Madhya Pradesh High Court
Shakeel S/O Mohammad Azhar @ Bablu ... vs The State Of Madhya Pradesh on 23 April, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 23 rd OF APRIL, 2024
CRIMINAL REVISION No. 4299 of 2023
BETWEEN:-
SHAKEEL S/O MOHAMMAD AZHAR @ BABLU (MINOR)
THROUGH FATHER MOHAMMAD AZHAR S/O ASLAM
KHAN R/O GALI NO. 1 KHALEEK KI AATA CHAKKI KE
PASS JUNA SOMWARIYA UJJAIN (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MOHD SOHAIL CHHIPA, LEARNED COUNSEL)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION MAHAKAL
DISTT. UJJAIN (MADHYA PRADESH)
.....RESPONDENT
(SHRI TARUN PAGARE, LEARNED PUBLIC PROSECUTOR FOR THE
STATE AND SHRI VINOD SEN, LEARNED COUNSEL FOR THE
RESPONDENT/OBJECTOR)
This revision coming on for admission this day, th e court passed the
following:
ORDER
The present criminal revision is filed under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred as the Act 2015) against the order dated 11.07.2023 passed in Criminal Appeal No.5650/2023 by Special Judge (Pocso Act), 2012.
2. The applicant is an accused of Crime No.713/2022 registered at Police Station - Mahakal, Dist. Ujjain under Section 302 of IPC on the complaint dated 06.07.2022 made by the relative of the deceased namely Shri Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 24-04-2024 17:34:15 2 Ashish S/o Suresh Chand Songara. During investigation, the respondent has arrested various accused persons and also charged the accused persons with Sections 147, 148, 323, 120-B, 354 of IPC and Section 7 & 8 of POCSO Act. The applicant filed an application for considering him as a juvenile before the Juvenile Board, Ujjain which has been dismissed by order dated 04.03.2023. Being aggrieved by order dated 04.03.2023, the applicant filed an appeal bearing Criminal Appeal No.5650/2023 with registration No.126/2023 under Section 101 of the Act, 2015 which was dismissed by the impugned order dated 11.07.2023.
3. Counsel for the applicant submits that the Juvenile Board and the Appellate Court had erred while rejecting his application to consider/treat him as a juvenile. By the impugned orders, the Juvenile Board and the Appellate Court have found the age of the accused at the time of incident 18 years and 8 months and directed the trial of the applicant before the competent trial Court. The applicant has relied on birth certificate (Annexure P/5) and photocopy of duplicate of birth certificate Annexure P/6 in which his date of birth is recorded as 15.06.2005 and as per the said date of birth, his age comes to 17 years 6 months and, therefore, he should have been tried as a juvenile.
4. It is further submitted that the Juvenile Board under Section 94 of the Act, 2015 has examined father and mother namely, Shri Mohammad Azhar and Smt. Shabana Bee and also examined Smt. Dolly Chauhan (Principal of Government Urdu Primary School, Ujjain), Smt. Hemlata Joshi (Headmaster of Jai Bharti Primary and Secondary School, Ujjain), Smt. Sarita Sanwala (Principal of Jai Bharti Primary and Higher Secondary School, Ujjain, Shri Akash Shrivastava (Grade-3 Officer of Nagar Palika Nigam, Ujjain), but erroneously held that the birth certificate filed by the applicant is not a genuine document and is a suspicious document. The Board relying on the school Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 24-04-2024 17:34:15 3 certificates, scholar register etc held that the age of the applicant was more than 18 years 6 months on the date of incident and, therefore, rejected his application for treating him as juvenile.
5. It is argued that Juvenile Board and appellate Court have erred while disbelieving the birth certificate. Birth certificate would prevail over the school documents and scholar register. In support of his submission, he has placed reliance on the judgment passed by the Apex Court in the case of CIDCO vs. Vasudha Goarakhnath Mandevlekar (Civil Appeal No.3615/2009, decided on 15.05.2009), Jabar Singh vs. Dinesh & Anr. (Criminal Appeal No.487/2010, decided on 12.03.2010) and Ramesh Chandra vs. Kailash Chandra (SA No.42/2004 decided on 14.09.2017). He further argued that the Board has failed to make preliminary assessment into heinous offences as per Section 15 of the Act, 2015 which is mandatory requirement. He further referred the following definitions:-
i . Section 2(12) -"Child" means a person who has not completed eighteen years of age;
ii. Section 2(13) -"Child in conflict with law" means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence;
iii. Section 2(35) "Juvenile" means a child below the age of eighteen years;
6. He contended that as per the aforesaid definitions, a person, who has not completed 18 years of age has to be treated as 'child', 'child in conflict with law' and 'juvenile' and, therefore, he has to be tried as a juvenile.
7. He also referred the judgments passed by the Apex Court in the case Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 24-04-2024 17:34:15 4 o f Pawan Kumar vs. State of UP & Ors. (Criminal Appeal No.3548/2023, decided on 21.11.2023) in support of his submission that in the assessment of age of a juvenile, a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. He also relied on the judgment of Arnit Das vs. State of Bihar (2000) 5 SCC 488 which has been considered in the case of Pawan Kumar (supra). It is also asseverated that the other accused persons, who were between the age of 16-18 years, the Juvenile Board had conducted preliminary assessment under Section 15 of the Act, 2015 and they have been referred for trial as a juvenile. The applicant has been discriminated.
8. Per contra, counsel for the respondent supported the orders impugned and submitted that both the Juvenile Board and the Appellate Court prima facie found the birth certificate to be a suspicious document and has rightly relied the school certificate and scholar register in which the date of birth of the applicant in numbers and words are clearly mentioned to be 15.06.2004, according to which the applicant is 18 years 6 months on the date of incident. He referred Birth Certificates Annexures P/5, P/6 and the statement of PW-2 Akash Shrivastava, PW-1 Sarita Sawla, PW-3 Hemlata Joshi and the statement of mother of the applicant PW-5 Shabana. He further submitted that in exercise of the powers under Section 110 of Act, 2015, the State Government has framed the Rules called Madhya Pradesh Juvenile Justice Rules, 2022 (hereinafter referred as 'Rules 2022'). He referred Rule 65(5) in support of his submission that in the matter of assessment of age of a juvenile where the birth certificate is suspicious and more than one, in such cases, the Board has to Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 24-04-2024 17:34:15 5 make assessment on the basis of school certificates. He also argued that the school certificate fulfills the requirements of Section 35 of Evidence Act and, therefore, would prevail over the birth certificates.
9. I have heard learned counsel for the parties at length.
10. I do not find any illegality in the impugned orders passed by the Board and the Appellate court. The applicant has relied on a birth certificate Annexure P/5 which was marked as Ex.P/3 and he obtained another birth certificate after the registration of offence on 20/02/2023. In the Annexure P/5 and P/6, the date of birth of the applicant is recorded as 21/06/2005 and as per the said date he was below 18 years. The birth certificates were issued by Municipal Corporation, Ujjain, PW-2 Akash Shrivastava, who was working as Assistant Gr. III in the Corporation was examined before the Board. He stated that in the birth certificate, the name of child was not mentioned. It was a blank birth certificate. When the mother of the applicant submitted an affidavit on 08/12/2022 after the incident i.e. 06/12/2022 the name of present applicant was mentioned in the said column by a separate pen. He proved the issuance of the certificate, but clearly stated that the name of the applicant was not mentioned in those certificates. They were blank and the name was entered only after receiving the affidavit by mother of the applicant after the incident. This fact is further established from the testimony of mother of the applicant PW-5 Smt. Shabana who deposed that she had filed affidavit which was marked as Ex.B/4 on 08/12/2022 after the incident. Thus, considering the aforesaid two birth certificates issued by the Corporation and testimony of PW-2 Akash Shrivastava and PW-5 mother of the applicant Shabana, the Board and the Appellate Court found that the birth certificate was a suspicious document and Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 24-04-2024 17:34:15 6 was not an authenticate genuine document to prove the age of the applicant to be less than 18 years. On the contrary, the Respondents have filed the school certificates of Jay Bharti Higher Secondary School, Ujjain Annexure P/12 onwards. All these school certificates and scholar register clearly mentioned the date of birth of the applicant in number and words as 15/06/2004 (15th June, 2004) and as per the above school certificates the age of the applicant is 18 years 6 months on the date of the incident.
11. The aforesaid certificates of school record have been proved by Smt. Dolly Chauhan, Principal, Smt. Hemlata Joshi, Head Master and Smt. Sarita Sanwala, Principal. These documents clearly prove the age of accused was more than 18 years. They are admissible in evidence as per Section 35 of Evidence Act. Before adverting to the judgments referred by the applicant, it is apposite to reproduce relevant Rule 4 of Rules 2022.
Rule 65. Age Determination of Children.-
(5) Where there are multiple birth certificates from different schools, the Board or the Committee or the Court, as the case may be, shall determine the credibility of such documents and decide the age with reasons specified in writing in the order.
12. The judgment in the case of CIDCO (supra) and Jabar Singh (supra) are of the judgment prior to the enactment of Act, 2015 and Rules of 2022. The aforesaid judgments would not render any assistance to the facts of the present case. In the present case, the birth certificate produced by the applicant has been found to be suspicious and not genuine and authenticate. On the contrary, the case of the Respondent is that the applicant is an adult person, as per school record, his age is more than 18 years 6 months on the date of the incident. In the case of Pawan Kumar (supra), the Court held that Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 24-04-2024 17:34:15 7 hypertechnical approach should not be adopted in a case of border line. In the present case, the Respondents have clearly established from the school record that age of the applicant was 18 years 6 months on the date of the incident. The Board and the Appellate Court have not adopted any hypertechnical approach in this case and the present case is not a case of borderline specially when the Respondents have clearly established the age of the accused person more than 18 years. As per Rule 65(5), it is for the Board to decide the authenticity of the certificate in a case where number of suspicious documents are filed. The judgments relied by the applicant are not in the reference of the Rules of 2022. The aforesaid judgments would not render any assistance to the facts of the present case. It is held that if a Birth Certificate is found to be suspicious and genuine document then the school record and scholar register would prevail for determination of the age of an accused.
13. Apart from that there is no merit in the contention of the counsel for the applicant that a preliminary assessment under Section 15 had not been carried out by the Board. When the case of the Respondent is that the accused/applicant is an adult person more than 18 years and the same is established and proved then preliminary assessment under Section 15 of the Act would not be required and the Board has to make assessment on the basis of documentary evidence. In the present case, the birth certificate filed on behalf of the applicant has been found to be suspicious and not a genuine and authenticate document. On the contrary, the Respondents have proved beyond doubt from the school record proved by the testimony of Principal and other witnesses of the school that the age of the date of birth of the applicant was recorded 15.06.2004 and he was 18 years 6 months at the time of the incident. The aforesaid documents are admissible in evidence as per Section 35 of the Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 24-04-2024 17:34:15 8 Evidence Act.
14. In view of the aforesaid, this court does not find any jurisdictional error or perversity in the order warranting any interference under revisional jurisdiction. The revision is dismissed.
(VIJAY KUMAR SHUKLA) JUDGE soumya Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 24-04-2024 17:34:15