Aadhaar Card Not Recognized As Document For Proof Of Date of Birth Under Juvenile Justice Act: Kerala High Court

The Kerala High Court on Thursday observed that Aadhaar card is not recognized by the Juvenile Justice (Care and Protection of Children) Act, 2015, as a document of proof of the date of birth of an accused under the Act.

Justice Bechu Kurian Thomas observed that when there is a dispute regarding the age of an accused, if a certificate from the school is available, which specifies the date of birth, that alone can be looked into for the purpose of identifying the date of birth of the alleged child under section 94(2)(i) of the JJ Act, 2015. 

...I am of the view that if there is a certificate from the school or the matriculation or equivalent certificate from the examination Board concerned that specifies the date of birth, the said document alone is acceptable as proof of age of the accused under section 94(2)(i) of the JJ Act, 2015, who claims to be a child in conflict with the law.

However, when such a document is not available, the Court clarified that in such circumstances, the documents specified in Section 94(2)(ii), i.e., birth certificate given by municipal authority or panchayat, can be accepted as proof of age. Furthermore, if the aforesaid documents are not available, resort can be made to ossification test, contemplated under section 94(2)(iii) of the JJ Act of 2015.

The Aadhaar card is not recognized by the JJ Act 2015 as a document of proof of date of birth of an accused under the said Act, the Court further observed. 

The Prosecution case is that the petitioner, who is a married man hailing from Assam, kidnapped the victim, who is a minor and subjected her to aggravated penetrative sexual assault. 

Petitioner, who stands indicted for the offences under sections 366A, 376 and 376(1) of the Indian Penal Code, 1860, apart from sections 3(a) and 4 of the Protection of Children from Sexual Offences Act 2012; however, claimed that he is only 16 years in age, and therefore he ought to be treated as a child in conflict with the law, and could not have been arrested. He sought the relief of bail.

Contentions 

The Counsel appearing for the petitioner contended that as per the petitioner's Adhaar Card, his date of birth is 02-01-2006 and therefore, he is required to be treated only as a child in conflict with the law. The Counsel further added that the date of the birth certificate issued by the Department of Health Services, State of Assam, also shows his date of birth as that on the Aadhar card. 

Public Prosecutor however pointed that the investigating officer had obtained the transfer certificate issued by petitioner's school specifying his date of birth as 13.02.2003, and this indicates that the petitioner is presently 19 years of age and, hence, he cannot be treated as a child in conflict with the law.

Public Prosecutor further contended that the date of birth on the Aadhaar card cannot be relied upon, as under the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, the date of birth is not made conclusive while under the JJ Act the main document to prove the age is the certificate from the school specifying the date of birth.

S.94 of JJ Act: Presumption and Determination of Age

The Court observed that when the age of a person, allegedly a child in conflict with law, is under dispute, Section 94 of the JJ Act mandates the procedure to be followed. The Section mandates that the child be produced before the Juvenile Justice Board, and if, on appearance, the Board is doubtful of the age, then the provision prescribes three modes for determining the same. 

• The first mode is by reference to a certificate issued by the school or the matriculation or equivalent certificate specifying the date of birth of the child.
• If such a certificate is not available, then the date of birth can be determined by reference to the birth certificate issued by a local authority like a Panchayat, Municipality or Corporation.
• If both the aforesaid documents are not available, then the age of the child has to be determined on the basis of an ossification test or other latest medical age determination test to be conducted.

The Court observed that from the wording of the provision, it is evident that if a certificate from the school is available, which specifies the date of birth, that alone can be looked into for the purpose of identifying the date of birth of the alleged child.

The Court further observed that the birth certificate issued by the Government Health Department of Assam cannot be taken into the reckoning for the purpose of determination of the age of a child in view of the statutory mandate of section 94 of the JJ Act of 2015, as school transfer certificate specifying the date of birth of the petitioner was available.

The Court observed that prima facie, the age of the petitioner is found to be above 18, and therefore, the investigating officer was justified in treating the petitioner as an adult.

The Court, noting that the accused is a married man alleged to have committed rape on a minor and the fact that the investigating officer apprehends the accused might abscond, observed that the petitioner cannot be released on bail and thereby dismissed the petition. 

Even though petitioner was arrested on 03.06.2022 and has been in detention since then, I am of the view that considering the gravity of the offence, the circumstances and the possibility of the accused intimidating the witnesses, including the victim, this is not a fit case where the petitioner could be released on bail, at this juncture.

Advocates Vishnu Babu, Aswini Shankar, P. Yadhu Kumar and Swetha K S appeared for the Petitioner. 

Public Prosecutor Advocate M.K. Pushpalatha appeared for the State. 

Case Title: Sofikul Islam v. State of Kerala 

Citation: 2022 LiveLaw(Ker) 596

Click Here To Read/Download The Order