Patna High Court
Niranjan Kumar @ Pankaj Kumar vs State Of Bihar & Anr on 13 February, 2012
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No. 1594 of 2009
===========================================================
Niranjan Kumar @ Pankaj Kumar S/O Late Shyamdeo Prasad Village.-
Marichagarh, P.O. & P.S. - Sarai, District.- Vaishali.
.... .... Petitioner/s
Versus
1. State Of Bihar
2. Rakesh Kumar S/O Hemant Kumar Sinha Village.- Marichagarh, P.O. and P.S.-
Sarai, District.- Vaishali at Present C/O Bijay Prasad Lala (House Owner) Mohalla-
Tangoul, P.S. Nagar Hazipur, District- Vaishali.
.... .... Opposite Parties
===========================================================
Appearance :
For the Petitioner/s : Mr. Anurag Pandey, Advocate.
For the Opposite Party no. 2 : Mr. Suresh Mishra, Advocate.
For the State :- Mrs. Indu Bala Pandey, A.P.P.
===========================================================
CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT
Date: 13-02-2012
------------------------------------
Ahsanuddin Heard learned counsel for the petitioner, learned
Amanullah, J.
counsel for opposite party no. 2 and Mrs. Indu Bala Pandey,
learned A.P.P. for the State.
This application is directed against the order dated
8.7.2009passed by the Additional Sessions Judge- II, Vaishali at Hajipur in Sessions Trial No. 137/2002 by which the Court had rejected the prayer made on behalf of the petitioner for declaring him to be a juvenile and the order dated 03.08.2009 is also an order rejecting the same on the ground that already an order has been passed by the Court on 08.07.2009.
The controversy involved in the present case is with regard to whether the petitioner is the same person in whose 2 Patna High Court CR. REV. No.1594 of 2009 dt.13-02-2012 2/9 name the Matriculation certificate has been filed in the Court below, that is, whether Pankaj Kumar and Niranjan Kumar are the same person with two names being alias of each other. This controversy has arisen due to the fact that the petitioner by his name Pankaj Kumar was made accused in Bidupur (Vaishali) P.S. Case No. 281 of 2001 dated 31.10.2001 registered under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act. The petitioner claims that his official name is Niranjan Kumar and his alias name is Pankaj Kumar and therefore, he produced copy of the Matriculation certificated issued by the Bihar School Examination Board baring no. 090627 dated 31.12.1998 in which the examinee's name is Niranjan Kumar S/o Shyam Deo Prasad and his date of birth is mentioned as 01.02.1984. The father of the petitioner also is Shyam Deo Prasad. It appears that in view of this controversy, certificate no. 929 dated 07.02.2007 was obtained from the Anchal Adhikari, Bhagwanpur (Vaishali) being the residential certificate in which the name is written as Niranjan Kumar @ Pankaj Kumar S/O Shyam Deo Prasad. There is no controversy with regard to the parentage and the place of residence of the two, that is, Niranjan Kumar and Pankaj Kumar. After obtaining the said residential certificate an application was filed before the Court concerned for declaring the petitioner to be a Juvenile, since if the date of birth as mentioned in the Matriculation certificate was taken into account then the petitioner was 17 years 8 months and 29 days old on the date of 3 Patna High Court CR. REV. No.1594 of 2009 dt.13-02-2012 3/9 occurrence which is 30.10.2001.
Learned counsel for the petitioner submits that the Court below has disbelieved and rejected the plea of the petitioner for declaring him to be a juvenile on the ground that the same was not taken at the initial stage of the proceeding and if the two persons were the same then it is expected that there ought to have been many other such documents which could have been filed. Further, the fact that the residential certificate was dated 07.02.2007 has also been taken note of but in the negative sense that the same was intentionally brought into existence to take advantage of juvenility of the accused. Finally the Court has held that Pankaj Kumar and Niranjan Kumar are not two names of one individual but rather it was two names of two different individuals. Learned counsel submits that the ground is totally untenable for the reasons that firstly, it is the Matriculation certificate which as per section 2 (k), 7A, 14 and 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended by the Amendment Act, 2006 (hereinafter referred to as the 'Act') read with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2003 (hereinafter referred to as the 'Rules') mandates that the Matriculation certificate is the first and foremost document under the Act and the Rules for the purposes of determination of juvenility and in the absence of the same various other documents including school certificate, birth certificate of the municipality etc. are to be taken into 4 Patna High Court CR. REV. No.1594 of 2009 dt.13-02-2012 4/9 consideration. It is submitted that in the present case in view of the Matriculation certificate in the name of Niranjan Kumar having been brought on record, the age has to be determined as per the entry made in the said certificate.
Learned counsel for the opposite party no. 2 submits that the father of the petitioner was a Government Servant and there ought to have been entries in various Government records both to show that Pankaj Kumar and Niranjan Kumar are the same person and also with regard to date of birth. Due to non production of such documents by the petitioner, learned counsel tried to persuade the Court to draw adverse inference against the petitioner.
Learned counsel for the opposite party no. 2 submits that the informant has filed a counter affidavit earlier and a supplementary counter affidavit today. According to him the petitioner was not a Juvenile on the date of occurrence for the reason that at the time the petitioner was seeking bail before the Court below, it was stated that he was 20 years old and subsequently also he never took the plea of Juvenility which was for the first time raised in March, 2007, after obtaining the residential certificate in February, 2007. According to him, such conduct itself leads to the inescapable conclusion that the petitioner was not a juvenile and that only after the occurrence he has been able to procure some sort of evidence for showing himself to be a juvenile on the date of occurrence. The plea has 5 Patna High Court CR. REV. No.1594 of 2009 dt.13-02-2012 5/9 been taken that rightly the Court below has rejected such prayer on the ground that the petitioner could not prove that he and Niranjan Kumar are one and the same person and the two names are alias of each other. Learned counsel has also stated that the petitioner cannot be given the benefit of the beneficiary legislation since the Act is not meant for the unscrupulous and in the present case the conduct itself disentitles the petitioner to any indulgence. For this proposition, learned counsel has relied on the decision of this Court in the case of Manu Rai @ Shyamal Rai Vs. State of Bihar & Ors. reported in 1996 (1) PLJR 66.
Learned counsel for the petitioner by way of reply has submitted that the proposition of law regarding Matriculation certificate forming conclusive proof of the date of birth has also been clarified by a Division Bench of this Court in the case of Ranjit Kumar Jha Vs. The State of Bihar reported in 2012 (1) BBCJ 353.
Upon considering the facts and circumstances of the case and upon hearing learned counsel for the parties, this Court would like to deal with the matter in some detail. There cannot be any two opinions and the law also stands well settled, both by the plain reading of the Act and the Rules as far as the issue of determination of age is concerned. Section 12 of the Rules has laid down the procedure to be followed in determination of age and its sub-section 3 (a) and (b) makes it clear that the Matriculation or equivalent certificate, if available, shall be the 6 Patna High Court CR. REV. No.1594 of 2009 dt.13-02-2012 6/9 best document and reliance has to be placed upon its entry. The other point, and more importantly, is the issue as to whether the consideration of the Court below in the impugned order is rightly directed or suffers from serious error. The fact that the petitioner had produced the Matriculation certificate of the year 1998 and the residential certificate issued in February, 2007 is neither disputed nor its authenticity is under challenge in as much as neither the parties nor the Court has gone on this aspect and thus it had to be held that the same are genuine documents. The second point which immediately follows is whether the same can be relied upon. Both the documents come under the category of admissible documents under the Indian Evidence Act, 1872 and thus there is a presumption of their genuineness until proved otherwise. In the present case the parties have also not challenged its authenticity or existence. This issue stands settled in favour of the petitioner. The other ground on which the Court below has brushed aside the residential certificate is that the same has been obtained only in February, 2007 and the application has been filed in March, 2007 and thus the same is indication of the fact that the document was intentionally brought into existence to take advantage of juvenility. Obviously the certificate is of the Month of February, 2007 but the same has only been necessitated since the controversy had been raised that Pankaj Kumar and Niranjan Kumar are two different persons and to clear the field by some documents from the authority which 7 Patna High Court CR. REV. No.1594 of 2009 dt.13-02-2012 7/9 could have established the fact that Pankaj Kumar and Niranjan Kumar were the name of the same person and the two were alias of each other. Thus, to this extent the certificate was obtained only by way of a supporting document to establish that the fact pleaded by the petitioner was true. The reliance is not on the said document for the purposes of determining the date of birth which is entered in the Matriculation certificate of the year 1998, that is, much prior to the incident itself. It is common knowledge that the certificates and documents are procured as per the required need. Thus, the need for obtaining of residential certificate arose when there was controversy that Pankaj Kumar and Niranjan Kumar are two different persons. The Court below brushed aside the residential certificate issued by an officer of the State Government and thus in the absence of the said certificate being challenged, the benefit, according to this Court, would go to the petitioner and the Court below has erred on this front.
The matter was heard at length on 9.2.2012, when this Court had adjourned this case, giving time to learned counsel for opposite party no. 2 to file a supplementary affidavit with a categorical stand as to whether Pankaj Kumar and Niranjan Kumar are two different persons. This was necessitated due to the fact that it was brought to the notice of the Court that the father of the accused and the informant were cousins and thus it was submitted that it was in the personal knowledge of opposite party no. 2 as to whether Shyam Deo Prasad has two different 8 Patna High Court CR. REV. No.1594 of 2009 dt.13-02-2012 8/9 sons by the name of Pankaj Kumar and Niranjan Kumar. In the supplementary affidavit filed today, this Court does not find even a whisper with regard to such statement and thus in the absence of the same also, this Court is left with no option but to presume that Shyam Deo Prasad did not have two different sons by the name of Pankaj Kumar and Niranjan Kumar.
In light the discussions made hereinabove, this Court is of the opinion that the order impugned cannot be sustained. The plea for juvenility being taken at any stage has now been settled which can even be taken after the final Judgment/Order by the last Court. Thus, the plea taken by the petitioner to declare him a juvenile much prior to even trial having commenced, the contention of learned counsel for the opposite party no. 2 that the same was not taken initially and rather the age was mentioned 20 years, liability cannot be fastened to the extent that the petitioner would be precluded forever, since it had initially been mentioned that he is aged about 20 years. From the facts brought on record and the law as well as the submissions made, it was necessary for the Court either to accept the residential certificate, and if not satisfied, order could have been made for further enquiry from the appropriate authority, but in the absence of the same the order rejecting the plea of juvenility was not proper. As far as the issue for drawing adverse inference against the petitioner due to non production of the Government records with regard to the date of birth of the petitioner as per the 9 Patna High Court CR. REV. No.1594 of 2009 dt.13-02-2012 9/9 service records of the petitioner's father is concerned, this Court can only comment that the same is misplaced for the reason that it was the onus on the prosecution/informant to produce any counter document or make a plea to the Court for calling for the same if they had any bona fide and genuine ground to do so. This not having been done, neither adverse interference could be drawn nor the onus shifted on the petitioner and no liability could be fastened on him on this account.
In the event, this application is allowed and the order impugned is set aside. The petitioner is held to be Juvenile and shall be tried separately by the Juvenile Court and not by the Sessions Court. This Court however, would not preclude the opposite party no. 2 from raising the issue before the Court and if at any point of time, based on cogent and admissible materials, it can be proved that the petitioner was not a Juvenile on the date of occurrence, the Court shall pass appropriate order and consequences shall follow in accordance with law.
Let the order be communicated to the Court below through fax on deposition of the requisite fee on behalf of the petitioner.
(Ahsanuddin Amanullah, J) Patna High Court Dated 13th of February, 2012 Anand Kr./AFR.