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Source: Delhi High Court 

Why in News? 

A bench of Justice Suresh Kumar Kait and Justice Manoj Jain observed that “In such cases of sexual assault, wherever, the court is called upon to determine the age of victim based on "bone age ossification report", the upper age given in "reference range‟ be considered as age of the victim”.  

• The Delhi High Court made this observation in the case of Court on Its Own Motion v. State of NCT of Delhi.  

What is the Background of Court on Its Own Motion v. State of NCT of Delhi Case? 

• This is a reference made by an Additional Sessions Judge seeking clarification on how to determine the age of victims in Protection of Children from Sexual Offences, 2015 (POCSO) cases when using bone ossification tests. 
  • The specific case that led to this reference involved an accused facing trial for offenses under Indian Penal Code, 1860 (IPC) Section 376/506 and Section 4 of POCSO Act. 
• There was no school record or birth certificate to determine the victim's age, so a bone ossification test was conducted. 
• The ossification test report estimated the victim's age to be between 16-18 years. 
• The defense argued that either:  
  • A further 2-year margin of error should be applied, making the age range 14-20 years, or 
  • At minimum, the upper age of 18 should be used, making POCSO Act inapplicable. 
• The trial court referred the matter to the Delhi High Court for clarification. 

What were the Court’s Observations?  

• The High Court held that when determining a victim's age in POCSO cases based on bone ossification tests, courts should consider the upper age of the estimated range as the victim's age. 
  • A further margin of error of 2 years should be applied to that upper age. 
• The court's reasoning included: 
  • The adversarial legal system presumes innocence and requires proof beyond reasonable doubt. Any doubt should benefit the accused. 
  • Previous judgments, including those by the Supreme Court, have held that ossification tests are not precise and a 2 year margin of error should be allowed. 
  • While this approach was originally used for juvenile offenders, the same principle should apply for determining victim ages. 
  • This interpretation aligns with established legal principles of giving the accused benefit of doubt at all stages. 
• The High Court directed the trial court to decide the case in accordance with this ruling. 

What is the Procedure of Determination of Age? 

POCSO Act: 

• Provisions 
  • Section 2(d): Defines a child as any person below 18 years of age. 
  • Section 34: Outlines the procedure for age determination by the Special Court: 
    • The court must satisfy itself about the person's age 
    • The court must record its reasons for the age determination in writing 
    • Orders made by the Special Court are not invalidated by subsequent proof of incorrect age determination 
• Landmark Judgment 
  • State v. Varun (2013): Courts should lean towards juvenility of the victim in case of doubt. 
  • Shah Nawaz v. State of Uttar Pradesh (2011): Medical opinion should be sought only when documentary evidence is unavailable. 

Juvenile Justice Act, 2015: 

• Section 94: Prescribes the procedure for age determination: 
  • Committee/Board may determine age based on appearance if obviously a child 
  • If doubt exists, seek evidence in the following order:  
    • School certificate or matriculation certificate  
    • Birth certificate from corporation, municipal authority, or panchayat 
    • Ossification test or latest medical age determination test (only if i and ii are unavailable) 
• Landmark Judgments: 
  • Jarnail Singh v. State of Haryana (2013): Held that the procedure in JJ Act should also apply to determining the age of child victims. 
  • State of MP v. Anoop Singh (2015): Confirmed that Rule 12(3) of JJ Rules 2007 applies to determining the age of rape victims. 

What is the Bone Ossification Test? 

• Bone ossification, or osteogenesis, is the process of bone formation. Bone age is calculated through ossification tests, which are guesswork based on the fusion of joints in the human body between birth and twenty – five years of age, although this varies slightly based on the individual. 
• Bone ossification test is conducted in order to find the age of the accused or victim on the date of the incident in a particular case. This test becomes pertinent in cases involving juveniles as special provisions have been created with respect to the children who are in conflict with law as well children who need protection and care [Juvenile Justice Act (Care and Protection of Children), 2015 ‘the JJ Act 2015’]. 
• Vinod Katara v. State of UP (2022) - The bone ossification test is not an exact science that can provide us with the exact age of the person.

Source: Kerala High Court 

Why in News?

Recently, the Kerala High Court in the matter of Jomi v. State of Kerala has held that as per the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) teachers cannot be prosecuted for using simple corrective measures for enforcing discipline in schools. 

What was the Background of Jomi v. State of Kerala Case?  

• In this case, a petition is filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) seeking quashment of Annexure C Final Report in Crime No.690/2018 of Kodanadu Police Station, which is now pending on the files of the Judicial First Class Magistrate Court-III, Perumbavoor against him. 
• The sum and substance of the prosecution allegation is that the victim aged 13 years, who was studying in 8th Standard was beaten by the accused, when she secured less marks in a test paper conducted by the accused, who is the English Teacher and the Principal of St.Joseph School, Thottuva, where the minor girl was studying.  
• Recording the statement of the victim, crime was registered alleging commission of offence punishable under Section 324 of the Indian Penal Code, 1860 (IPC) as well as Section 82 of the JJ Act.  
• The learned counsel for the petitioner would submit that the offence under Section 82 of the JJ Act would not attract in the present case, since Section 82 deals with corporal punishment imposed by any person in-charge of or employed in a childcare institution, who subjects a child to corporal punishment with the aim of disciplining the child.  
• The Counsel for petitioner further submitted that even offence under Section 75 of the JJ Act would not make teachers liable for imposing lesser punishment with bonafide intent on children to discipline them based on the implied authority given by the parents.   
• The High Court allowed the petition Annexure C Final Report in Crime No.690/2018 of Kodanadu Police Station, which is pending on the files of the Judicial First-Class Magistrate Court-III, Perumbavoor was quashed.  

What were the Court’s Observations? 

Observation: 

• Justice A. Badharudeen observed that if teachers being roped into under the provisions of the JJ Act for devicing simple and least onerous corrective measures to keep the discipline of the School or the Educational Institution the discipline of the School or the Institution would be in peril. At the same time, when the teacher exceeds his authority beyond the limit and causes serious injuries or physical assault of similar nature definitely the penal provisions of JJ Act would squarely apply. 

Cases Referred by the High Court in this Case: 

• K.A. Abdul Vahid v. State of Kerala (2005):  
  • In this case, it was observed that when a child is sent to Madrassa or a school, the parents of the said child give an implied authority to the master or the class teacher or Headmaster/Headmistress to enforce discipline and correct the students who commit errors in front of him or her or in the classes.  
  • If a corporal punishment is given by any of them, in the process of maintaining such discipline, and also to make him/her adhere to the prescribed standards of the school, which are necessary for the upliftment and development of the child, including the development of his character and conduct in and outside the school, so that he is trained to be aware of the good qualities of a citizen, it cannot be said to be an act intended to injure the student. 
• Rajan @ Raju, S/o.Choyi v. The Sub Inspector of Police, Feroke Police Station and Ors. (2019): 
  • In this case, it was stated that the nature of injury inflicted by teacher upon the student would determine as to whether he can be proceeded under penal provisions or not.  
  • The Court stated that acts of teacher cannot be condoned if they inflict injury on a child out unbridled fury, excitement or rage, inflicts injuries causing unreasonable physical injury or harm. 

What are the Relevant Legal Provisions Involved in it?  

Section 82 of JJ Act: 

• This Section deals with Corporal punishment. It states that— 

(1) Any person in-charge of or employed in a child care institution, who subjects a child to corporal punishment with the aim of disciplining the child, shall be liable, on the first conviction, to a fine of ten thousand rupees and for every subsequent offence, shall be liable for imprisonment which may extend to three months or fine or with both.  

(2) If a person employed in an institution referred to in sub-section (1), is convicted of an offence under that sub-section, such person shall also be liable for dismissal from service and shall also be debarred from working directly with children thereafter.  

(3) In case, where any corporal punishment is reported in an institution referred to in sub-section (1) and the management of such institution does not cooperate with any inquiry or comply with the orders of the Committee or the Board or court or State Government, the person in-charge of the management of the institution shall be liable for punishment with imprisonment for a term not less than three years and shall also be liable to fine which may extend to one lakh rupees. 

Section 75 of JJ Act: 

• This Section deals with the punishment for cruelty to child. It states that— 

Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both.  

Provided that in case it is found that such abandonment of the child by the biological parents is due to circumstances beyond their control, it shall be presumed that such abandonment is not willful and the penal provisions of this section shall not apply in such cases.  

Provided further that if such offence is committed by any person employed by or managing an organization, which is entrusted with the care and protection of the child, he shall be punished with rigorous imprisonment which may extend up to five years, and fine which may extend up to five lakhs rupees.  

Provided also that on account of the aforesaid cruelty, if the child is physically incapacitated or develops a mental illness or is rendered mentally unfit to perform regular tasks or has risk to life or limb, such person shall be punishable with rigorous imprisonment, not less than three years but which may be extended up to ten years and shall also be liable to fine of five lakhs rupees. 

What is Section 324 of IPC? 

• Section 324 of IPC deals with voluntarily causing hurt by dangerous weapons or means.  
• It states that whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 

Source: Delhi High Court 

Why in News? 

Recently, the Delhi High Court in the matter of CA Rakesh Kumar Gupta v. Supreme Court of India Through Secretary General has held that reason of rejection by the Supreme Court Collegium of the recommendation of High Court collegium for the elevation of Judges to High Court will not be in the good interest of the judges whose names have been rejected by the Supreme Court. 

What was the Background of the CA Rakesh Kumar Gupta v. Supreme Court of India Through Secretary General Case? 

• In this case the petitioner had a pending case in the District Court of Delhi which led him to file a writ petition before the Single Judge Bench. 
• The petitioner contented that the reason for non-appointment of judges should be given by the Supreme Court. 
• He argues that due to lack of judges in the country there is a pendency of cases.  
• The petitioner stated that he has locus standi to file a writ petition. 
• The learned single judge bench dismissed the writ because of absence of locus standi and imposed a fine on the petitioner. 
• In pursuant to the impugned judgement the petitioner filed an appeal before the Delhi High Court.  

What were the Court’s Observations? 

• The court stated that the appointment of judges has two aspects, one is eligibility, and the other is suitability. 
• Eligibility is to be determined as per Article 217 of the Constitution of India (COI) while suitability is to be determined in consultation and observations. 
• Further it was added that the revelation of reason for non-appointment of judges whose names were referred by the High Court would be detrimental to their interest. 
• Based on this the Delhi High Court upheld the decision of Single Judge and held that the petitioner has no locus standi to file a writ. 

What is Article 217 of the Constitution of India (COI)? 

• Appointment and conditions of the office of a Judge of a High Court: 
  • Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and [shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of  [sixty-two years]]:  
  • Provided that—  
    • a Judge may, by writing under his hand addressed to the President, resign his office.  
    • a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court. 
    • the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.  
  • A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and—  
    • has for at least ten years held a judicial office in the territory of India; or (b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession; 
  • Explanation. —For the purposes of this clause—  
    • in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law. 
    • in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person 3 [has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law] after he became an advocate. 
    • in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.  
  • If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.] 

What is the Landmark Judgement Referred in the Present Case? 

• Supreme Court Advocates-on-Record Association and Others v.  Union of India (1993): In this case the Supreme Court held that purview of judicial reviw is open for appointment but as many judges constitute for a collegium it bars the scope of any arbitrariness and offers fair procedure.