of petitioner is accordingly ascertained in compliance E with directive of Hon’ble High Court dated 14-03-2018 in OWP no. 259/2018. ” 21. The appellant State being dissatisfied and aggrieved with the aforesaid order passed by the CJM, Kathua dated 27. 03. 2018 challenged the same by filing the Criminal Revision Application before the High F Court.

The High Court rejected the Revision Application affirming the order passed by the CJM, Kathua holding the respondent herein to be a juvenile on date of the commission of the offence. The impugned order of the High Court reads thus: “26. Admittedly, the date of birth of the respondent in the G Municipal record as well as school record is shown as 23. 10. 2002, meaning thereby on the date of registration of the FIR, he was below the age of 18 years. Moreso, the petitioners have not denied the authenticity of the aforesaid record. Once there is clear proof of the respondent in the H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 373 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] shape of birth certificate of the Municipal Committee and A certificate issued by the school authority, the medical examination regarding the age of the respondent automatically loses its significance. 27. Next question raised by Mr. Pant is with regard to the maintainability of the Revision Petition.

As held by the Apex B Court in Jabar Singh Vs. Dinesh and another 2010(3) SCC 757, the scope of Revision is very limited. The relevant paragraph of the judgment is reproduced as under: “29. A plain reading of Section 52 of the Act shows that no statutory appeal is available against any finding of the C court that a person was not a juvenile at the time of commission of the offence. Section 53 of the Act which is titled “Revision”, however, provides that the High Court may at any time, either of its own motion or on an application received on that behalf, call for the record of D any proceeding in which any competent authority or court of session has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order, and may pass such order in relation thereto as it thinks fit.

While exercising such revisional powers, the High Court cannot convert itself to an appellate court and reverse the findings E of fact arrived at by the trial Court on the basis of evidence or material on record, except where the High Court is not satisfied as to the legality or propriety of the order passed by the trial Court. ” 28. It is admitted by the petitioners that the scope of Revision F is the same as the scope of Revision under Code of Criminal Procedure. Section 52 of Juvenile Justice Act, 2013 referred to by the petitioners also refers to the facts that Court has to satisfy itself as to the legality and propriety of any such order, as such, the factual findings of fact cannot be upset by the G Court unless and until it is found to be perverse. In the present case where, factual finding has been given by the Court below, therefore, there is no illegality or impropriety in the order, as such, there is no question of interference with the findings of the Court below.

H 374 SUPREME COURT REPORTS [2022] 8 S. C. R. A 29. In the instant case, the trial Court has given finding of fact relying upon the evidence and has acted in conformity with Rule 74 of the Rules of 2014 and that there is no perversion in the findings of fact, as such, the trial Court has not committed any illegality or impropriety which warrants interference in this Revision Petition. Accordingly, this B Revision Petition is dismissed along with connected CrlM(s). Record, if any, be sent down. Interim direction, if any, shall stand vacated. Jammu Tashi Rabstan) C 11. 10. 2019 Judge” 22. In view the aforesaid the appellant State is here before this Court with the present appeal. Submissions on behalf of the Appellant State: D 23. Mr. P. S.

Patwalia, the learned senior counsel appearing for the appellant State vehemently submitted that the orders passed by the CJM, Kathua and the High Court could be termed as palpably erroneous and thereby rendering the dispensation of justice to a mockery. The learned senior counsel came down very heavily while criticizing both the orders submitting that the two courts have conveniently ignored about E the statutory rules governing the determination of age of a juvenile. He submitted that there is no cogent, clear and convincing documentary evidence on record to suggest or indicate that the respondent was born on 23. 10. 2002. He invited the attention of this Court to an order passed by the Executive Officer Municipal Committee, Hira Nagar dated F 15. 04. 2004 specifying the date and place of birth of three children of Om Prakash Sangra. This order dated 15. 04.

2004 came to be passed pursuant to an application said to have been filed by the father of the respondent herein namely Om Prakash under Section 19 (3) of the Registration of Births and Deaths Act, 1956 r/w Rule 19(3) of the Rules. The order reads thus: G “Application U/S 19(3) of Registration of Birth and Deaths Act, 1956 (illegible) with Rule 19(3) of the J&K Registration of Births and Deaths (illegible) of birth certificate of the (illegible) Son Rahul Sangra Riya Sangra Shubam Sangra District Hiranagar, Tehsil Hiranagar. H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 375 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] ORDER A The applicant has moved an application for the issuance of date of birth certificate. The applicant Om Parkash Sangra has stated that he/she was born on 23-11-97, 21-2-98, 23- 10-02 Village Hiranagar Tehsil Hiranagar and submitted that the of birth has not been recorded by the M. C. Hiranagar.

B The applicant has filed an application in this Court supported by duly sworn affidavit avering therein that due to ignorance of the concerned his/her date of birth could not be recorded. The applicant has examined (illegible) S/o Ram Krishan of C Tehsil Hiranagar besides himself as his own witnesses in support of the averments made in the application. The applicant has supported the contents of the application and Hiranagar, Ward No. 7 Distt Kathua witnesses appearing for the applicant have corborated the material averments of the applicant. D I have gone through the application, affidavit and the statements of witnesses from the above it has been established that the (illegible) of the applicant’s son Rahul Sangra has taken place at village Tehsil Hiranagar on 23-11-97, 21-2- 98, 23-10-02 keeping in view the material placed before this E Court, it is ordered that entry of the above named applicant’s.

____ be made in the Register of __ as mentioned above in terms of Rule 19(3) of the Registration of birth and __ Rules. The child particulars are stated as under :- F S. No. Name Father Date & Place of birth 1. Rahul Sangra Om Parkash 23-11-97 2. Riya Sangra R/o Hiranagar 21-02-98 G 3. Shubam Sangra 23-10-02 No: 22/JC Sd/- H 376 SUPREME COURT REPORTS [2022] 8 S. C. R. A Date 15-4-04 ............ Hiranagar Copy of this order shall be forwarded to the M. C. Hiranagar for information and necessary action. Sd/- Executive Officer B Municipal Committee Hiranagar” 24. The learned senior counsel submits that no reliance could have been placed on the aforesaid order for the purpose of coming to the conclusion that the date of birth of the respondent herein is 23. 10. 2002. C 25. Our attention was drawn to the fact that the first child of Om Prakash namely Rahul Sangra is shown to have been born on 23. 11. 1997 whereas the second child i. e.

the daughter namely Riya Sangra is shown to have been born on 23. 01. 1998 i. e. just within three months from the date of birth of the eldest child. The date of birth of the respondent D herein is shown to have been 23. 10. 2002. 26. As against the aforesaid, the learned senior counsel invited the attention of this Court to a birth certificate said to have been issued by Modern Public Higher Secondary School dated 06. 09. 2017. The same reads thus: E “Modern Public Higher Secondary School (10+2) Ward. N .. 10-11 Hiranagar (Kathua) J&K Recognised by J&K Govt. and Affiliated to J&K State Board of School F Education No. Dated 06/09/2017 DATE OF BIRTH CERTIFICATE G Certified that the Date of Birth of Shubam Sangra Son of Sh Om Parkash / Tripta Devi is (In Figures) 23/10/2003 (In Words) Twenty Third Oct. Two Thousand Three as per School Records. H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 377 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] His Admission No. is 1435.

He was reading in Class 10th. A Address W/ No. 10, P. O Hiranagar, Teh Hiranagar, Distt Kathua, Pin 184142 Sd/- B Principal Modern Public Higher Sec. School Hiranagar” 27. Thus, in the aforesaid certificate the date of birth is shown to be 23. 10. 2003. Our attention was thereafter drawn to an extract of the C admission withdrawal register of the primary department school, Modern Public Higher Secondary School, which is at page 58 of the paper book Annexure-P-3, wherein the name of the respondent is at S. No. 1757 and the date of birth is shown to be 23. 10. 2003. 28. After highlighting the contradictions in the date of birth as D above, the learned senior counsel invited our attention to the Jammu & Kashmir Juvenile Justice (Care and Protection of Children) Rules, 2014, (for short, ‘the Rules, 2014’) more particularly Rule 74. Rule 74 is with respect to the determination of age.

Although what is relevant for our purpose is sub-rule (3) of Rule 74 of the Rules, 2014, yet we deem it E appropriate to reproduce the entire Rule 74, which reads thus: “74. Determination of age. —(1) Whenever an alleged offender who appears to be below the age of 21 years is produced before a Court not being the Board, it shall on the very first date of production question the alleged offender F about his age, satisfy itself that he is not a juvenile, make a note of its findings and order immediate transfer of the matter to the Board where necessary. (2) When a juvenile or child or a juvenile in conflict with the law is produced before the Board or the Committee as the G case may be, it shall determine and declare his age within a period of thirty days from the date of such production. (3) The Board or the Committee, as the case may be shall, as far as possible, decide the juvenility or otherwise, on the basis of physical appearance or documents available, if any.

Where H 378 SUPREME COURT REPORTS [2022] 8 S. C. R. A an inquiry is instituted by the Board or the Committee for determination of age, such inquiry shall be conducted on the basis of following evidence: — (i) the birth certificate issued by a Corporation or a Municipal Committee or any other notified authority; or B (ii) the matriculation or equivalent certificate; or (iii) in absence of the certificates mentioned in sub-clauses (i) and (ii) or in case of any contradiction arising therefrom, the authority deciding the age issue may refer the matter to a duly constituted Medical Board, which shall record its C findings and submit to the Juvenile Justice Board. (4) All Government Hospitals shall constitute Medical Boards for medical age examination, consisting of a Physiologist, a Dental Examiner and a Radiologist or Forensic Expert, of whom one shall be notified as the Chairperson.

D (5) All the Members of the Medical Board shall give their individual findings on age, which shall then be forwarded to the Chairperson of the Board to give the final opinion on the age within a margin of one year. (6) The duly constituted Medical Boards shall give their report E with the findings on age within 15 days of request being made in this regard. ” 29. The learned senior counsel submitted that sub-rule (3) of the Rule 74 makes it abundantly clear that in case of any contradiction between the certificates mentioned in sub clause (i) and (ii) of the sub- F rule (3), the authority deciding age may refer the matter to a duly constituted medical board which, in turn, shall record its findings and submit it to the Juvenile Justice Board. 30.

The learned senior counsel submits that there is an apparent contradiction in the documentary evidence on record in the form of various G certificates and in such circumstances the matter had to be referred to a duly constituted medical board and the age has now to be determined on the basis of the report of the medical board which is on record. 31. The learned senior counsel submitted that the certificate issued by the medical board makes it abundantly clear that the age of the H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 379 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] respondent herein at the time of commission of the offence could be A between 19 and 23 years. 32. In the last, the learned senior counsel submitted that the case on hand is one of a very heinous crime committed on a minor girl aged 08 years.

He would submit that if the plea of juvenility or the fact that the accused had not attained the age of discretion so as to understand B the consequences of his heinous act is not free from ambiguity or doubt, such plea cannot be allowed to be raised merely on doubtful certificates evidencing age and in such circumstances the medical evidence will have to be given due weightage while determining the age of the accused. In the aforesaid context, the learned senior counsel placed strong reliance C on the decision of this Court in Ramdeo Chauhan alias Raj Nath v. State of Assam, (2001) 5 SCC 714. 33. In such circumstances referred to above, Mr. Patwalia, the learned senior counsel prayed that there being merit in his appeal, the same be allowed and the impugned order passed by the High Court be D set aside and it be held that the respondent was not a juvenile on the date of the commission of the offence. Submissions on behalf of the Respondent accused: 34.

On the other hand, the learned counsel appearing for the respondent vehemently opposed the present appeal submitting that no E error, not to speak of any error of law could be said to have been committed by the courts below in determining the age of the respondent. According to him, sub-rule (3) of Rule 74 has no application in the present case as there is no contradiction in the certificates evidencing the age of the respondent accused. He would submit that the respondent accused was born on 23. 10. 2002 is crystal clear and the same is evident from the F admission form of the respondent duly filled while seeking admission in the Modern Public Higher Secondary School, Hira Nagar in the year 2008. He submitted that howsoever the heinous crime may be but on the date of commission of the alleged offence if the accused is a juvenile then he has to be tried as a juvenile in accordance with law and not like G any other accused.

He would submit that heinousness or brutality of the crime has nothing to do with the object of the Juvenile Justice Act. He further argued that no reliance could be placed on the opinion of the medical board because ultimately it is an expert opinion and cannot be said to be conclusive as regards the age. The learned counsel vehemently H 380 SUPREME COURT REPORTS [2022] 8 S. C. R. A submitted that the court may take notice of the relevant fact that there is no certificate/document in the case on hand which indicates that the respondent was not a minor or a major as on the date of the alleged offence. He argued that in the event the school record (Admission Form) indicating the date of birth is not be treated as falling in the category mentioned in sub-rule (3) (ii) of Rule 74, then in view of the Order No. B 22/JC/certificate issued by the Municipal Committee being available, recourse to Rule 74(3)(ii) is not at all warranted. 35.

The learned counsel in support of his aforesaid submissions placed reliance on the following decisions of this Court: C (i) Ashwani Kumar Saxena v. State of Madhya Pradesh, (2012) 9 SCC 750 (ii) Darga Ram alias Gunga v. State of Rajasthan, (2015) 2 SCC 775 D 36. In such circumstances referred to above, the learned counsel appearing for the respondent accused prayed that there being no merit in the present appeal, the same may be dismissed. Analysis 37. Having heard the learned counsel appearing for the parties E and having gone through the materials on record, the only question that falls for our consideration is whether the High Court committed any error in passing the impugned order? 38.

Sub-rule (3) of Rule 74 referred to by us in Para 28 above, makes it abundantly clear that in the absence of the certificates mentioned F in sub-clause (i) to (iii) or in the event of any contradiction arising therefrom, the authority deciding the issue of age may refer the matter to a duly constituted medical board which, in turn, would record its findings and submit to the Juvenile Justice Board. The materials on record as looked into by us above reveal no manner of doubt that there are G discrepancies in the certificates on record disclosing the date of birth of the respondent. We fail to understand as to why the Courts below were not able to take cognizance of such discrepancies or contradictions. We are not at all impressed with the submission canvassed on behalf of the respondent that even if there are contradictions or discrepancies in the documentary evidence of record there is not a single date emerging on H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 381 & KASHMIR) v.

SHUBAM SANGRA [J. B. PARDIWALA, J. ] record on the basis of which it could be said that the respondent was A major on the date of the alleged offence. It is a very unreasonable argument. That is not the correct way of looking at the core issue. The correct way of looking at the core issue is to closely examine whether there is any cogent or convincing evidence as regards the correct date of birth of the respondent accused and after ascertaining the same, reach B to an appropriate conclusion. If, there is any doubt in this regard, there is no good reason why the matter should not be referred to a duly constituted medical board which shall, in turn, record its findings and submit to the Juvenile Justice Board. The word “may” should be read as “shall” having regard to the very object of sub-rule (3) of Rule 74. C 39. It is a well settled principle of interpretation that the word ‘may’ when used in a legislation by itself does not connote a directory meaning.

If in a particular case, in the interests of equity and justice it appears to the court that the intent of the legislature is to convey a statutory duty, then the use of the word ‘may’ will not prevent the court from giving it a mandatory colour. This Court in Bachahan D Devi v. Nagar Nigam, Gorakhpur reported in (2008) 12 SCC 372, held as under: “18. It is well settled that the use of the word “may” in a statutory provision would not by itself show that the provision is directory in nature. In some cases, the legislature may use E the word “may” as a matter of pure conventional courtesy and yet intend a mandatory force. In order, therefore, to interpret the legal import of the word “may”, the court has to consider various factors, namely, the object and the scheme of the Act, the context and the background against which the F words have been used, the purpose and the advantages sought to be achieved by the use of this word, and the like.

It is equally well settled that where the word “may” involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the G mischief, or where giving the words directory significance would defeat the very object of the Act, the word “may” should be interpreted to convey a mandatory force. As a general rule, the word “may” is permissive and operative to confer discretion and especially so, where it is used in juxtaposition H 382 SUPREME COURT REPORTS [2022] 8 S. C. R. A to the word “shall”, which ordinarily is imperative as it imposes a duty. Cases, however, are not wanting where the words “may”, “shall” and “must” are used interchangeably. In order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the legislature should be looked into along with the pertinent circumstances. ” B 40.

Similarly, this Court in Dhampur Sugar Mills Ltd. v. State of U. P. reported in (2007) 8 SCC 338, held: “36. …. In our judgment, mere use of word “may” or “shall” is not conclusive. The question whether a particular provision C of a statute is directory or mandatory cannot be resolved by laying down any general rule of universal application. Such controversy has to be decided by ascertaining the intention of the legislature and not by looking at the language in which the provision is clothed. And for finding out the legislative intent, the court must examine the scheme of the Act, purpose D and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue. ” 41. We may also refer to Section 8 of the Act, 2013. Section 8 E provides for the procedure to be followed, when the claim of juvenility is raised before any court. Section 8 reads thus: “8.

Procedure to be followed when claim of juvenility is raised before any court. —(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused F 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 not, stating his age as nearly as may be : G 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 the Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of the Act. H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 383 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.

] (2) If the court finds a person to be a juvenile on the A 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. ” 42. The plain reading of Section 8 referred to above indicates that B whenever a claim of juvenility is raised before any court or the court is of the opinion that the accused person was a juvenile on the date of the commission of the offence, then it is mandatory for the court to make an inquiry and in the course of such inquiry, the court may take such evidence as may be necessary, however, not an affidavit, so as to determine the C age of such person.

At the end of the inquiry, if the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1) of Section 8, then in such circumstance, the court is obliged in law to forward the juvenile to the Juvenile Justice Board for passing appropriate order and the sentence. D 43. We may also look into Section 48 of the Act, 2013. Section 48 is in regard to the presumption and determination of age. Section 48 reads thus: “48. Presumption and determination of age. —(1) Where it appears to a competent authority that person brought before E it under any of the provisions of the 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, F 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 G to be the age of person so brought before it, shall for the purpose of the Act, be deemed to be the true age of that person. ” 44. Section 48 referred to above talks about a competent authority, whereas, Section 8 of the Act 2013 referred to above, is in respect to the H 384 SUPREME COURT REPORTS [2022] 8 S. C. R. A court. However, what is relevant to note is that in both the Sections i. e. , Section 8 as well as Section 48 the word ‘shall’ has been used. 45. There is one another aspect of this matter. It is the High Court who thought fit to pass the order dated 21. 02. 2018 referred to by us in para 9 as above, directing the Special Investigation Team (SIT) to take B steps for ascertaining the age of the respondent herein.

It is pursuant to such directions issued by the High Court that a Special Medical Board comprising of five medical experts on different subjects was constituted and it is this medical board comprising of five medical experts whose report we are looking into so far as the approximate age of the respondent is concerned. When we have reached to the conclusion that there is no C cogent and convincing documentary evidence on record as regards the date of birth or age of the respondent accused on the date of the alleged crime then there is no good reason for us not to look into or ignore the medical report prepared by the Special Medical Board which is on record. In such circumstances, the argument canvassed on behalf of the D respondent in regard to the applicability of sub-rule (3)(iii) of Rule 74 pales into insignificance.

In other words, the argument that the Special Medical Board should not have been constituted pales into insignificance because the Special Board was constituted under the directions issued by the High Court. 46. Let us see what this Court has to say in the case of Darga E Ram @ Gunga (supra) upon which strong reliance has been placed on behalf of the learned counsel appearing for the respondent accused. In Darga Ram @ Gunga (supra), this Court held as under: “16. The medical opinion given by the duly constituted Board comprising Professors of Anatomy, Radiodiagnosis and F Forensic Medicine has determined his age to be “about” 33 years on the date of the examination. The Board has not been able to give the exact age of the appellant on medical examination, no matter the advances made in that field.

That being so, in terms of Rule 12(3)(b) the appellant may even be G entitled to the benefit of fixing his age on the lower side within a margin of one year in case the Court considers it necessary to do so in the facts and circumstances of the case. The need for any such statutory concession may not however arise because even if the estimated age as determined by the Medical Board is taken as the correct/true age of the appellant H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 385 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] he was just about 17 years and 2 months old on the date of A the occurrence and thus a juvenile within the meaning of that expression as used in the Act aforementioned. Having said that we cannot help observing that we have not felt very comfortable with the Medical Board estimating the age of the appellant in a range of 30 to 36 years as on the date of the B medical examination. 17.

The general rule about age determination is that the age as determined can vary plus minus two years but the Board has in the case at hand spread over a period of six years and taken a mean to fix the age of the appellant at 33 years. We C are not sure whether that is the correct way of estimating the age of the appellant. What reassures us about the estimate of age is the fact that the same is determined by a Medical Board comprising Professors of Anatomy, Radiodiagnosis and Forensic Medicine whose opinion must get the respect it deserves. That apart, even if the age of the appellant was D determined by the upper extremity limit i. e. 36 years the same would have been subject to variation of plus minus 2 years meaning thereby that he could as well be 34 years on the date of the examination.

Taking his age as 34 years on the date of the examination he would have been 18 years, 2 E months and 7 days on the date of the occurrence but such an estimate would be only an estimate and the appellant may be entitled to additional benefit of one year in terms of lowering his age by one year in terms of Rule 12(3)(b) (supra) which would then bring him to be 17 years and 2 months old, therefore, a juvenile. ” F 47. On the other hand, the learned senior counsel appearing for the appellant State submitted that Darga Ram @ Gunga (supra) came to be considered by this Court in the case of Mukarrab v. State of Uttar Pradesh (2017) 2 SCC 210, and this Court in Mukarrab (supra) observed as under: G “22.

A reading of the above decision in Darga Ram case (supra) shows that courts need to be aware of the fact that age determination of the persons concerned cannot be certainly ascertained in the absence of original and valid documentary proof and there would always lie a possibility H 386 SUPREME COURT REPORTS [2022] 8 S. C. R. A that the age of the person concerned may vary plus or minus two years. Even in the presence of medical opinion, the Court showed a tilt towards the juvenility of the accused. However, it is pertinent to note that such an approach in Darga Ram case (supra) was taken in the specific facts and circumstances of that particular case and any attempt of generalising the B said approach could not be justifiably entertained. ” 48. Thus, in Mukarrab (supra), this Court made itself clear that Darga Ram @ Gunga (supra) was rendered in the peculiar facts & circumstances of that case & any attempt of generalizing the said approach could not be justifiably entertained. C 49.

Before we proceed further, we may clarify that Darga Ram @ Gunga (supra), was under the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, ‘the Act, 2000’). We may give a fair idea in regard to the scheme of procedure to be followed, when claim of juvenility is raised under the Act, 2000. D 50. Section 7A of the Act, 2000 reads as under: “7A.

Procedure to be followed when claim of juvenility is raised before any Court- (1) Whenever a claim of juvenility is raised before any court E 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 F 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 G made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) 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 H THE STATE OF JAMMU & KASHMIR (NOW U. T. OF JAMMU 387 & KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J. ] orders and the sentence, if any, passed by a court shall be A deemed to have no effect. ” 51. From a reading of Section 7A, what becomes very obvious is that whenever a claim of juvenility is raised, an inquiry has to be made and such inquiry would take place by receiving evidence which would be necessary but not an affidavit so as to determine the age of such B person. 52. The procedure to be followed for

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