Allahabad High Court
Jagdav vs State Of U.P. And Anr. on 9 May, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 16 Case :- CRIMINAL REVISION No. - 1392 of 2019 Revisionist :- Jagdav Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Kailash Nath Mishra,Rahul Mishra Counsel for Opposite Party :- Govt. Advocate,Vivek Kumar Srivastava Hon'ble Brij Raj Singh,J.
Heard Sri K. N. Mishra, learned counsel for the revisionist, Sri Vivek Kumar Srivastava, learned counsel for the respondent no.2 and learned A.G.A. for the State.
This criminal revision under Section 102 of Juvenile Justice (Care & Protection of Children) Act 2015 has been filed against the judgement and order dated 13.09.2019 passed by VIIth Additional Sessions Judge, Ghonda in Criminal Appeal No. 32 of 2018 (Rajesh Kumar Vs. State & Another) whereby the order dated 01.08.2018 passed by the Juvenile Justice Board, Ghonda set aside and revisionist has been declared major.
The issue in the present controversy is involving age determination of the child in conflict. The revisionist submitted before the Juvenile Justice Board that he passed High School in the year, 2010 as regular student and as per mark-sheet his date of birth is 02.02.1994. He submitted that he was juvenile at the time of the date of occurrence. He filed the copy of the mark-sheet.
The opposite party no.2 also filed objection and he submitted the photocopy of the document of class 1st where he attended the school and also filed the voter list and it is mentioned that at the relevant time the date of birth of the child in conflict was 10.04.1991 and as per document of the Panchayat, the age of the revisionist was 23 years. Further, it has been submitted that in the family register his date of birth was recorded as of the year 1985 and in one case regular Suit No. 574 of 2010, the age of the revisionist was recorded 22 years.
Statement of CW1 Nisha Pandey, Principal Bhagwati Prasad Smarak, Balika Ucchtar Madhyamik Vidyalaya, Pipara Choubey, PS Kharagpur, District Ghonda, CW2 Gudda Mishra, Incharge headmistress, Primary School, Pipara Chaubey-I, Rupaideeh, District Ghonda and CPW2 Krishan Kumar Mohan, Gram Panchayat Adhikari, Rupaideeh, Block Rupaideeh, District Ghonda were called and their statements were recorded.
It is further relevant to mention that earlier the revisionist was also directed for examination before Medical Board. The Medical report was forwarded on 02.08.2017 by Medical Board and it was opined by the Medical Board that age of the child in conflict was 23 years. The complainant had objected against the medical report which was rejected by the Board on 01.11.2017. The Board concluded that on the date of occurrence the age of the child in conflict was 17 years, 6 months, 16 days and the certificate of high school board has been considered for the determination of the age and as per certificate, the date of birth recorded in high school was 02.02.1994 i.e. on the date of occurrence the age of the child in conflict was 17 years, 16 days. After recording the satisfaction, the order was passed on 01.08.2018 by the Board and the age of the child have been declared 17 years, 16 days i.e. juvenile.
Against the order dated 01.08.2018, the opposite party no. 2 preferred revision which was decided on 13.09.2019 and as per decision, the order passed by the Board has been canceled and child in conflict has been declared major by the impugned order.
The appellate court has recorded finding that the document of class 1st where the child attended the school was submitted in which the date of birth of the child was 10.04.1991. The appellate Court has taken into consideration the other documents i.e. document of the Panchayat as well as voter list and appellate Court has recorded finding that since there is doubt in the date of birth of the revisionist in the certificate of class 1st where he attended the school and certificate of 10th class, therefore, after looking into the documents, it was recorded that child in conflict was not less than 18 years on the date of occurrence.
Counsel for the revisionist has submitted that as per Sub Rule 3 of Rule 12, the age determination should be done according to the scheme provided in rule. As per Rule 12 (3) (a) (i), the matriculation or equivalent certificate, if available will have to be seen. In absence thereof the second exercises is to be done i.e. the school attended in first class and third one is to be seen that date of birth issued by Corporation or Municipal Authority or Panchayat. Learned counsel for the revisionist has submitted that revisionist was able to prove his document and there is no forgery. So far as, High school certificate is concerned, once it is a genuine document and proved by the headmistress then the age will be determined as per certificate of high school. He submitted that order passed by the Board is justified and there is no need for interference as has been done by the appellate Court. Counsel for the revisionist has relied on the judgement passed by the Co-ordinate Bench of this Court in Criminal Revision No. 1472 of 2014 (Valajindra Kaur Vs. State of U.P. and Another) dated 12.09.2019.
Counsel for the opposite party no.2 has submitted that since there is doubt between two certificates then other documents of Panchayat as well as the document of a Court proceeding could have seen by the Board which was not done, and the order passed by the Board was not in accordance with law that is why the appellate Court exercised its power and set aside the order of the Board.
He has further submitted that date of birth recorded in the first class school has not been doubted by the revisionist, therefore, it should be presumed that the date of birth recorded in the class 1st is correct. He has relied upon the judgement of Apex Court in the Case of Ram Vijay Singh Vs. State of Uttar Pradesh; 2021 (3) ADJ 490.
The rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 (Herein-after referred as "Rule 2007") is relevant to be seen in the present controversy.
"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;"
As per Rule 12 (3) (a) (i) the Matriculation or equivalent is the document which to be seen by the Board firstly and the revisionist was able to discharge his duty by proving that certificate and there is no finding recorded by the Court below that such certificate was forged or fabricated; rather it is proved document and on the basis of such document, the date of birth of the revisionist is 02.02.1994. The law is settled that act or rule should be read in the letter and spirit as provided and nothing can be substituted.
The argument of counsel for the opposite party no.2 has no legs wherein he has argued that there is conflict between the date of birth mentioned in class 1st and date of birth of high school. It is not proper to consider the date of birth of high school and other relevant document should be considered.
Once the rule has been inacted then procedure to be followed in letter and spirit. The Board has summoned the headmistress of the school who had proved the high school certificate and date of birth, there is no option left before the Board to take other opinion.
Argument has been advanced by the counsel for the revisionist that other documents i.e. document of gram panchayat, and the document of Civil Court proceedings should be considered because in these documents the date of birth of the revisionist indicates that he was major. This argument has also no force because once rule 12 (3) (a) (i) in existence then there is no other procedure or other document which can be looked into by the Board while determining the age. The said rule will prevail and the age of determination done in accordance with Rule 12 (3) (a) (i) is legal, sustainable and there is no illegality.
The finding recorded by the appellate Court is against the Rule and against the record also because he has taken consideration of the irrelevant documents which are not liable to be considered in view of Section 12 (3) (a) (i). The order passed by the appellate Court dated 13.09.2019 is set aside.
Revision is allowed.
No order as to costs.
Order Date :- 9.5.2022 A.K.T.