Allahabad High Court
Satya Pal Singh vs State Of U.P. & Another on 12 April, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 12 Case :- CRIMINAL REVISION No. - 1207 of 2010 Petitioner :- Satya Pal Singh Respondent :- State Of U.P. & Another Petitioner Counsel :- Rahul Chaturvedi Respondent Counsel :- Govt. Advocate,B.C. Mishra,S.P. Giri AND Case :- CRIMINAL REVISION No. - 1615 of 2010 Petitioner :- Shri S.P. Singh Respondent :- State Of U.P. & Another Petitioner Counsel :- Rahul Chaturvedi, Respondent Counsel :- Govt. Advocate,B.C. Mishra,S.P.Giri Hon'ble Aditya Nath Mittal,J.
1. Heard learned counsel for the revisionist, learned A.G.A. and learned counsel appearing for opposite party no.2.
2. Criminal Revision No.1207 of 2010 has been filed against order dated 20.2.2010 passed by Additional Sessions Judge, Mathura by which the opposite party no.2 has been declared as juvenile.
3. Criminal Revision No.1615 of 2010 has been filed against order dated 7.4.2010 passed by Additional Sessions Judge Court No.2, Mathura by which the opposite party no.2 has been enlarged on bail mainly on the ground that he is a juvenile.
4. Both the revisions are regarding same controversy hence they are taken together for decision.
5. Learned counsel for the revisionist has submitted that the opposite party no.2 is himself is a hardened criminal and he belongs to a family of criminals. It has also been submitted that learned court below has wrongly discarded the report of Chief Medical Officer, Mathura who has assessed the age of the opposite party no.2 as about 23-24 years. It has also been submitted that the copy of Parivar Register has also been discarded without any sufficient ground and the School Certificate in which his date of birth was mentioned as 15.8.1992 has been wrongly relied upon. There were manipulations in the concerned registers. It has also been submitted that as per the school records the opposite party no.2 has appeared in High-school examination from two schools which is not practically possible.
6. Learned counsel for the opposite parties has submitted that court below has not committed any illegality in relying upon the date of birth mentioned in the High-school certificate and it has also been submitted that if the opposite party no.2 has appeared from two centres in the same year even then his date of birth is same which is 15.8.1992. It has also been submitted that learned court below has not committed any illegality in granting the bail on the ground of juvenality because on the date of occurrence he was juvenile. It has also been submitted that the history of the family cannot be taken into consideration and the court has to see whether after release on bail, there is any possibility of coming into the association of hardened criminal or not. It has also been submitted that in none of the cases the opposite party no.2 or his father has been convicted.
7. A case at Crime No.178 of 2009, under Sections 147, 148, 149 and 302 I.P.C. was registered at P.S. Suree, District Mathura regarding an incident of 11.6.2009 in which it was alleged that the opposite party no.2 along with his companions had fired by country made pistol on Mahendra Singh due to which he was injured. Subsequently the case was converted into Section 302 I.P.C. because the said injured had expired due to said injuries.
8. Learned counsel for the revisionist has relied upon Om Prakash Vs. State of Rajasthan and another, 2012 Law Suit (SC) 223, in which Hon'ble the Apex Court has held as under:-
"18. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled for this special protection under the Juvenile Justice Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice. Hence, while the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority. Under such circumstance, the medical evidence based on scientific investigation will have to be given due weight and precedence over the evidence based on school administration records which give rise to hypothesis and speculation about the age of the accused. The matter however would stand on a different footing if the academic certificates ad school records are alleged to have been with held deliberately with ulterior motive and authenticity of the medical evidence is under challenge by the prosecution."
9. In the present case the school certificates have not been withheld deliberately with any ulterior motive but the genuineness of the school records have been challenged on the ground that the opposite party no.2 had appeared in High-school examination from two schools in the same year.
10. Learned counsel for the revisionist has further relied upon Pappi @ Prem Singh Vs. State of U.P., 2006 (55) ACC 939, in which the bail application after conviction has been rejected and the reasons for rejection have been given that if the accused-revisionist is released on bail, he would come into contact with his brothers who are co-accused and have been convicted in the case and then the possibility of tampering with the prosecution evidence by them and threatening the prosecution witnesses of tender age cannot be ruled out.
11. Learned counsel for the revisionist has further relied upon Jyoti Prakash Rai @ Jyoti Prakash Vs. State of Bihar, (2009) 3 SCC (Cri) 796, in which Hon'ble the Apex Court has held as under:-
"12. The 2000 Act is indisputably a beneficial legislation. Principles of beneficial legislation, however, are to be applied only for the purpose of interpretation of the statute and not for arriving at a conclusion as to whether a person is juvenile or not. Whether an offender was a juvenile on the date of commission of the offence or not is essentially a question of fact which is required to be determined on the basis of the materials brought on records by the parties. In absence of any evidence which is relevant for the said purpose as envisaged under Section 35 of the Indian Evidence Act, the same must be determined keeping in view the factual matrix involved in each case. For the said purpose, not only relevant materials are required to be considered, the orders passed by the court on earlier occasions would also be relevant.
13. A medical report determining the age of a person has never been considered by the courts of law as also by the medical scientists to be conclusive in nature. After certain age it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. This Court in Vishnu v. State of Maharashtra [(2006) 1 SCC 283], opined:
"20. It is urged before us by Mr Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and, therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted. We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence. The opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact.
In the aforementioned situation, this Court in a number of judgments has held that the age determined by the doctors should be given flexibility of two years on either side."
12. Learned counsel for the revisionist has drawn my attention to Rule 22 of U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004. Sub-rule 5 of Rule 22 provides as under:-
"22. Procedure to be followed by a Board in holding inquiries and the determination of age.--
(5)In every case concerning a juvenile or child, the Board shall either obtain:-
(i) a birth certificate given by a corporation or a municipal authority; or
(ii) a date of birth certificate from the school first attended; or
(iii) matriculation or equivalent certificates, if available; and
(iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding his age; and, when 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."
13. Learned counsel for the opposite party no.2 has relied upon Shah Nawaz Vs. State of U.P., (2011) 5 Supreme 476, in which Hon'ble the Apex Court has held as under:-
"(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 Medical 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, give 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."
14. Learned counsel for the opposite party no.2 has further relied upon Amol Singh @ Bade @ Rajesh Vs. State of U.P. and another, 2012 (3) JIC 723 (All), in which this Court has held as under:-
"11.The provisions of Rule 22 (5) have binding effect, therefore, the learned Special Judge has no option except to follow the procedure laid down therein. It appears that learned Special Judge, has considered voter list, Kutumb Register and the oral evidence adduced by both the sides. The court below has not properly considered the school leaving certificate. Thus, learned lower Court has not decided the question of the applicant being juvenile in accordance with the provision of Rule 22 (5) of the U.P. J. J. Rule, 2004. The impugned order, therefore, suffers with patent illegality. The learned lower Court while deciding the application of the revisionist has substituted his own procedure and way in deciding whether the revisionist/accused is juvenile ignoring the mandatory provisions of Rule 22 (5) of the rules. Thus, the proceedings adopted by the Court below has vitiated the entire proceedings. The impugned order thus, suffers with material illegality and deserves to be set aside."
15. In the present case the application for declaring the opposite party no.2 as juvenile was rejected by Juvenile Justice Board on the ground that in the Family Register maintained by Gram Panchayat, the year of birth of Gopal Singh son of Pappu Singh (opposite party no.2) is 1990 and in the Medical Certificate also he has been assessed as 23-24 years. The Juvenile Justice Board has also taken into consideration the fact that the counsel for opposite party no.2 had moved an application before the court that he is not satisfied with the medical report issued by Chief Medical Officer, Mathura, therefore, he may be re-examined but subsequently this application was not pressed. Accordingly, the Juvenile Justice Board draw its presumption that the accused was satisfied by the medical examination report. Upon physical appearance also the Juvenile Justice Board came to the conclusion that the opposite party no.2 appears to be a major person, therefore, he was declared major by order dated 27.11.2009.
16. This order was challenged in Criminal Appeal No.301 of 2009 in which learned Additional Sessions Judge considering all aspects of the matter has relied upon the date of birth mentioned in the High-school Examination for the year 2008 which was 15.8.1992. The occurrence had taken place on 11.6.2009. Learned Appellate Court relying upon Juvenile Justice Rules, 2007 came to the conclusion that as per Rules, the School Certificate shall be given preference and if the School Certificate is not available then the other alternatives like certificate issued by Gram Panchayat can be taken into consideration and after that medical examination report can be taken into consideration. Relying upon the High-school Certificate, it was held that the date of birth of opposite party no.2 was 15.8.1992, therefore, he was juvenile on the date of occurrence i.e. on 11.6.2009.
17. In view of Rule 22 of U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004, the Board is required to obtain a birth certificate given by a Corporation or Municipal Authority at the first instance and if that is not available then the date of birth certificate from the School first attended. In the third instance the matriculation or equivalent certificate is to be obtained and in the last and in absence of above, the medical opinion by a duly constituted Medical Board subject to margin of one year may be taken into consideration. In the present case, the Juvenile Justice Board has considered the copy of Parivar Register maintained by Gram Panchayat. In view of the provisions of Sub-rule 5 of Rule 22, the Gram Panchayat cannot be said to be a Corporation or a Municipal Authority. Further more Gram Panchayat has not issued any birth certificate but is only the extract of Parivar Register according to which the birth of opposite party no.2 has been shown to have been taken in the year 1990. In the present case the date of birth certificate from the School first attended has also not been produced but the matriculation certificate has been produced. During the proceedings, Banvari Lal, who was the Principal of Maharana Pratap Higher Secondary School, Naugaun, Tehsil Chhata has been examined who has proved the Student Register and has proved that the mark-sheet of High-school fail is annexed in the Register which has been issued by his college. It has also been stated that the transfer certificate has been issued by his college according to which the date of birth is 15.8.1992. Learned counsel for the revisionist has submitted that there were over-writing on the pages of the Register, therefore, that cannot be relied upon. This witness in his cross-examination has admitted that before taking admission to this institution, he was previously a student of Smt. Kiran Devi Junior High-school, Nauhjheel and there are signatures of previous Principal on the cutting but on the second over-writing there are no signatures. Another witness Pappu son of Dan Sahay aged about 41 years has also been examined who has stated in his statement that his son Gopal Singh was born after four years of his marriage and he was born in the month of Shravan of the year 1992. Devendra son of Rajpal Singh aged about 39 years, has also been examined who was the Teacher of Smt. Kiran Devi Inter College, Nauhjheel, who has proved the admission card, the certificate issued by previous institution and the cross list of High-school examination for the session 2006-07 according to which the Roll Number of Gopal Singh was 0280824 and has proved that the date of birth of Gopal as mentioned in the record is 15.8.1992. Bhagwan Singh, Clerk of Smt. Kiran Devi Junior High-school Nauhjheel, has also been examined who has also stated that the date of birth of opposite party no.2 is 15.8.1992.
18. In the present case, all the possible evidence has been adduced and the academic certificates and school records have not been withheld deliberately with any ulterior motive. As far as the copy of the Parivar Register is concerned, it appears that no witness in this regard has been produced by any of the parties and the contents of Parivar Register have not been proved. It also appears that the said Parivar Register in original has also been proved during the proceedings. Admittedly the birth certificate given by Corporation or Municipal Authority and the date of birth certificate from the School first attended has also not been produced by any of the parties. In these circumstances, in view of provisions of Sub-rule 5 of Rule 22, it was the matriculation or equivalent certificate and the medical opinion could be relied upon but Sub-rule IV of Rule 22 provides that in absence of birth certificate and the matriculation certificate, the medical opinion may be considered. In the present case the Juvenile Justice Board has passed its decision on the basis of extract of Parivar Register and the medical opinion as well as on the basis of physical appearance. Rule 22 nowhere provides any option to the Juvenile Justice Board to assess the age of the person on the basis of physical appearance. As far as the medical opinion is concerned, it can be relied upon in absence of any aforesaid school certificates. The witnesses produced in the proceedings regarding the school certificate have been cross examined at length but nothing has come in their evidence so as to create any doubt that there is any manipulation in the date of birth as mentioned in the school records. As far as the fact that the opposite party no.2 has appeared in High-school examination from two institutions in the same year, it is relevant to mention that in both the institutions his date of birth has been mentioned as 15.8.1992. The opposite party no.2 may be liable for any prosecution for appearing from two institutions simultaneously for the same examination which is also not practically possible but apart from it, the date of birth in both the institutions have been mentioned as 15.8.1992. As there was sufficient evidence regarding the matriculation or equivalent certificates which were also available then in such circumstances, the medical opinion was not to be given any weightage in view of the provisions of Rule 22 of U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004.
19. Learned Sessions Judge, Mathura has considered all aspects of the matter in detail and the findings are based on cogent reasons supported by evidence on record, therefore, I do not find any error of law or perversity in the impugned order dated 20.2.2010.
20. As far as the grant of bail to the juvenile is concerned, Section 12 of Juvenile Justice Act, 2000 puts a restriction that if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice, he shall not be released on bail. Learned counsel for the revisionist has submitted that the opposite party no.2 belongs to a hardened criminal family and apart from present case, another case at Crime No.144 of 2009, under Sections 147, 323, 504, 506, 452 I.P.C., Case Crime No.26 of 2009, under Sections 447, 506 I.P.C. and Case Crime No.206 of 2009, under Section 2/3 Gangster Act are also pending against him. In the case Crime No.178 of 2009 the incident is said to have taken place on 11.6.2009 and the accused has been challaned in the Gangster Act on 5.8.2009 which is subsequent to the date of aforesaid crime. The other cases at Crime No.144 of 2009 and Crime No.26 of 2009 are not of grievous nature as they relate to the offences punishable under Sections 147, 323, 504, 506 and 452 I.P.C. and Section 447, 506 I.P.C. Learned counsel for the opposite party no.2 has submitted that in none of all the cases the opposite party no.2 or his family members have been convicted and these cases are still pending. It has also been submitted that in Crime No.26 of 2009, under Sections 447, 506 I.P.C., the opposite party no.2 is not named. Learned counsel for the revisionist has submitted that opposite party no.2 is the main shooter in Case Crime No.178 of 2009 which was registered for the offences punishable under Section 307 I.P.C. and subsequently has been converted into Section 302 I.P.C.
21. The bail application of the revisionist was rejected by Juvenile Justice Board by order dated 5.3.2010 which was challenged in Criminal Bail No.44 of 2010 before the Sessions Judge, Mathura. The Juvenile Justice Board has rejected the bail application mainly on the ground that he was not under the control of his father. Learned Appellate Court has considered the restrictions imposed by Section 12 of Juvenile Justice Act and has come to the conclusion that the father of the applicant is not a hardened criminal and the report of the Probation Officer also do not disclose any such fact that after releasing on bail he may come into an association with any known criminal, therefore, the appeal has been allowed and the opposite party no.2 has been released on bail subject to certain conditions.
22. Learned Appellate Court has taken into consideration all aspects of the matter as well as the criminal history of the family. Learned court below has also taken into consideration the report of the District Probation Officer and the age of the juvenile. Learned court below has taken into consideration all aspects of the matter and the findings are based on cogent reasons supported by evidence on record. In the instant case there was no evidence that the restriction imposed by Section 12 of the Juvenile Justice Act, 2000 is applicable. I do not find any error of law or perversity in the impugned order, therefore, the revision is liable to be dismissed.
23. For the facts and circumstances mentioned above, both the criminal revisions no.1207 of 2010 and 1615 of 2010 are dismissed.
Order Date :- 12.4.2013 Kpy