Juvenile in absence of official record of age

What are the procedures for determining the age of a juvenile in the absence of an official record of age according to the Juvenile Justice (Care and Protection of Children) Rules, 2007? How can the court or board determine the age of a juvenile or child in conflict with the law if there is no matriculation or equivalent certificates, date of birth certificate from the school first attended, or birth certificate issued by a corporation or a municipal authority or a panchayat? When can a medical opinion from a Medical Board be sought, and how conclusive is it in determining the age of a person?

If there is no official record of the accused's date of birth who claims to be a juvenile at the time of the offence, the age determination can only be made through a medical opinion obtained from a Medical Board constituted under Rule 12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007.

Rule 12(3)(b) states that in the absence of other conclusive proof of age, a Medical Board will be consulted to determine the age of the juvenile or child in conflict with the law. If an exact assessment of age cannot be done, the court or Board may examine the age on the lower side within the margin of one year. The general rule for age determination allows for a variation of plus or minus two years.

When a claim of juvenility is made before a court or when a court is of the opinion that the accused was a juvenile at the time of the offence, an enquiry must be conducted to determine the age of the person. The court will take necessary evidence to determine if the person is a juvenile or child, stating their age as closely as possible.

The Juvenile Justice Act lays down the procedure for conducting an inquiry into juvenility, which cannot be imported from other enactments. Courts, Boards, and Committees must seek evidence by obtaining certificates mentioned in Rules 12(3)(a)(i) to (iii), and act as parens patriae to protect minors.

Medical board may conduct an ossification test for the determination of the age of juvenile. If conclusive proof of age is found, the court or Board will pass an order declaring the status of juvenility. Once the order is passed, it is conclusive proof of the age of the child or juvenile. If no conclusive proof of age is found, a medical opinion from a Medical Board will be sought.

The medical opinion is not conclusive and must be considered along with other evidence, as held in Babloo Pasi v. State of Jharkhand [(2008) 13 SCC 133]. In Shah Nawaz v. State of U.P [(2011) 13 SCC 751], the Supreme Court has reiterated that a medical opinion from a Medical Board should be sought only when other documents are not available.

Probate

Probate is a legal document. Receipt of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the dead person’s property under a will. According to The Indian Succession Act, 1925(hereinafter said Act); probate means the copy of a Will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator. Jurisdiction of the Court  Section 270 of the Act confers jurisdiction on the District Judge to grant probate upon a petition moved before him if, at the time of his ( maker of the will) death, the testator had a fixed place of abode or any property, movable or immovable, within the jurisdiction of the court. The proviso to Section 273 says that where the property of the deceased is situated in more than one state, the District Judge in whose jurisdiction the dead had a fixed place of abode would be entitled to grant probate provided he certifies that the value of the property and estate affected beyond the limits of the State does not exceed Rs. 10,000/-. The jurisdiction would depend upon the value of the property in a State other than the State in which the deceased died. Section 273 provides that the grant shall affect all the wealth and estate, moveable or immovable of the dead throughout the State and unless otherwise directed the award has like effect throughout the other States. The Probate Court has been conferred with exclusive jurisdiction to grant probate of the Will of the deceased. The probate court alone has sole authority and the Civil Court on the first side or the Arbitrator does not get jurisdiction, even if consented to by the parties. Procedure to obtain probate  Section 276 provides the process to obtain probate. Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating
  • the time of the testator’s death,
  • that the writing annexed is his last will,
  • that it was duly executed,
  • the number of assets which are likely to come to the petitioner’s hands, and
  • when the application is for probate, that the petitioner is the executor named in the Will.
In addition to these particulars, the petition shall further state:- (a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and (b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate. Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situated in another State, the petition shall further state the number of such assets in each State and the District Judges within whose jurisdiction such assets are situated.

Section 313 CrPC , the fundamental principle of fairness

Section 313 of the code of criminal procedure, a fundamental principle of fairness. In the criminal trial after registration of the FIR, police investigates the crime. After that, submits its report, i.e. charge-sheet. Charge sheet shows those evidence and circumstances which incriminate the accused. Court frames charges by that charge sheet and incriminating material collected by police during the investigation. After the recording of prosecution evidence, section 313 crpc provides an opportunity to the accused to apprised the incriminatory proof against him and get his explanation about such incriminatory evidence.  Section 313 Cr.P.C. prescribes a procedural safeguard for an accused by giving him an opportunity to explain the facts and circumstances appearing against him in the evidence. It imposes a duty on the Court to question the appropriately accused and reasonably to bring home to him the exact case. The court shall not administer an oath or warn the accused before examination under section 313. Such an opportunity being given to the accused is part of a fair trial. Importance of this section If trial court did not seek the explanation of accused in respect of any incriminating evidence, then that (evidence) cannot be considered against the accused [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116]. The court is bound to take explanation from accused regarding the incriminating circumstances proved against him. In Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502 the Supreme Court has opined that examination, under section 313, shall not be carried out as an empty formality. It is only after the entire prosecution evidence is unfurled the accused would be in a position to articulate his defence and to give an explanation to the circumstances appearing in the evidence against him. In Kuldip Singh & Ors. V State of Delhi (2003) 12 SCC 528, Supreme Court held that when exigent incriminating circumstance was not put to the accused during his examination under Section 313 Cr.P.C., the prosecution cannot use that piece of evidence against the accused. In Ashok Debbarma @ Achak Debbarma vs State of Tripura the Supreme Court has held that the statement of the accused under Section 313 CrPC for the admission of his guilt or confession as such cannot be made the sole basis for finding the accused guilty.

Presumption of Paternity in Law

My marriage was solemnized in the year 2009 and the child was born within 8 months from marriage. My wife is very shrewd and hush regarding her pre-marital life. I have some strong reason to doubt that child is not legitimate because she had some affair with a colleague and he had been very curious regarding the birth of a child. However, he never interrupted in my life but he has still trying to collect information about my child. Can I file a case for DNA testing for determination of paternity of a child? Section 112 of the Indian Evidence Act, embodies the basic principle of law regarding paternity. The law presumes a person is the legitimate child of his father if: 
  • He born during the continuance of a valid marriage between his mother and any man or
  • Taken birth within two hundred and eighty days after its dissolution and the mother remains unmarried,
Upon fulfilment of the above-said conditions, it is a conclusive proof that he is the legitimate son of that man with whom his mother is/was married. If it shows that the parties to the marriage had no access to each other at any time when he could have begotten, then it shall prevent the court to presume his legitimacy.  Sec 112. Birth during the marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. The rule, contained in the above Section, that continuance of a valid marriage will prevent an inference being drawn to the effect that the children born to a woman during the continuance of the valid marriage were born to another person as a result of adulterous intercourse is only a rule of evidence. The presumption which Section 112, Evidence Act, 1872, contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the Section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature, the husband could have been the father of the child. It is the principle of law that “Odiosa et Indonesia non sunt in lege prae sumenda” (Nothing odious or dishonourable will be presumed by the law). So the law presumes against vice and immorality. In Goutam Kundu vs. State of West Bengal and another, Supreme Court held about paternity test ( DNA test). Courts in India cannot order a blood test as a matter of course. Wherever applications are made for such prayers in order to have a roving inquiry, the prayer for a blood test cannot be entertained. There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. The Court must carefully examine as to what would be the consequence of ordering the blood test, whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. No one can be compelled to give a sample of blood for analysis. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Deoxy Nucleic Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. Sham Lal @ Kuldeep vs. Sanjeev Kumar and others, (2009); Once the validity of the marriage is proved then there is a strong presumption about the legitimacy of children born from that wedlock. The presumption can only be rebutted by strong, clear, satisfying and conclusive evidence. Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and another, (2010) Supreme court expressed his view on the DNA test that ” In a matter where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in the use of such scientific advances and tools which result in an invasion of the right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have a devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception.” It was permissible for a Court to permit the holding of a DNA test, if it was eminently needed, after balancing the interests of the parties. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption and this presumption is in favour of paternity. But the court may order to conduct a DNA test to determine the veracity of the allegations, which constitute one of the grounds, on which the concerned party would either succeed or lose.

Abuse of General power of Attorney (GPoA)

A power of attorney (POA) is a legal document that empowers a person to act on behalf of another. This provision has been abused by land sharks in the transfer of property mainly for saving of stamp duty and committing frauds. Land sharks usually targeted plots that remain uncared for over some time, and the victims include non-resident Indians. Immovable property embroiled in legal wrangling among family members was also targeted. Many frauds, take place with the collusion of village-level officials, who have access to land registers, survey numbers and boundaries. Though Section 17 of the Indian Registration Act, 1908 makes registration of GPO optional. Forging a power of attorney is cheap when compared to a sale deed because of the stamp duty on PoA, which is a mere Rs. 100 now. The Supreme Court order had mandated that transfer of properties through proper sale deed will have to be executed giving full financial details and payment of correct stamp duty.

Police officer is bound to register FIR

My uncle went to the police station for registration of FIR. Someone steal his goods from the bus station. He informed the matter to the “Dewan”, but he refused to lodge his FIR. I have heard that the police officer cannot refuse to record the FIR. However, he did so and compelled my uncle to go out of the police station. Does the police officer bound to register FIR?

Asked from: Uttar Pradesh

Section 154 of the Code of Criminal Procedure outlines the provisions regarding the registration of the First Information Report (FIR). The Code classifies offences into two categories: cognizable and non-cognizable. An FIR is to be registered only in cases involving cognizable offences.

Section 154 mandates that the officer in charge of a police station is bound to record the FIR. However, it has become a common practice among police officers to avoid registering FIRs. The National Crime Records Bureau, a central government agency, is responsible for collecting and analyzing crime data. Since the FIR serves as the primary source of information for analyzing crime rates in various states, this reluctance to register FIRs undermines the integrity of crime statistics.

The FIR represents the first information regarding the commission of an offence and initiates the criminal justice process. It is the primary duty of the police to investigate crimes, and such investigation cannot commence unless an FIR is registered.

In State of Haryana vs. Bhajan Lal (1992) 1 SCC 335, Ramesh Kumari vs. State (NCT of Delhi) (2006) 2 SCC 677, and Parkash Singh Badal vs. State of Punjab (2007) 1 SCC, the Supreme Court of India opined:

“The officer in charge of a police station is not obliged under law, upon receipt of information disclosing the commission of a cognizable offence, to register a case; rather, the discretion lies with him, in appropriate cases, to hold some preliminary inquiry concerning the veracity or otherwise of the accusations made in the report.”

As a result, police officers have often exercised discretion to conduct a preliminary inquiry before registering an FIR. However, this discretion has frequently been misused.

Importantly, Section 154 does not explicitly grant such discretion. In Lalita Kumari vs. Government of Uttar Pradesh & Others, AIR 2014 SC, the Supreme Court revised its earlier position and held that the police are bound to register an FIR if the information reveals the commission of a cognizable offence.

The Court unequivocally clarified that Section 154 mandates the registration of FIRs upon receiving information about a cognizable offence. Nevertheless, in certain circumstances, a preliminary inquiry may still be warranted.

Thus, the police cannot refuse to register an FIR if the information suggests that a cognizable offence has occurred. Section 154 allows the information to be conveyed orally; in such cases, the officer in charge must reduce the oral information to writing.

Although an FIR is not considered substantive evidence, it does carry evidentiary value. During trial, it can be used to corroborate or contradict the statements of witnesses. Therefore, an FIR should be concise and accurately reflect the incident. It should not exaggerate facts to present a more severe offence than what actually occurred.

Information should be provided at the earliest opportunity, as delays in filing an FIR can suggest that the report was fabricated or manipulated to falsely implicate someone. If there is a delay, the informant should explain the reason within the FIR itself.

Unlawful assembly

Section 141 of the Indian Penal Code (IPC) defines the offense of "unlawful assembly." Section 144 of the Indian Penal Code (IPC) addresses individuals who are part of an unlawful assembly and are armed with deadly weapons. If someone joins such an assembly with weapons or objects that can cause death when used offensively, they can face up to two years of imprisonment, a fine, or both. This section intensifies the punishment compared to Section 143 due to the heightened threat posed by the presence of weapons.

Unlawful assembly

Unlawful assembly, as per Section 141 IPC, refers to a group of five or more individuals with a shared intent to commit a specified illegal act. According to this section, when five or more people come together with a common object, and their assembly is with the intention of committing an offense, or of making such a disturbance or breach of peace, or of committing any wrongful act, they are said to be members of an unlawful assembly.

Section 144 of the Indian Penal Code (IPC) deals with individuals joining an unlawful assembly while armed with deadly weapons. The main highlights are:

Illegal Objects of an Unlawful Assembly:

  1. Intimidate the Government using criminal force.
  2. Resist the execution of legal processes.
  3. Commit an offence.
  4. Forcefully possess or dispossess property.
  5. Compel someone to perform illegal acts.

Criteria for a Member of an Unlawful Assembly:

  1. The individual must know the unlawful nature of the assembly, as detailed in Section 141 IPC.
  2. They should intentionally join the assembly or, if they joined unknowingly, should continue participating after becoming aware of its nature.
  3. To be found guilty under Section 144 IPC, it's not enough to just be present; one has to actively commit or neglect an act they're obligated to do.

In essence, IPC 144 is a more severe version of Section 143. It specifically deals with individuals in unlawful assemblies who carry weapons capable of causing death. Conviction can result in up to 2 years imprisonment, a fine, or both. This offence is cognizable, bailable, and triable by any Magistrate.

Essential Ingredients of Unlawful Assembly:

  1. A gathering of five or more persons.
  2. They share a common purpose or intention.
  3. The intent behind the assembly must be to commit an offense, create a disturbance or breach of peace, or perform any wrongful act.

Punishments:

  1. Being a member of an unlawful assembly is punishable under Section 143 IPC, which can result in imprisonment for up to six months, a fine, or both.
  2. The offense is considered more grave if the assembly resorts to or threatens with force or violence. In such cases, punishment, as outlined in Section 144 IPC, can extend to two years of imprisonment, a fine, or both.

Principle of Joint Liability: As per Section 149 IPC, if any member of the unlawful assembly commits an offense or wrongful act aligned with the group's common objective, every member of that group can be held accountable for that deed.

Clarification: An assembly of five or more people is not inherently unlawful. It becomes unlawful when the group's shared intent involves breaking the law, causing a public disturbance, or performing any wrongful act. The provision in Section 141 IPC emphasizes the gravity of crimes committed by groups with a shared unlawful purpose.

Purpose of unlawful assembly

The purpose of an unlawful assembly is to commit an offense, make a disturbance or breach of peace, or commit any wrongful act. The members of an unlawful assembly come together with a common object that is illegal or against the public interest. Their intention is to carry out the object of the assembly, which may include acts of violence, vandalism, rioting, or other forms of criminal activity.

The unlawful assembly may be formed for various purposes, such as to protest against a particular law, policy, or decision, to support a particular cause or movement, to incite violence, or to engage in criminal activities such as theft, looting, or arson. The purpose of an unlawful assembly is to achieve its objective by using force or violence or by creating fear and intimidation.

The purpose of the law is to maintain public order and safety. Unlawful assemblies can disrupt the peace and tranquility of a community, and their actions can cause harm to people and property. Therefore, the law seeks to prevent and punish such activities to ensure that the fundamental rights and freedoms of individuals are protected, and the public order is maintained.

The law serves as a deterrent to those who may be inclined to form such groups and engage in illegal activities. It also provides a legal framework for the authorities to take action against such groups and individuals who pose a threat to the safety and security of the community.

In summary, the purpose of an unlawful assembly is to engage in illegal activities, disrupt public order and safety, and create fear and intimidation. The purpose of the law is to prevent and punish such activities to maintain public order and safety, protect individual rights and freedoms, and ensure the rule of law.

Presence in unlawful assembly

Presence in an unlawful assembly, even without participation in its unlawful activities, can lead to liability under the law. Under Section 149 of the Indian Penal Code (IPC), if any member of an unlawful assembly commits an offense in the furtherance of the common object of the assembly, then every person who is a member of that assembly is guilty of that offense.

Therefore, merely being present in an unlawful assembly can lead to criminal liability, even if the person did not actively participate in the commission of the offense. The law imposes a duty on every member of an unlawful assembly to prevent the commission of the offense, and failure to do so can result in liability.

It is essential to note that the law recognizes a distinction between a lawful and unlawful assembly. The right to peaceful assembly is a fundamental right guaranteed under the Indian Constitution. The law permits people to assemble peacefully and express their views and opinions freely, subject to reasonable restrictions that may be imposed in the interest of public order and safety.

However, if an assembly becomes unlawful, and its members engage in criminal activities, the law imposes criminal liability on every member of the assembly. Therefore, it is crucial for people to exercise caution while participating in any assembly, to ensure that they do not become part of an unlawful assembly and inadvertently become liable for any offense committed by other members of the group.

Presence in an unlawful assembly can lead to criminal liability under the law. The law imposes a duty on every member of an assembly to prevent the commission of the offense, and failure to do so can result in liability. It is essential for people to exercise caution while participating in any assembly and ensure that they do not become part of an unlawful assembly.

Presence of a person in that assembly is the most vital fact to decide his liability for the commencement of that offence. In Baladin v. State of Uttar Pradesh, AIR1956 SC 181, the supreme court expressed that mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly. If it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under Section 142 IPC.

It must be proved that he was one of the persons constituting the assembly and he entertained long with (other members of the assembly) the common object as defined by Section 141 IPC.

Overt act

When a member of an unlawful assembly commits an overt act that furthers the group's common objective, it's termed an act in pursuance of a common object. The Indian Penal Code (IPC) states that if a member carries out any act that aligns with the unlawful assembly's goal and it's an offense or a wrongful act, then every member of that group will be accountable for it. This concept is the principle of joint liability.

An overt act can be any act that is done to carry out the common object of the unlawful assembly. For example, if the common object of an assembly is to burn down a building, an overt act could be the act of pouring kerosene on the building or lighting a matchstick to ignite the fire. Similarly, if the common object of the assembly is to cause harm to a particular individual or group, an overt act could be the act of assaulting that individual or group.

It is important to note that the overt act need not be committed by every member of such an assembly. It is sufficient if one or more members of the assembly commit an overt act in furtherance of the common object, and all the members of the assembly shall be held liable for that act.

The principle of joint liability is based on the idea that the members of an unlawful assembly act in concert to achieve a common objective, and therefore, they are all responsible for the consequences of their actions. The law seeks to deter people from participating in unlawful assemblies and engaging in criminal activities by imposing strict liability on all members of the assembly for any offense committed in furtherance of the common object.

To sum up, an overt act in line with a common object denotes an action undertaken by a member of an unlawful assembly that advances the shared goal of that group. The principle of joint liability makes all members of the assembly liable for any offense committed in furtherance of the common object, even if they did not commit the overt act themselves. The law seeks to deter people from participating in unlawful assemblies and engaging in criminal activities by imposing strict liability on all members of the assembly.

An individual must commit some overt act to be implicated for the offense carried out by the unlawful assembly. In the case of Masalti v. State of U.P., AIR 1965 SC 202, the Supreme Court determined that there should be evidence showing the individual committed an overt illegal act or neglected a duty unlawfully, in line with the assembly's common objective. This principle was reaffirmed by the Supreme Court in Om Prakash Vs. State of Haryana, (2014) 5 SCC 753.

Punishments for Unlawful Assembly:

  1. Section 143 I.P.C.
    • Offense: Being a member of an unlawful assembly.
    • Punishment: Up to six months imprisonment, fine, or both.
  2. Section 144 I.P.C.
    • Offense: Joining an unlawful assembly armed with a deadly weapon capable of causing death.
    • Punishment: Up to two years imprisonment, fine, or both.
  3. Section 145 I.P.C.
    • Offense: Joining or remaining in an unlawful assembly even after being commanded to disperse.
    • Punishment: Up to two years imprisonment, fine, or both.
  4. Section 149 I.P.C.
    • Offense: If an unlawful assembly commits a crime, every member aware of the potential for that crime is deemed guilty of the committed offense.
    • Punishment: Equivalent to the punishment for the committed offense.

These sections emphasize the significance of maintaining public order and discourage group offenses, making each member accountable for collective actions.

Freedom of Assembly in the Indian Constitution:

The Indian Constitution enshrines the right to freedom of assembly as a fundamental right under Article 19. Here's a brief note on it:

  1. Article 19(1)(b): This article guarantees to all citizens the right "to assemble peaceably and without arms."
  2. Nature of the Right: The freedom permits individuals to gather and express their collective ideas, opinions, and concerns. It is intrinsic to a democratic society, enabling public meetings, processions, and parades.
  3. Restrictions: The Constitution allows the State to impose reasonable restrictions on this right in the interests of the sovereignty and integrity of India or public order. This is specified under Article 19(3).
  4. Provisions and Clarifications:
    • Assemblies should be unarmed and peaceful.
    • There's no inherent right to assemble on government land or private property without permission.
    • The assembly should not disturb public order or threaten the unity, integrity, and sovereignty of the nation.
  5. Legal Context:
    • Under Section 144 of the Criminal Procedure Code (CrPC) 1973, a magistrate can prohibit an assembly if it is believed it might disrupt public peace.
    • Section 141 of the Indian Penal Code defines when an assembly (of five or more persons) becomes "unlawful."

In essence, while the Indian Constitution assures the right to assemble, this freedom is not absolute and is subject to restrictions to ensure public order and national integrity.