Allahabad High Court
Irfan vs State Of U.P. & Another on 24 September, 2018
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved on 19.09.2018 Judgment Delivered on 24.09.2018 Court No. - 49 Case :- CRIMINAL REVISION No. - 3188 of 2017 Revisionist :- Irfan Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Sanjay Kumar Yadav,Sunil Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the applicant and learned AGA for the State.
2. The present criminal revision has been filed against the order dated 31.07.2017 passed by the Special Judge S.C./S.T. Act, Mainpuri in Criminal Appeal No. 6 of 2017. By that order the learned court below has rejected the Criminal Appeal preferred by the applicant against the order of Juvenile Justice Board, Mainpuri dated 25.11.2015 in Case Crime No. 57 of 2015, under Sections 302, 323, 354, 252 IPC, Police Station Lau, District Mainpuri, by which the Juvenile Justice Board had rejected the claim made by the applicant as to his juvenility with respect to the occurrence on 20.3.2015.
3. Shorn of all the details, undisputedly the incident is of the date 20.3.2015. The applicant on his part made a claim of juvenility on the basis of his High School certificate. At the same time he had disclosed before the Juvenile Justice Board that he had studied from Class I to V at the Primary School, Muira Chak. During the course of the enquiry made by the Juvenile Justice Board, the applicant had produced his High School certificate from the Prem Prayag Kanya Inter College, Bhogaon, Mainpuri wherein the date of birth of the applicant was found to be recorded as 10.7.1997. Also, a transfer certificate was filed by the applicant claimed to have been issued by the Madan Junior Basic School, Bhogaon, Mainpuri with respect to his schooling prior to his admission at the Prem Prayag Kanya Inter College, Bhogaon, Mainpuri. The Head Master of the primary school, Muira Chak had also been examined by the Juvenile Justice Board as CW-1.
4. While, according to his date of birth recorded in the High School certificate, the applicant would remain a juvenile on the date of the incident being below 18 years of age, however, the Juvenile Justice Board proceeded to reject the claim made by the applicant in view of the testimony of CW-1 (Principal, Primary School, Muira Chak) who produced the scholar register, result sheet and scholarship register pertaining to the admission of the applicant at that school. According to the scholar register thus produced by CW-1 the applicant's name was found mentioned at serial no. 1148 with his date of birth recorded as 30.4.1994. If that be his correct date of birth, the applicant had clearly attained the age of majority on the date of the incident being more than 20 years and 10 months of age on the date of the incident.
5. Further, with respect to the High School certificate relied upon by the applicant, the Juvenile Justice Board had examined the Principal of the Prem Prayag Kanya Inter College, Bhogaon, Mainpuri as CW-3. That witness could not establish the basis on which the date of birth of the applicant came to be recorded in that school record and he did not produce the admission form of the applicant. However, since admittedly, the applicant had gained admission at that school on the basis of a Transfer Certificate, therefore, the Juvenile Justice Board further examined the Principal of the Madan Junior Basic School, Bhogaon, Mainpuri as CW-4 from which institution the Transfer Certificate was claimed to have originated. In that testimony it was revealed that the applicant never studied at such school and the Transfer Certificate being relied upon by the applicant had not been issued by that school though it was the case of the applicant that he had been admitted to the Prem Prayag Kanya Inter College, Bhogaon in Class-IX after passing his Class-VIII examination from the Madan Junior Basic School, Bhogaon, Mainpuri. In such circumstances, the Juvenile Justice Board failed to give effect to the date of birth found recorded in the High School certificate of the applicant and instead gave effect to the date of birth found recorded in the record of the Primary School, Muira Chak.
6. The aforesaid order came to be challenged in appeal before the Special Judge S.C./S.T. Act, Mainpuri. The learned court below after taking note of the evidence led before the Juvenile Justice Board rejected that appeal.
7. Learned counsel for the applicant submits that in the first place in view of the clear mandate of the Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 'Rule'). Once the High School certificate had been proved, it was no longer open to the Juvenile Justice Board to look into any other material or other school record to determine the date of birth of the applicant. He would submit that the other school record is evidence of lesser value/lower preference and therefore could not be looked into in the face of the High School certificate. For ready reference, Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 reads as under:
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 or 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 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 constitute 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."
8. Second, it has been submitted, in any case if the High School record had been doubted, the Juvenile Justice Board could only have acted on the medical opinion which in the present case had also been obtained and according to which the applicant was a juvenile on the date of the occurrence.
9. Third, relying upon the decision in the case of Suhani and another Vs. State of U.P. and others, in Civil Appeal No. 4532 of 2018 decided on 26.04.2018, it has been submitted that the medical opinion ought to have been given preference and the applicant adjudged a juvenile on that basis.
10. Learned AGA on the other hand submits, in view of the fact that applicant had himself stated that he had first attended the Primary School, Muira Chak from where he migrated to the Madan Junior Basic School, Bhogaon, Mainpuri and after successfully completing his Class-VIII studies from that school, he had migrated to the Prem Prayag Kanya Inter College, Bhogaon, Mainpuri, the age disclosed by the applicant at the school first attended by him, remained a relevant fact in the enquiry conducted by the Juvenile Justice Board.
11. Then, it has been submitted that once the High School certificate produced by the applicant had been found to be inconsistent with the records of the school first attended and that inconsistency remained unexplained though there was nothing to doubt the correctness of the record of the school first attended, there was no occasion for the Juvenile Justice Board to look into the evidence of the lowest or least preference - in the shape of medical opinion.
12. As to the judgement in the case of Suhani and another Vs. State of U.P (supra), it has been stated that the above judgment has no application to the facts of the present case as it had been passed by the Supreme Court in the peculiar facts of that case and no principle of law had been laid down.
13. Having heard learned counsel for the parties, as to the correct principle, it may be seen that in the case of Abuzar Hossain @ Gulam Hossain vs State Of West Bengal, reported in 2012 (10) SCC 489, a three judge bench of the Supreme Court considered questions arising under the Juvenile Justice (Care and Protection of Children) Act, 2000 and the rules framed there under. After a detailed consideration of earlier judgments of the Supreme Court on this issue, the larger bench of the Supreme Court, laid down as under:-
"39. Now, we summarise the position which is as under:
(i) A claim of juvenility may be raised at any stage even after final disposal of the case. It may be raised for the first time before this Court as well after final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in appeal court.
(ii) For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility.
(iii) As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rule 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters' list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard and fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh and Pawan these documents were not found prima facie credible while in Jitendra Singh10 the documents viz., school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7A and order an enquiry for determination of the age of the delinquent.
(iv) An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of age of the delinquent.
(v) The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in 2000 Act are not defeated by hyper-technical approach and the persons who are entitled to get benefits of 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.
(vi) Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at threshold whenever raised."
14. As to the criteria to be adopted to test the acceptability of the evidence of the accused, the Supreme Court in Abuzar Hossain @ Gulam Hossain vs State Of West Bengal (supra) itself observed, the same cannot be catalogued. However, it was observed merely by leading some evidence in support of such school record or certificate, it cannot be urged as a rule of thumb, that no other evidence may be seen, irrespective of all or any other accentuating circumstance to doubt the genuineness or the correctness of facts stated in the document proved by the accused/claimant or that, such a claim must be necessarily, always, be allowed.
15. Thus if no other evidence is led, either as to fabrication or manipulation in the High School record or to create a reasonable doubt as to the correctness of that record or if there is no other contradictory stand taken by the accused as to the age disclosed on the strength of the High School record, or there does not exist any other circumstance as may raise a reasonable doubt as to the genuineness or correctness of the High School certificate or the date of birth of the claimant disclosed therein, then obviously the age claim made on the strength of the High School certificate must be accepted and in that event, the Court concerned may remain advised to not unnecessarily examine any other evidence.
16. Therefore, since the claim for juvenility is allowable on a single piece of documentary evidence, the Courts must carefully examine the issue of genuineness and correctness of such certificates, lest juvenility becomes an escape route to avoid justice, that each offender must otherwise be brought to. Thus a claim of juvenility, lacking in credibility or a frivolous claim or plainly absurd or inherently improbable claim has (in the opinion of the Supreme Court), to be rejected by the courts at the threshold, whenever such claim arises.
17. Then, in the case of Om Prakash Vs. State of Rajasthan & Another reported in 2012 (5) SCC 201 two school certificates had emerged. First, the claimant relied on a school certificate recording his date of birth as 30.6.1990, in his name Vijay Kumar. The prosecution relied on another school record wherein his date of birth was found recorded 12.12.1988 in the name Bhanwar Lal. While the claimant tried to disown the school certificate relied upon by the prosecution as not his but that of his elder brother Bhanwar Lal, the prosecution objected that Bhanwar Lal was an alias of the accused. It was so recorded in the police case and the accused had never objected to it. The Supreme Court disbelieved the claim of juvenility on account of a reasonable doubt as to the documentary evidence produced by the accused.
18. Also, in the case of Parag Bhati (Juvenile) And others Vs. State of U.P. and another, reported in (2016) 12 SCC 744, the Supreme Court had the occasion to consider a case of apparent conflict in different school certificates of the accused. The claim of juvenility had been rejected up to the High Court. In such an appeal, the Supreme Court then held:-
"25) In Abuzar Hossain (supra), wherein a three-Judge Bench of this Court has already summarized the position regarding what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The credibility and/or acceptability of the documents would depend on the facts and circumstances of each case and no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected and if such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7-A and order an enquiry for determination of the age of the appellant.
28) It is settled position 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. However, if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain (supra), an enquiry for determination of the age of the accused is permissible which has been done in the present case." (emphasis supplied)
19. Thus applying the principle laid down by the Supreme Court in the case of Abuzar Hossain @ Gulam Hossain vs State Of West Bengal (supra), it is seen that it cannot be urged that the rule of thumb because the High School certificate had been produced by the applicant, it had to necessarily be accepted though the basis on which his date of birth came to be recorded in that certificate was found to be false.
20. In the instant case, it is undisputed that though the date of birth disclosed in the High School certificate was recorded by the Madhyamik Shiksha Parishad, U.P., however, as per disclosure made by the Prem Prayag Kanya Inter College, Bhogaon, Mainpuri, the correctness of that record is very much in doubt since: (i) the applicant had joined that school in class IX and not before; (ii) it was the applicant's own case that upto class VIII he had studied at the Madan Junior Basic School, Bhogaon, Mainpuri; (iii) the Principal of the Madan Junior Basic School, Bhogaon, Mainpuri/CW-4 specifically stated that the applicant had neither ever studied at that school nor the Transfer Certificate being relied by the applicant had ever been issued by that school and; (iv) other than the Transfer Certificate claimed to have been issued by the Madan Junior Basic School Bhogaon, Mainpuri there is no other material that may have caused the date of birth of the applicant to be recorded as 10.7.1997.
21. Once, the applicant had himself claimed to have obtained the Transfer Certificate from the Madan Junior Basic School, Bhogaon, Mainpuri after completing his Class-VIII studies and it was on the basis of that inter school transfer alone that his date of birth came to be recorded as 10.7.1997, the complete denial made by the Principal Madan Junior Basic School Bhogaon, Mainpuri demolished the sole basis of the date of birth disclosed by the applicant in his High School record.
22. Thus merely because the applicant had produced his High School certificate that was a genuine certificate and a certain date of birth was found to recorded therein, it did not and it could not lead to the conclusion that irrespective of the grave and more than reasonable doubt existing about the correctness of such record as to the date of birth of the applicant, he must necessarily to be treated as a juvenile. Once a reasonable doubt had been created about the basis/correctness of the date of birth found recorded in the High School record, the further enquiry into that fact survived.
23. In such further enquiry, proceeding on the admission of the applicant himself, the school record of the Madan Junior Basic School, Bhogaon, Mainpuri was first sought to be examined. The non-existence and/or non-confirmation of that school record demolished the only basis and/or the correctness of the date of birth recorded at the Prem Prayag Kanya Inter College, Bhogaon, Mainpuri that in turn had given rise to the High School record. There neither existed the Transfer Certificate nor the applicant ever led any other evidence to establish how his date of birth came to be recorded as 10.07.1997 at the Prem Prayag Kanya Inter College, Bhogaon, Mainpuri.
24. Consequently, the date of birth of the applicant recorded at the primary school became of prime importance inasmuch as it was the applicant's admitted case that he had first attended that school and that claim was found to be true on the basis of the evidence led by the the Principal of the Primary School, Muira Chak, Mainpuri. In that school record, the date of birth of the applicant was found recorded as 30.04.1994. It was duly proved. It has still not been doubted by the applicant.
25. Thus, the correctness of the claim made by the applicant on the strength of the High School certificate stood negated/disproved as above. In absence of anything to doubt the correctness of next lower preference being the date of birth found recorded at the school first attended by the applicant, there remained no occasion for the Juvenile Justice Board to either obtain or to consider the evidence of still next lower preference being medical opinion to determine the age of the applicant, in view of the clear mandate of the Rule 12 of the Rules.
26. As to the judgment of the Supreme Court in the case of Suhani and another Vs. State of U.P. and others in Civil Appeal No. 4532 of 2018 decided on 26.04.2018 wherein it has been observed as below:-
"In view of the conclusion arrived at by the All India Institute of Medical Sciences, we are of the considered opinion that the petitioner no. 1 is a major, and the High Court was not correct in directing her to stay in the Nari Niketan, Allahabad. The petitioner no. 1 admits the factum of marriage, before us. Therefore, she is entitled to accompany the petitioner no. 2, who is her husband.
CA 4532/2018 @ SLP(C) 8001/2018 In view of our conclusion that she is an adult and she had gone voluntarily with the petitioner no. 2 and entered into wedlock, the criminal proceedings initiated under Sections 363 and 366 of the Indian Penal Code against the petitioner no. 2 stands quashed. We have passed this order of quashing the proceedings to do complete justice.
The appeal is accordingly allowed and the impugned order passed by the High Court is set aside. Pending interlocutory applications, if any, shall stand disposed of."
(emphasis supplied)
27. Thus, it is seen that in the first place, the Supreme Court had passed that order in it's jurisdiction to do complete justice, without interpreting the law. Therefore, no principle of law is to be inferred there from. Even otherwise, the judgment of the Supreme Court in the case of Suhani and another Vs. State of U.P (supra) would have no application to the facts of the present case. In that case, it was the victim or the affected person and not the other side who raised the plea that the former (the affected person), was not a minor child on the date of the incident. The applicant herein is not setting up such plea. In fact his case is to the contrary. The Supreme Court, in that fact, called for a medical opinion to be obtained as to the age of the victim/affected person. The medical opinion expressed that the said victim/affected person was more than 18 years of age and thus not a juvenile. Then, in view of her clear statement that she had voluntarily married the opposite party no. 2, the criminal proceedings initiated against the accused person, were quashed. Thus the person who was affected by the special law had waived a right given to her to claim a benefit on the basis of a particular evidence. No such analogy can be drawn in the present case where the affected person being the accused person is not seeking to waive such benefit but rather, he is claiming it for his benefit. Thus, the judgment in the case of Suhani and another Vs. State of U.P. and others (supra) is not applicable to the facts of the present case.
28. Similarly the division bench of this Court in the case of Smt. Priyanka Devi Vs. State of U.P. and 4 others, reported in 2018(2) ALJ 203 had been taken into consideration the effect of Section 94 of the Juvenile Justice (Care and Protection of Children), Act, 2015 viz-a-viz the victim/affected person in the context of a Habeas Corpus Writ Petition. In that case, while the detenue would have to be treated as a juvenile according to her date of birth recorded in her High School certificate, she would have to be treated as a person who had attained the age of majority, according to her date of birth recorded in the primary school record. However, the determination of age made by the C.J.M., on the basis of her High School certificate was approved by the division bench with an observation as under:-
"By now through consistent judicial authority in different contextual situations under the law embodied in different statutes a general principle appears to have been evolved that the date of birth mentioned in the High School is to prevail over other evidence shown in records from lower rungs of school education and other authorities. High School certificates that are issued by statutory Boards have come to be accepted as a declaration of a person's age in rem that binds the holder of the certificate and all others dealing with him in different transactions. The learned C.J.M. in the opinion of this Court was, therefore, not in error at all in preferring the High School certificate over the primary school certificate while determining the question of the petitioner's minority."
29. In that case, no reasonable doubt had been raised as to doubt the correctness of the age recorded in the High School record of the detenue. In absence of such challenge, the division bench caused to be preferred the date of birth recorded in the High School certificate over the date of birth recorded in the primary school record. That judgment is also of no help to the applicant in view of specific challenge raised as to the genuineness or correctness of the date of birth recorded in the High School record.
30. In the instant case, as noted above, more than reasonable doubt has arisen as to the genuineness or correctness of the date of birth of the applicant recorded in the High School certificate of the applicant. Therefore, in view of the principle laid down by the Supreme Court in the case of Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal (supra), the Juvenile Justice Board was not bound to determine the claim of juvenilty set up by the applicant on the basis of such a High School record.
31. It may also remain a matter to be considered in an appropriate case whether upon the enforcement of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, any inherent preference in favour of the High School Certificate may survive over an undisputed other school record since upon an enforcement of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, the school certificate and the Matriculation certificate have been placed in the same horizontal category of vertical preferences created by that provision (to different evidence).
32. Consequently, it is held that the High School certificate relied upon by the applicant lost its evidentiary value vis-a-vis date of birth claimed by the applicant in view of more than a reasonable doubt having arisen as to the correctness of the date of birth recorded therein and in view of the fact that the applicant's claim of having studied at the Madan Junior Basic School, Bhogaon from Class VI to Class VIII was found to be false or not genuine. There survived no basis for discloure of his date of birth as 10.07.1997 while obtaining admission at the Prem Prayag Kanya Inter College, Bhogaon, Mainpuri. Then, on the own admission of the applicant that he had first attended the Primary School, Muira Chak, a different date of birth (30.04.1994) had been found recorded that was also duly proved. In view of the proven date of birth 30.04.1994 on the basis of the record of the primary school, the Juvenile Justice Board did not commit any error in deciding the issue of juvenility on the basis of that evidence was of the second highest evidenciary value/preference under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007.
33. The medical opinion was wholly inconsequential in presence of evidence of the second highest quality and again the Juvenile Justice Board has not committed any error in ignoring such medical evidence.
34. The present revision lacks merit and is accordingly dismissed.
Order date: 24.09.2018 Prakhar