Madhya Pradesh High Court
Ajmer Singh vs State Of M.P. on 19 May, 2017
1
CRR No.464/2013
(Ajmer Singh v. State of MP & Another)
19.05.2017
Shri S. K. Tiwari and Shri S.S. Rajput, learned counsel
for the petitioner.
Ms. Sudha Shrivastava, learned Panel Lawyer for
respondent no.1-State.
Shri Pratip Visoria, learned counsel for respondent no.2.
Heard.
1. This Criminal Revision has been filed by the petitioner being aggrieved by the order dated 06.04.2013 passed in Misc. Case No.08/2012, whereby the Court of Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has accepted the claim of juvenility of respondent no.2-Kashmir Singh on the basis of the record of the School, which was first attended by him.
2. Learned counsel for the petitioner submits that on the same set of evidence, vide order dated 21.11.2012, the same Court had rejected the claim of juvenility and thereafter respondent no.2 had filed a Criminal Revision bearing No.57/2013 before this Court, in which vide order dated 13.03.2013, a direction was issued to the said Court to decide the claim of juvenility in the light of the judgment of the Hon'ble Apex Court in the case of Ashwani Kumar Saxena v. State of MP : 2013 (1) MPHT 109 (SC) and therefore, on remand, the impugned order has been passed.
3. Learned counsel for the petitioner submits that on the same set of evidence, the trial Court has diverted from its earlier opinion and has not granted any reason for taking "U" turn from it is earlier decision and therefore the impugned order suffers from infirmity. It is also submitted that none of 2 CRR No.464/2013 (Ajmer Singh v. State of MP & Another) the requirements as are provided under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter for short referred to the "Rules of 2007") is fulfilled inasmuch as the Court was obliged to see the matriculation or equivalent certificates, if available; and in the absence whereof, was obliged to see the date of birth certificate from the School (other than a Play School) first attended; and in the absence whereof, the birth certificate given by a Corporation or a Municipal authority or a Panchayat. It is submitted that since none of the conditions laid down under Rule 12 (3) (a) of the Rules of 2007 were fulfilled, therefore the Court was obliged to resort to the provisions of Rule 12 (3) (b) of the Rules of 2007, wherein he should have sought an opinion from the duly constituted Medical Board, which alone was entitled to declare the age of the juvenile or child. It is submitted that in absence of availability of first three categories and the certificate, the Court was obliged to advert to the requirement of constituting a Medical Board, therefore, the impugned order suffers from infirmity and needs to be quashed.
4. Learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Parag Bhati v. State of UP & Another as reported in 2016 Cr.L.R. (SC) 492 and placing reliance on paragraphs 25, 26 and 27, it is submitted that even the Hon'ble Supreme Court in the case of Abuzar Hossain alias Gulam Hossain v. State of West Bengal : (2012) 10 SCC 489 has summarized the position regarding what materials would 3 CRR No.464/2013 (Ajmer Singh v. State of MP & Another) prima facie satisfy the Court and/or are sufficient for discharging the initial burden. It has been held that the documents referred 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 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.
5. Similarly, reliance has been placed on the judgment of this Court in the case of Mubeen Hussain v. State of MP as reported in 2016 (2) Cr.L.R (MP) 306, wherein it has been held that in absence of certificate of second and third category, the Court relied on the age determination made by the Medical Board and rejected the claim of the applicant claiming juvenile status. Placing reliance on the said judgment, it is submitted that since there was no material of category of second and third as prescribed in Rule 12 (3) (a)
(i) to (iii), therefore the Court has erred in passing the impugned order.
6. On the other hand, the learned counsel for respondent no.2 submits that it is the appreciation of the material which is important. In the first round of litigation, vide order dated 21.11.2012, the Sessions Court had placed reliance on such 4 CRR No.464/2013 (Ajmer Singh v. State of MP & Another) material like age mentioned in the voter list and also mentioned in other criminal cases lodged against the petitioner and those could not have been relied upon in terms of the provisions contained in Rule 12 of the Rules of 2007, therefore, he had filed a revision case, in which this Court was required to remind the trial Court that it was required to embark upon the age determination enquiry in terms of the provisions contained in Rule 12 of the Rules of 2007 and since there is no dispute as to the certificate produced by respondent no.2-Kashmir Singh before the Court, which was already on record while passing of the order dated 21.11.2012, namely, Register showing admission of respondent no.2, Ex.P/A-1 showing his date of birth as 06.04.1976 and therefore the School Leaving Certificate Ex.P/A-2 again showing his date of birth as 06.04.1976 and then Register Ex.P/A-3 in which at Sr.No.25, the name of respondent no.2 and his date of birth are mentioned clearly demonstrating that there was sufficient evidence to satisfy the requirements of Rule 12 (3) (a) (ii) and since these documents were not rebutted by the petitioner nor they were produced in other evidence in terms of the requirements of Rule 12 to show that the age of the delinquent was not more than 18 years, the trial Court has not erred in deciding the case of respondent no.2 in his favour and relegating the matter to Juvenile Justice Board for further orders.
7. Learned counsel for respondent no.2 has placed reliance on the judgment in the case of Ashwani Kumar Saxena v. State of MP : 2013 (1) MPHT 109 (SC), 5 CRR No.464/2013 (Ajmer Singh v. State of MP & Another) wherein the Hon'ble Supreme Court referred to Rule 12 of the Rules of 2007 and has categorically mentioned that what documents can be relied on to determine the age of a person. In para 34, it is specifically mentioned that in the absence of matriculation or equivalent certificate or the date of birth certificate from the School first attended, the Court need obtain the birth certificate from the School first attended other than the Play School. In the present case, it is not the case of the petitioner that respondent no.2 has passed matriculation or possessed of any other equivalent certificate. In absence of that, respondent no.2 was obliged to file details of his birth certificate from the School first attended other than the Play School. It is also not the case of the petitioner that the School, from which the record was produced and exhibited before the Court, was the Play School. Therefore, in absence of any such pleadings and evidence on record, the trial Court has rightly confined itself to the School record which definitely falls within the provisions of Clause (a) (ii) of Rule 12 (3) of the Rules of 2007 and therefore no illegality can be ascribed to the impugned order determining the age on the basis of the School record.
8. Accordingly, this revision fails and is hereby dismissed.
Certified copy as per rules.
(Vivek Agarwal)
meh/ Judge