Allahabad High Court
Mohd. Yunus vs State Of U.P. And Another on 31 May, 2018
Equivalent citations: AIRONLINE 2018 ALL 4098
Author: Mukhtar Ahmad
Bench: Mukhtar Ahmad
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED: Case :- CRIMINAL REVISION No. - 1208 of 2018 Revisionist :- Mohd. Yunus Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Nigamendra Shukla Counsel for Opposite Party :- G.A.,Ramesh Narayan Hon'ble Mukhtar Ahmad,J.
1. Assailing the judgment and order dated 20.03.2018 passed by the Addl. Sessions Judge, POCSO Act/Special Judge, Anti Corruption, Meerut in Criminal Appeal No. 07 of 2018 ( Asif Saifi Vs. State), this revision has been preferred by the first informant -Mohd Yunus.
2. The facts giving rise to this revision are that the revisionist lodged a first information report under Section 376-D, IPC and ¾ POCSO Act and Section 66 Information Technology Act,2012 against Asif Saifi and Salman. An application was moved by the opposite party no.2(Asif Saifi) claiming himself to be juvenile and an inquiry was conducted by the Juvenile Justice Board and the prayer was refused by judgment and order dated 2.8.2017 as he was found major. By the Board, date of birth mentioned in the High School Certificate was not relied upon observing that the School Certificate is not free from doubt and relied the medical report. That order of the Board was assailed in Criminal Appeal No. 07 of 2018 which has been allowed vide impugned judgment and order dated 20.3.2018 declaring the accused Asif Saifi as Juvenile. Challenging this judgment and order passed in appeal, this revision has been filed on behalf of first informant.
3. I have heard Sri Nigamendra Shukla, learned Counsel for the revisionist, Sri Ramesh Narayan Pandey, learned Counsel for the opposite party no.2 and learned AGA on behalf of State.
4. Learned Counsel for the revisionist has assailed the impugned judgment and order on the ground that the evidence of the father of the accused examined before the Board was not reliable and accused was sent for medical examination in which the accused was found to be major. Further submission is that learned Board has rightly relied on the medical examination report observing the accused was not juvenile, but learned Appellate Court adopted a wrong approach ignoring the medical examination report and relied on the High School Certificate. It is also vehemently argued that the Appellate Court wrongly relied on the judgment of the Apex Court passed in the case of Ashwani Kumar Saxena Vs. State of M.P, .AIR 2013 SC 553 by saying that it was a judgment of of two Judges Bench and the coordinate Bench of the same strength had already taken a different view in the case of Om Prakash Vs. State Rajasthan 2012 (2) Crimes-113 which was binding upon the Appellate Court. In this regard, he has cited decision in the case of National Insurance Company Vs. Pranay Sethi, 2017 ACJ 2700 (SC). It is also submitted that in view of the inquiry, the date of birth mentioned in the High School Certificate is wrong. So the medical examination report was to be relied upon by the Appellate Court too. He has placed reliance on the decision given in the case of Sushil Kumar Vs. State of U.P. 2018(1) Crimes-139(All.).
5. Per contra, learned AGA and learned Counsel for opposite party No.2, referring the High School Certificate has contended that the offence is said to have taken place on 20.3.2017 and as per High School Certificate, date of birth of accused Saifi is 01.06.2000 which shows that he was a juvenile on the date of occurrence. It is also contended that in the inquiry, Board or Court cannot go behind the certificate to examine its correctness. Only in the cases where those documents or certificate are found fabricated or manipulated, the Court , Juvenile Justice Board or the committee need to go for medical report for age determination.
6. In view of submissions made on behalf of rival parties, it comes out that in the High School Certificate of the year 2015, the age of accused Asif Saifi is mentioned as 01.06.2000 and the name of school is mentioned as N.A.S Inter College, Meerut. Its genuineness has not been challenged by the prosecution. Only this much is said that date of birth mentioned in it is wrong. As such, the only point for consideration before this Court is as to when the date of birth mentioned in the Matriculation Certificate ( which is not fabricated or manipulated) is challenged by the prosecution as the date of birth mentioned in it is wrong, the ossification test report may be relied ignoring the High School /Matriculation certificate.
7. The procedure for determining juvenility has been enumerated in Section 7A of Juvenile Justice Act and Rule 12 of 2007 Rules, which are extracted as under;
Section 7 A- Procedure to be followed when claim of juvenility is raised before any Court (1) Whenever a claim of Juvenility is raised before any Court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary ( but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made there under, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section(1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a Court shall be deemed to have no effect.
Rule 12: Procedure to be followed in determination of age:-
(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof.
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat.
(b) and only in the absence of either(i),(ii) or (iii) of clause(a) above, the medical opinion will be sought from a duly constituted Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be , the Committee, for the reasons to be recorded by them, may, if considered necessary, given benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses(a)(i)(ii),(iii) or in the absence whereof, clause(b), shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule(3), the Court or the Board as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule(3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.
(emphasise added)
8. The above provisions shows that the procedure to be followed under J.J. Act in conducting an inquiry is the procedure laid down in the statute itself. We cannot import other procedure laid down in the Code of Criminal Procedure or any other enactment while making inquiry with regard to the juvenility of a person. The age determination inquiry contemplated under J.J. Act and Rules has nothing to do with an inquiry under any other legislation. There may be situation where the entry made in the Matriculation or equivalent certificates, date of birth certificate from school first attended and even birth certificate given by a corporation or a municipal authority, or a panchayat may not be correct, but the Court or the Juvenile Justice Board or the Committee functioning under J.J. Act is not expected to conduct such a roving inquiry and to go behind those certificates to examine correctness of those documents, kept during normal course of business. In Ashwani Kumar Saxena (supra), it has been observed by the Apex Court that in this situation, only in cases where those documents/certificates are found to be fabricated or manipulated, the Court, Juvenile Justice Board or the Committee need to go for medical report for age determination. In the present case, the Transfer Certificate of NAS Inter College, Meerut from where High School was done by the accused- Asif Saifi is also available on record which shows that Neetu Bal Academy, Junior High School was the earlier school of accused. The T.C. of Neetu Bal Academy aforesaid is also on record which shows that accused Asif Saifi passed out 6th,7th and 8th classes from the School and in that T.C. also the date of birth is mentioned as 01.06.2000. In the case of Parag Bharti (Juvenile) Vs. State of U.P. Passed in Criminal Appeal no. 486 of 2016 arising out of SLP No. 5893 of 2013, the Apex Court has considered so many decisions including the decision given in the case of Om Prakash Vs. State of Rajsthan (Supra) relied upon by the revisionist and it has been observed that it is a settled proposition of law that if the Matriculation or equivalent certificates are available and there is no other material to prove the correctness, the date of birth mentioned in the Matriculation Certificate has to be treated as a conclusive proof of the date of birth of the accused.
9. This Court is of the view that in the situation of present case, there was no necessity for medical examination of the accused as the inquiry was confined to the provisions of J.J. Act and Rules. In Ashwani Kumar Saxena (supra) the inquiry was conducted even there was High School Certificate on record. The Apex Court has deprecated the procedure adopted as in the present case by the Court below . In the facts and circumstances of the present case, the law cited by learned Counsel for the revisionist do not help him.
10. In view of discussions made above, this Court comes to the conclusion that the learned Appellate Court has dealt with the question of juvenility as per the procedure laid down in the J.J. Act and Rules and has rightly relied upon the date of birth mentioned in the High School Certificate, according to which the accused Asif Saifi is minor. I find no justifiable ground for making any interference in the impugned order.
11. Hence, this revision fails and is hereby dismissed.
Order Date :- 31.5.2018 Shahid