Allahabad High Court
Sanjay Yadav vs State Of U.P. & Another on 30 May, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment Reserved on : 02.04.2018 Judgment Delivered on : 30.05.2018 In Chamber Case :- CRIMINAL REVISION No. - 2881 of 2016 Revisionist :- Sanjay Yadav Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Rajesh Prasad Yadav,Vindeshwari Prasad Counsel for Opposite Party :- G.A.,S.K.Pal Hon'ble Umesh Chandra Tripathi,J.
[1]. Heard at length the arguments advanced by Sri Vindeshwari Prasad, learned counsel for the revisionist and in opposition, Sri S.K. Pal, learned counsel for opposite party no. 2 and Sri L.D. Rajbhar, learned Additional Government Advocate for the State of U.P. [2]. This criminal revision has been preferred against the judgment and order dated 28.06.2016 passed by Additional Sessions Judge, Court No. 4, Kanpur Nagar in Criminal Appeal No. 241 of 2014 (Sanjay Yadav v. State of U.P.), dismissing the appeal against the order dated 11.12.2012 passed by Juvenile Justice Board, Kanpur Nagar in Criminal Misc. Case No. 197 of 2009 (State v. Sanjay Yadav) arising out of Case Crime No. 648 of 2009 under Sections 364A, 302 and 201 of the Indian Penal Code (hereinafter referred to as 'IPC'), Police Station - Naubasta, District - Kanpur Nagar. Vide impugned order dated 11.12.2012, the application of juvenile (accused-revisionist) Sanjay Yadav for declaring him juvenile in conflict with law was rejected and he was declared major.
[3]. Accused-revisionist Sanjay Yadav claimed himself to be juvenile in conflict with law on the basis of his high school certificate in which his date of birth is mentioned as 13.03.1992. He passed his high school from KPY Jan Sahyogi High School, Rimbi, Kanpur. He was admitted in that school in Class IX. Before that, he studied in Sri Ram Vihari Siksha Sadan, Jabardast Kheda, Bindki, Azmatpur, Fatehpur from Class I to Class IV, in Tagore Bal Mandir, Lalaoli Road, Bindki, Fatehpur from Class V to VI and in Dayanand Inter College, Bindki, Fatehpur from Class IV to VIII. In the school-leaving certificate of Tagore Bal Mandir, Lalaoli Road, Bindki, Fatehpur, his date of birth was mentioned on the basis of his date of birth mentioned in the school-leaving certificate of previous school i.e. Sri Ram Vihari Siksha Sadan, Jabardast Kheda, Bindki, Azmatpur, Fatehpur. Similarly, in the school-leaving certificate of Dayanand Inter College, Bindki, Fatehpur, his date of birth was mentioned on the basis of date of birth mentioned in the school-leaving certificate of previous school, i.e. Tagore Bal Mandir, Lalaoli Road, Bindki, Fatehpur. Similarly, in the school-leaving certificate of KPY Jan Sahyogi High School, Rimbi, Kanpur, his date of birth was mentioned on the basis of date of birth mentioned in the school-leaving certificate of previous school i.e. Dayanand Inter College, Bindki, Fatehpur. Sri Ram Vihari Siksha Sadan, Jabardast Kheda, Bindki, Azmatpur, Fatehpur was the school where accused-revisionist Sanjay Yadav first attended. On the basis of school-leaving certificate of this school, his date of birth is recorded in other schools. But the Manager of Sri Ram Vihari Siksha Sadan, Jabardast Kheda, Bindki, Azmatpur, Fatehpur deposed before Juvenile Justice Board, Kanpur Nagar that accused-revisionist Sanjay Yadav, son of Vijay Yadav had never studied in his school and no school-leaving certificate was issued to him. Accordingly, Juvenile Justice Board held that date of birth mentioned in the school-leaving certificate is manipulated and on the basis of medical examination, the Board had determined the age of the accused-revisionist to be 19 years 11 months and 26 days on the date of the occurrence i.e. 17.08.2009.
[4]. Learned counsel for the revisionist contended that as per Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007, age of a juvenile shall be determined on the basis of his/her date of birth mentioned in the matriculation or equivalent certificate. If matriculation or equivalent certificate is not available, only then other evidences for determination of age may be considered.
[5]. In support of his contention, learned counsel for the revisionist placed reliance on the verdict of Hon'ble Apex Court in Ashwani Kumar Saxena v. State of M.P. reported in (2012) 9 SCC 750 and a full Bench verdict of this Court in Jai Prakash Tiwari v. State of U.P. reported in (2016) 97 AllCC 592.
[6]. Retorting to the submissions made by learned counsel for the revisionist, learned counsel for opposite party no. 2 has placed reliance upon the verdict of Hon'ble Apex Court in catena of cases viz. Madan Mohan Singh and others v. Rajni Kant and Another reported in (2010) 9 SCC 209, Om Prakash v. State of Rajasthan and others reported in (2012) 5 SCC 201, Abuzar Hossain v. State of West Bengal reported in (2012) 10 SCC 489 and Parag Bhati v. State of U.P. and Another reported in (2016) 12 SCC 744 and contended that if date of birth of an accused mentioned in his/her school-leaving certificate is manipulated, then date of birth shall be determined on the basis of medical examination of the accused. Accordingly, there is no illegality in the well-reasoned and well-observed judgments/orders passed by the courts below.
[7]. Learned A.G.A. was on the same page as that of learned counsel for opposite party no. 2 and contended that there is no infirmity or perversity in the impugned judgments/orders passed by the courts below.
[8]. Rule 12 of the Juvenile Justice (Care & 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 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 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 Ihe 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 or 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 of 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.
[9]. Hon'ble Apex Court in Ashwani Kumar Saxena's case (supra) observed as follows :
32. Consequently, the procedure to be followed under the J.J. Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules. We cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the court exercising powers under section 7A of the Act. Many of the cases, we have come across, it is seen that the Criminal Courts are still having the hangover of the procedure of trial or inquiry under the Code as if they are trying an offence under the Penal laws forgetting the fact that the specific procedure has been laid down in section 7A read with Rule 12.
33. We also remind all Courts/J.J. Board and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate etc. mentioned in Rule 12 (3) (a) (i) to (iii). The courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection.
34. "Age determination inquiry" contemplated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school. Only 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 given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
35. Once the court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in subsection (5) or Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the Rule 12. Further, Section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination.
36. Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination.
[10]. In Jai Prakash Tiwari's case (supra), this Court observed as follows :
30. The law that emerges from the aforesaid statutory provisions and decision of the Apex Court is that where there are certificates available, as contemplated by Rule 12 (3) (a) (i) of the Rules, 2007, the date of birth entered in such certificate is to be accepted for determining the age of the juvenile in conflict with law and the other evidences including opinion of the medical board would not be required unless it is shown that those documents or certificates are fabricated or manipulated. The age determination inquiry is to be conducted as per the Rules, 2007 and not in any other manner provided for.
[11]. In Madan Mohan Singh's case (supra), Hon'ble Apex Court observed as follows :
15. Such entries may be in any public document, i.e. school register, voter list or family register prepared under the Rules and Regulations etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain Vs. The State of U.P. & Ors. AIR 1964 SC 1625; and Santenu Mitra Vs. State of West Bengal AIR 1999 SC 1587.
16. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry in School Register/School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.
[12]. In Om Prakash's case (supra), Hon'ble Apex Court observed as follows :
27. The benefit of the principle of benevolent legislation attached to the Juvenile Justice Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well-planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue. Hence, if plea of juvenility or the fact that he had not attained the age of discretion so as to understand the consequence of his heinous act is not free from ambiguity or doubt, the said plea cannot be allowed to be raised merely on doubtful school admission record and in the event it is doubtful, the medical evidence will have to be given due weightage while determining the age of the accused.
34. The benefit of benevolent legislation under the Juvenile Justice Act obviously will offer protection to a genuine child accused/juvenile who does not put the court into any dilemma as to whether he is a juvenile or not by adducing evidence in support of his plea of minority but in absence of the same, reliance place merely on shaky evidence like the school admission register which is not proved or oral evidence based on conjectures leading to further ambiguity, cannot be relied upon in preference to the medical evidence for assessing the age of the accused.
35. While considering the relevance and value of the medical evidence, the doctor's estimation of age although is not a sturdy substance for proof as it is only an opinion, such opinion based on scientific medical tests like ossification and radiological examination will have to be treated as a strong evidence having corroborative value while determining the age of the alleged juvenile accused.
[13]. In Abuzar Hossain's case (supra), Hon'ble Apex Court observed as follows :
39.3. 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 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 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 Singh 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.
[14]. In Parag Bhati's case (supra), Hon'ble Apex Court observed as follows :
27) The benefit of the principle of benevolent legislation attached to the JJ Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well-planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue.
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.
[15]. Accordingly, it is settled position in law that if the matriculation or equivalent certificates are available and there is no other material evidence to create doubt on the date of birth mentioned in the matriculation or equivalent certificate or genuineness of the certificate, then the date of birth mentioned in the matriculation certificate shall be treated as date of birth of the accused/juvenile. However, if there is any doubt, further enquiry shall be made and the Board/Court shall be justified to determine the age of the accused/juvenile claiming juvenility, on the basis of medical opinion from a duly constituted medical board. While making enquiry for determining the age of an accused/juvenile who is involved in a grave and heinous offence, the Board/Court should be more careful and conscious.
[16]. For the reasons aforesaid, I find no illegality or perversity in the impugned judgments/orders passed by the courts below.
[17]. Resultantly, the instant revision, being devoid of merit, is dismissed.
Order Date :- 30.5.2018 I. Batabyal [Umesh Chandra Tripathi, J.]