According to the Orissa High Court, before deciding on an application, a court that is not a juvenile justice board must conduct an investigation and gather all necessary evidence by Section 9(2) of the juvenile justice act.
The Single Judge Bench of Justice Sashikanta Mishra made the following observation while setting aside an order for violating the aforementioned provision:
When such a claim is brought before a court that is not a Juvenile Justice Board, it is up to that court to conduct an investigation, gather any evidence required to establish the age, and record a ruling in the case based on that information. However, the Statute mandates that an inquiry is conducted and that, if necessary, evidence may also be taken. Of course, the provisions under Section 94 of the Act can also be taken into consideration.
An FIR was filed against unknown individuals under Sections 458/394/302 of the IPC. During the inquiry, the involvement of some individuals was discovered, and a charge sheet was filed against them, including the respondent herein. The matter was referred to the Court of Sessions for trial after Cognizance was taken.
The respondent petitioned the Sessions Court under Section 2(35) of the JJ Act, requesting that he be treated as a juvenile. He produced a School Leaving Certificate from his Government Upper Primary School's Headmaster. The prosecution opposed the application because Section 94(2) of the Act does not allow the School Leaving Certificate to be considered.
The lower court saw no basis to throw out the certificate and concluded that there was no dispute to the authority of the school record It was also decided that when two perspectives on the same evidence are feasible, the court should tend toward declaring the accused to be a child in borderline circumstances.
Counsel for the petitioners contended that the lower court, rather than the Juvenile Justice Board, should have followed the procedure outlined in Section 9(2) of the JJ Act. It was also claimed that the certificate was generated late and was most likely made just to assert juvenility.
As a result, it was emphasized that the court below should have performed an investigation and made a decision based on the facts presented by the parties to ascertain the accused's age, as required by the Statute.
Priyabrata Tripathy, Additional Standing Counsel for the State, fairly conceded that if the accused's age is elevated, the procedure stipulated in Sub-Section (2) of Section 9 of the Act must be followed. Because the Court below is not the Juvenile Justice Board, the provision in Section 9 Subsection (2) of the Act should have been followed.
Section 9(2) of the JJ Act, according to Justice Mishra, states,
"IIfa a person alleged to have committed an offense claims before a court other than a Board that the person is or was a child on the date of commission of the offense or if the court itself thinks that the person was a child on the date of commission of the offense the said court inquire inquiry, take such evidence as may be necessary (but not an affidavit), and shall record a finding on the matter, stat."
After reviewing the clause, the Court determined that when a claim is brought before a court that is not a Juvenile Justice Board, the court must conduct an inquiry and take whatever evidence necessary to ascertain the age. It further stated that the Court may examine Section 94 of the Act, which provides for the 'presumption and determination of age' when doing so.
After reviewing the evidence, the Court concluded that the Session Court failed to examine the provision under Section 9(2) of the JJ Act. As a result, the contested ruling was reversed, and the case was remanded to the lower court to reconsider the application by Section 9(2) of the Act.