Allahabad High Court
Valajindra Kaur vs State Of U.P. And Another on 12 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1591, (2019) 109 ALLCRIC 340, (2019) 203 ALLINDCAS 864, (2020) 110 ALLCRIC 44
Author: Pradeep Kumar Srivastava
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
RESERVE
Court No. - 68
Case :- CRIMINAL REVISION No. - 1472 of 2014
Revisionist :- Valajindra Kaur
Opposite Party :- State Of U.P. And Another
Counsel for Revisionist :- Devraj Rajvedi, Amit Kumar Srivastava, Krishna Datta Tiwari, Pooja Srivastava, Rahul Chaturvedi
Counsel for Opposite Party :- Govt. Advocate, Satyendra Narayan Singh, Subhash Chandra Pandey, Varinder Singh
Hon'ble Pradeep Kumar Srivastava,J.
1. Heard Shri B.K. Srivastava, Senior Advocate assisted by Ms. Poooja Srivastava, learned counsel for the revisionist, Shri Subhash Chandra Pandey, learned counsel for the opposite party no. 2, Sri M.P. Singh, learned AGA for the State and perused the record.
2. This revision has been filed against the judgement and order dated 01.04.2014 passed by Additional Sessions Judge, Court No. 2, Rampur in Criminal Appeal No. 66 of 2013 (Smt. Valajindra Kaur Vs. State of U.P and another) dismissing the appeal and affirming the order of Juvenile Justice Board dated 09.10.2013.
3. Aggrieved by the impugned judgement, this revision has been filed challenging the impugned judgement on the ground that the impugned judgement is against the material evidence on record, arbitrary, illegal and suffers from manifest error of law and is based on conjectures and surmises. The court below has not applied its judicial mind. In absence of the matriculation certificate the date of birth recorded in the school first attended has to be taken into consideration, in which the date of birth was recorded to be 01.02.1995 and the same was proved by principal of concerned school. In the family register also the same date of birth was mentioned and the extract of the family register was proved by the Secretary, Gram Panchayat. Instead of relying on these evidence, Juvenile Justice Board relied on medical report with regards to the age of Mandeep Singh which is contrary to law as medical evidence is not binding and the school admission register, transfer certificate and extract of family register was on record and were proved by the witnesses. Therefore, the revisionist has prayed to set aside the impugned judgement as well as the judgement of Principal Judge, Juvenile Justice Board dated 09.10.2013 in Case Crime No. 1563 of 2011 by which prayer to declare Mandeep Singh juvenile has been turned down.
4. The revisionist is the mother of Mandeep Singh who gave an application before the Juvenile Justice Board that the date of birth of Mandeep Singh is 01.02.1995, and at the time of incident he was aged about 16 years 10 months. The learned counsel for the revisionist has submitted that earlier the Juvenile Justice Board by order dated 20.02.2013, declared Mandeep Singh to be juvenile within the meaning of Juvenile Justice Act on the basis of school record. Against the judgement of the Juvenile Justice Board an appeal was preferred by the complainant side and the same was dismissed on 26.04.2013. Against that order, revision was filed before the High Court and by the order dated 04.07.2013 passed in Criminal Revision No. 1546 of 2013 (Darshan Singh Vs. State of U.P), the High Court set aside the impugned order dated 26.04.2013 and the order dated 20.02.2013 passed by Juvenile Justice Board for taking afresh decision on the juvenility after taking evidence regarding education of Mandeep Singh from class-I to class-V. Opposite party no. 2 was directed to assist the Board in providing information regarding his school first attended. It was further directed that if such information is not provided and information is withheld from the Board, the Board shall be at liberty to take decision on the basis of opinion of Medical Board in accordance with Rule 12(3) of Rules 2007. The present revision pertains to second stage of litigation on that point as after the case was remanded by this court by order dated 04.7.2013, the Juvenile Justice Board, after taking evidence and hearing both the sides, rejected the application of the revisionist declaring the age of Mandeep Singh to be 20 years and 4 months on the basis of medical report after deducting one year from the age determined in medical report. Against this order of the Juvenile Justice Board, an appeal was preferred by the revisionist and the same was dismissed by the impugned judgement dated 01.04.2014.
5. Section 7A of the Juvenile Justice (Care and Protection of Children Act, 2007) provides as follows:-
"7A. Procedure to be followed when claim of juvenility is raised before any court. (1) Whenever a claim of juvenility is raised before any court or a 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 sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect."
Determination of the question of Juvenility
6. Section 2(l3) of the Juvenile Justice (Care and Protection of Children) Act, 2015 which contains almost similar provision to that of the Juvenile Justice (Care and Protection of Children Act, 2007), defines a child in conflict with law "as 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". Section 2(35) defines juvenile as "a child below the age of eighteen years."
7. Section 9(2) makes provision for a claim of juvenility to be raised before any court at any stage, even after final disposal of a case and sets out the procedure which the court is required to adopt, when such claim of juvenility is raised. It provides for an inquiry, taking of evidence as may be necessary (but not affidavit) so as to determine the age of a person and to record a finding whether the person in question is a juvenile or not.
8. The proviso adds that a claim of juvenility may be raised before any court at any stage, even after final disposal of the case. The claim of such a juvenile shall be considered, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
9. Section 94 of the Act provides the procedure to be followed by the courts or the Boards for the purpose of determination of age in every case concerning a child in conflict with law. It provides that the Court or Board shall determine the age by undertaking the process of age determination by seeking evidence by obtaining as follows:-
(i) the date of birth certificate from the school, matriculation or equivalent certificate from the concerned examination Board if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and(ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the committee or the Board;
10. It has been further provided that such age determination shall be completed within 15 days from the date of order of the Board and the age so determined shall be deemed to be true age of the person for the purpose of this Act.
11. Earlier Rule 12 (3) of Rules, 2007 provided similar but slightly different provision from section 94 of the new Act of 2015 so for as it has brought all school certificate under one umbrella under sub-section (1) which provides 'the date of birth certificate from the school, matriculation or equivalent certificate from the concerned examination Board if available;' as the first requirement. Rule 12 (3) reads as follows:
"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 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, 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."
12. In Shah Nawaz vs. State of U.P. (SC), 2011(5) ALJ 580, referring to Raju and Anr. vs. State of Haryana (2010) 3 SCC 235 where the Court had admitted "mark sheet" as one of the proof in determining the age of the accused person, Hari Ram vs. State of Rajasthan & Anr., (2009) 13 SCC 211, Ravinder Singh Gorkhi vs. State of U.P. (2006) 5 SCC 584 where the issue of School Leaving Certificate was involved and the Court took the view that such certificate in order to become evidence of age, it should be shown that it was issued in the ordinary course of business of the school and the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Evidence Act. It was held that the entry relating to date of birth entered in the mark sheet is one of the valid proof and evidence for determination of age of an accused person. Therefore, the matriculation marks-sheet and certificate is a conclusive evidence of age and there remains no further need to seek any other proof of age. Again, in Ashwani Kumar Saxena vs State of MP (2012) 9 SCC 750 and Jodhbir Singh vs State of UP2013(1) SC Cri. R36, it has been held that if matriculation certificate/marks-sheet is available, there is no opportunity for the Board to go for other evidence for the determination of the age of juvenile. Even though, new Act has been enforced, the above view still holds the field as there is hardly any difference in respect of determination of age of juvenile.
13. But having said so, the court has to be sure about the genuineness and authenticity of such certificate/marks-sheet, particularly when there is sufficient material on record to create doubt on such certificate/marks-sheet. In Om Prakesh vs. State of Rajasthan, 2012(77) ACC 654 (SC), the trial court itself could not arrive at a conclusive finding regarding the age of the accused on the basis of school record and therefore, it was held that the opinion of the medical experts based on X-ray and ossification test will have to be given precedence over the shaky evidence based on school records. The Supreme Court remarked that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled for this special protection under the Juvenile Justice Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice. Hence, while the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and like offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority. The benefit of the principle of benevolent legislation attached to 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.
14. The purpose of the above discussion is that the age of juveni1ity can be determined on the basis of high school certificate/marks-sheet or school record if there is no doubt with regards to genuineness and authenticity thereof. When there arises reasonable doubt in respect thereof, the same cannot be relied blindly and the court is empowered under law to ignore the same.
15. The learned counsel for the revisionist has argued that when the school record first attended by Mandeep Singh was on record there was no occasion for the courts below to go for medical report in order to determine the age of Mandeep Singh. In support of this contention the judgement of this Court in Smt. Neha Bee and others Vs. State of U.P, 2011 (74) ACC 139, Parashu Ram Singh Vs. State of U.P, 2013 (83) ACC 392 and judgement in Criminal Revision no. 3919 of 2015 (Farzana Vs. State of U.P) decided on 06.05.2016 and the judgement of the Supreme Court in Ashwani Kumar Saxena Vs. State of M.P, 2012 (79) ACC 748 have been referred. The last case being decided by the Supreme Court, the following observations appears to be material for the purpose of this case:-
"Age determination inquiry", contemplated under Section 7-A of the Act read with 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 form 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.
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) of 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 the sub-rule(3) of the Rule 12. Further, Section 49 of the Juvenile Justice Act also draws a presumption of the age of the juvenility on its determination."
16. As mentioned above, that aforesaid order dated 04.07.2013 passed in Criminal Revision No. 1546 of 2013, this Court clearly laid down that the Juvenile Justice Board shall determine the age of Mandeep Singh after taking evidence from his side about his education from class-I to class-V and it was also expected that from the side of Mandeep Singh necessary information shall be provided regarding the school he has attained such education. Failing to provide the above two informations the Juvenile Justice Board was given liberty to take decision on the basis of report of Medical Board. From the side of revisionist the said information were not provided and whatever information was provided with regards to the education of Mandeep Singh was highly suspicious and contradictory. Moreover, information of voting and extract of voting list also shows that the school record of Mandeep was highly suspicious. Therefore, the Juvenile Justice Board proceeded to determine the age on the basis of medical report.
17. This Court in aforesaid revision made following observations:-
"Admittedly, opposite party no.2 has not passed matriculation examination and, therefore, there is no matriculation or equivalent certificate to show his date of birth. In the absence of matriculation certificate, the date of birth recorded in the school first attended has to be taken into consideration. No documentary or oral evidence was led to show the date of birth recorded in the school first attended. It was the case of the complainant that opposite party no. 2 studied in village school. Even from the affidavit, it is apparent that opposite party no. 2 passed class V examination in the year 2003-04. There was no difficulty in filing the documentary evidence regarding date of birth recorded in the school first attended but the same evidence appears to be deliberately withheld by opposite party no. 2. Even if no evidence was led on behalf of opposite party no. 2 to show his date of birth recorded in the school first attended, it was the duty of the Board to summon the relevant documents from the village school or the school where opposite party no. 2 studied from class I to class V and a decision regarding age of opposite party no. 2 could have been taken on that basis but the Board did not consider it proper to summon any such records or witnesses.
A person cannot be permitted to play hide and seek with the court. He cannot be permitted to claim juvenility on the basis of entries of class VI and withholding the records of class I to class V. According to Rule 12 (3), the entry in the school first attended is relevant and the entries in the has not properly conducted enquiry as envisaged under the provisions of Juvenile Justice Act and matter has to be remanded for a fresh decision. The Sessions Court has also not considered this aspect of the matter."
18. From the perusal of both the judgements, it appears that as directed by this Court vide aforesaid judgement dated 04.07.2013 no evidence regarding education of Mandeep Singh from class-I to class-V was filed before the Juvenile Justice Board. Therefore, both the courts below took a view that the revisionist failed to comply with the order of the High Court. Both the courts have also noted that Allahabad High Court has noted in the aforesaid judgement that Mandeep Singh got admission in class-VI on 05.07.2004 in Guru Nanak Inter College, Bilaspur on the basis of the affidavit of his father but there was no evidence given that he passed the examination of class-V in the year 2003-04, which was necessary to show that said Mandeep Singh got education from class-I to class-V in some school. On the contrary, it was found that leaving certificate which was produced before the Juvenile Justice Board shows that he got admission in U.K.G on 04.07.2001 and he passed class-II on 31.03.2003. Therefore, it was necessary to give educational record of Mandeep Singh showing that he passed the examination of class III, IV, V from some institution, but no such school record was given. The lower courts below found it highly suspicious that when Mandeep Singh passed class-II in year 2003 how he could get admission in class-VI on 05.07.2004 as there is difference of at least three years for getting admission in class-VI. In a natural way, if a person has passed class-II on 31.03.2003 he can get admission in class-VI only after 31.03.2006. On this basis the learned courts below found the date of birth (01.07.1995) shown in the leaving certificate of National Public School, Bilaspur to be highly suspicious particularly when all these points have been elaborately discussed in the aforesaid judgement of the High Court. In the aforesaid order of the High Court, this fact also finds mention that in respect of admission in Guru Nanak Inter College, the affidavit was filed narrating that Mandeep Singh has passed class-V in the year 2003-04 but despite the order of this Court no evidence was led to show in which school Mandeep Singh studied from class-I to class-V nor any such certificate to that effect was filed.
19. In view of the above anomaly and contradictions in school record of Mandeep, the JJ Board, finding no other option and in view of the aforementioned direction of this court, determined the age on the basis of the medical evidence and the order so passed was further affirmed by impugned judgement in appeal. It is pertinent to make a mention that the courts do not reject the claim of juvenility in a routine way unless there exists good cause. I do not find any material irregularity or illegality or jurisdictional error in the impugned order and judgement of the courts below. The revision has got no force and is liable to be dismissed.
20. The revision is therefore dismissed. Stay order if any shall stand vacated.
Order-date-12.09.2019 PS (Hon'ble Pradeep Kumar Srivastava, J.)