Delhi District Court
Ganesh Mehto vs State on 20 March, 2015
IN THE COURT OF SH. RAKESH KUMAR1, ADDL.
SESSIONS JUDGE/ SPECIAL JUDGE (NDPS) (WEST) :
TIS HAZARI COURTS, DELHI
CR No.42/2014
Ganesh Mehto, S/o Anoop Lal Mehto,
R/o Village Ram Nagar,
P.O. & P.S. Phoolparas,
District Madhubani, Bihar. .....Revisionist.
Versus
State .....Respondent.
Date of filing of petition : 27.03.2014.
Date of arguments : 11.03.2015.
Date of Judgment : 20.03.2015.
:J U D G M E N T:
1. Aggrieved by the order dated 08.04.2013 passed by Ld. MM (West), Tis Hazari Court, Delhi in a case bearing FIR No. 88/2012 PS Moti Nagar titled as State Vs. Amar Uggersen Bhardwaj and Others, whereby the claim of Juvenility of accused Ganesh Mehto (revisionist herein) was rejected and Ld. M.M issued directions to get the age of accused/revisionist Ganesh Mehto ascertained by ossification test to be conducted by duly constituted Medical Board, the accused/revisionist Ganesh Mehto has preferred the instant revision petition on 27.03.2014 interalia praying for setting aside the impugned order dated 08.04.2013 and declaring the accused/revisionist a Juvenile.
2. Briefly stated the facts (as per revisionist) necessary for disposal of instant revision petition are that on 10.05.2012 CR No.42/2014 (Ganesh Mehto Vs. State) Page No.1 of pages 11 complainant namely Smt. Madhu Mala Mittal W/o Ramesh Kumar Mittal R/o C37, Wali Nagar, New Delhi lodged a complaint in Police Station Moti Nagar, Delhi with the allegation of robbery in her house and on her complaint, the present case FIR No.88/2012 U/s 392/397/451/411/34 IPC has been registered in Police Station Moti Nagar, Delhi. During investigation of case, one coaccused namely Amar Uggersen Bhardwaj was arrested by police on 14.05.2012 U/s 40(1) Cr.P.C by the Special Cell NDR Lodhi Colony, Delhi and on his disclosure statement, one another coaccused and present revisionist were also arrested by the Special Cell and lateron other coaccused were also arrested and after completion of investigation of present case, charge sheet was filed by the investigation officer against all the accused persons. During the proceeding of present case, revisionist raised claim of his juvenility first time before the Ld. MM on 09.11.2012 by claiming his date of birth as 02.01.1995 through an application and he also submitted the copy of his School Leaving Certificate issued by primary school of Ram Nagar District, Madhubani, Bihar, which was first attending school of revisionist and the Ld. MM issued directions to the IO for verifying the said certificate. In his report, IO had stated that concerned Principal of primary school, Village Ram Nagar has stated that as per the record available to him, the names of two students a mentioned namely Vidya Nand Yadav and Ganesh Mehto in admission register at Sl. No.80 respectively. He also submitted hand written endorsement on the copy of transfer certificate by the concerned Principal Sh. Dinesh Kamat to the effect that record pertains to the period when previous Principals were posted and he has nothing to do with the same. Subsequently, Sh. Dinesh Kamat was summoned by Ld. MM with school record CR No.42/2014 (Ganesh Mehto Vs. State) Page No.2 of pages 11 and he was examined as CW1. The relevant admission register was also perused. Than, vide the impugned order dated 08.04.2013, the claim of juvenility of present revisionist was rejected. The revisionist is challenging the impugned order on the following grounds:
(i). The impugned order is against the law and same is not based on the facts of the present case.
(ii). It has not been appreciated that as per the school leaving certificate issued by Primary School, Ram Nagar, District Madhubani, Bihar, the date of birth of present revisionist is 02.01.1995 and therefore, on the alleged date of commission of offence i.e. 10.05.2012, the revisionist was a minor. Further on getting verification conducted through IO, as well as the Principal of school, the name of revisionist is found mentioned in the admission register and the said certificate has been proved and authenticated by the Principal concerned namely Sh. Dinesh Kamat and the said certificate has been proved in accordance with law U/s 35 of Indian Evidence Act which states that "to render a documents admissible under Section 35 of the Indian Evidence Act three conditions must be satisfied, first, entry, that is relied on must be one in a public or other official book, register, or record, secondly it must be an entry stating a fact in issue or relevant fact CR No.42/2014 (Ganesh Mehto Vs. State) Page No.3 of pages 11 and thirdly it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially".
(iii). Impugned order has been passed without due application of mind and it has been ignored that it is well settled that for determination of the age concerning a child or juvenile in conflict with law, the court or the board or as the case may be, the committee referred to in rule 19 of Juvenile Justice (Care and Protection of Children) Rules, 2007, shall seek the evidence by obtaining first (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 juvenile or child. In case exact assessment of the age can not be done, the court or the board as the case may the committee for the reason to be recorded may, if considered necessary give benefit to the child by considering his/her age on lower side within the margin of one CR No.42/2014 (Ganesh Mehto Vs. State) Page No.4 of pages 11 year.
In the present case, the school leaving certificate of the revisionist i.e. marked Ex.P1 has been proved and authenticated by the concerned Principal Sh. Dinesh Kamat and there is no reason to discard it but unfortunately this aspect has been brushed aside.
(iv). It has not been considered that the certificate issued by the competent authority from the first attending school of the revisionist ought to be given the conclusive effect for the assessment of juvenility on account of Juvenile Justice Act, 2000.
(v). Ld. MM has failed to consider the facts that if there is two entries at the Sl. No.80 in the admission register and it is admitted fact of the principal that the prabhar suchi and admission register relating to the year 2001 was in torn condition. If any discrepancy is there in the record, it is settled law that the benefit goes to the accused but this aspect has been brushed aside.
3. I have heard the respective rival submissions of Ld. Counsel for revisionist as well as of Ld. Addl. PP for the State in details and also seen the judgments relied/referred by them. I have also thoroughly perused the entire relevant material placed on record including impugned order dated 08.04.2013 testimony of CW1, admission register, the contents of the instant petition and the grounds taken therein.
4. 7A. Procedure to be followed when claim of juvenility CR No.42/2014 (Ganesh Mehto Vs. State) Page No.5 of pages 11 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 recognised 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 thereunder, 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 subsection (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.
Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007-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 CR No.42/2014 (Ganesh Mehto Vs. State) Page No.6 of pages 11 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 the juvenile in conflict with law. ( (4) If the age of a juvenile or child or the juvenile in CR No.42/2014 (Ganesh Mehto Vs. State) Page No.7 of pages 11 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 subrule (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 subrule (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.
Accordingly it is only in the absence of any of the reliable documents available under rule 12(3)(a)(i) to (iii) of Juvenile Justice (Care and Protection of Children rules) that the age of the suspect juvenile is to be ascertained from a duly constituted medical board.
5. As per submissions of Ld. Counsel for revisionist, the impugned order dated 08.04.2013 can not be survived any further as the same is against the law of land and not based on the facts of the present case. In the present set of circumstances where the school leaving certificate of revisionist i.e. marked Ex.P1 mentioning the date of birth of revisionist as 02.01.1995 has been proved and authenticated by the concerned Principal Sh. Dinesh Kamat of Primary School, Ram CR No.42/2014 (Ganesh Mehto Vs. State) Page No.8 of pages 11 Nagar, District Madhubani, Bihar, according to which, the revisionist was a minor on 10.05.2012 i.e. the date of alleged commission of offence, the benefit of juvenility ought to be accrued to him. The certificate issued by the competent authority from the first attending school of revisionist ought to be given conclusive effect for the assessment of juvenility and there is no reason to discard the same on the basis of flimsy grounds and even there is any discrepancy in the record or any confusion, benefit is ought to be given to the accused.
Per contra, according to Ld. Addl. PP, the instant petition as preferred is liable to be fail as it has been failed to point out any illegality or material infirmities in the impugned order passed by Ld. MM, Delhi and Ld. Trial Court while keeping in view several discrepancies in the admission register, has rightly rejected the claim of the accused/revisionist.
6. Having heard the rival submissions of both the sides and keeping in view the entire facts and circumstances of the case, I am of the considered view that revision petition as preferred by the revisionist is liable to fail as it has been failed to point out any illegality or material infirmities in the impugned order. On finding that there is an apparent and reasonable doubt about the authenticity of record relating to the date of birth of applicant Ganesh Mehto, Ld. MM rightly issued direction for getting the ossification test of accused/revisionist herein conducted for ascertaining his age. Although it is true that being a welfare legislation, the courts should be jealous to see that juvenile derives full benefits of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the court should not adopt hypertechnical approach while appreciating the evidence adduced on behalf of the accused in support of his plea that he was a juvenile at the time of commission of offence and the CR No.42/2014 (Ganesh Mehto Vs. State) Page No.9 of pages 11 court should lean in favour of holding the accused to be a juvenile in border line cases but at the same time, it is imperative for the Courts to insure that the protection and privileges are not misused by unscrupulous persons to escape punishment for having committed serious offences. Keeping in view several discrepancies in the admission register, the Ld. Trial Court has rightly disbelieved the evidence brought by the accused/revisionist herein in support of his claim and rejected the same. Here I am fortified by the judgment reported as Amit Dass Vs. State of Bihar (2000) 5 SCC 488. Thus, I find no merits in the petition and same stands dismissed accordingly.
7. With this the revision petition stands disposed off.
8. Revision file be consigned to record room after completion of necessary formalities.
(Announced in open Court
on 20th March, 2015) (RAKESH KUMARI)
ADDITIONAL SESSIONS JUDGE
SPECIAL JUDGE : NDPS
WEST DISTRICT/ DELHI
CR No.42/2014 (Ganesh Mehto Vs. State) Page No.10 of pages 11
CR No.42/2014
Ganesh Mehto Vs. State
20.03.2015
Present: Revisionist is produced from JC.
Sh. Ram Pyara, Ld. Addl. PP for the State/respondent. Vide a separate judgment, revision petition of the revisionist stands disposed off.
Revision file be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ASJ/Spl. Judge (NDPS) (West) 20.03.2015 CR No.42/2014 (Ganesh Mehto Vs. State) Page No.11 of pages 11