Allahabad High Court
Xjuvenile vs State Of U.P. And Another on 8 September, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:157434 RESERVED ON 13.8.2025 DELIVERED ON 8.9.2025 HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL REVISION No. - 3430 of 2025 Xjuvenile .....Revisionist(s) Versus State of U.P. and Another .....Opposite Party(s) Counsel for Revisionist(s) :
Neeraj Pandey, Raj Kumar Sharma Counsel for Opposite Party(s) :
G.A., Pankaj Kumar Tyagi HON'BLE SIDDHARTH, J. .Heard Sri V.P. Srivastava, learned Senior Counsel assisted by Sri Neeraj Pandey and Sri Raj Kumar Sharma, learned counsel for the revisionist; Sri Pankaj Kumar Tyagi, learned counsel for opposite party no.2; learned AGA for the State and perused the material placed on record.
2.This revision has been filed against the judgement and order dated 19.12.2024 passed by the Additional Sessions Judge/Special Judge, POCSO Act, Muzaffarnagar in criminal appeal No. 43 of 2024 as well as against the judgement and order dated 15.4.2024 passed by Juvenile Justice Board, Muzaffarnagar in case crime no. 443 of 2015 under sections 147,148,149,504,302,120-B I.P.C. P.S. Civil Lines District Muzaffarnagr.
3.The revisionist preferred an application dated 25.2.2015 before the J.J. Board Muzaffar Nagar praying that on the date of incident dated 16.2.2015 he was aged about 16 years, 10 months and 10 days and was therefore juvenile. In support of his application transfer certificate of class VII issued by Bal Vidya Mandir, Juinor High School, Ghaziabad was filed.
4.J.J Board, Muzaffar Nagar found educational certificate, S.R. register and transfer certificate of revisionist to be doubtful and directed to conduct his ossification test by the order dated 17.3.2018. In the ossification test conducted on 27.3.2018 age of the revisionist was found to be about 22 years. Radiologist appeared before the J.J. Board and proved that age of the revisionist at the time of ossification test was above 21 years below 25 days.The Deputy C.M.O. proved that age of the revisionist as per his report is between 21-25 years .He admitted that his age can be 22-23-24-25 years. The J.J. Board, Muzaffar Nagar relied upon Rule 12(3)of Juvenile justice (Care and Protection of Children) Rules, 2007 and gave one year's margin to the revisionist on lower side and thereafter held that on the date of incident dated 16.2.2015 revisionist must have been of 18 years, 10 months and 20 days and declared him adult and triable as such.
5.The appellate court confirmed the order passed by J.J. Board,Muzaffarnagar and hence this revision has been preferred before this court.
6.Learned Senior Counsel for the revisionist relied upon the Judgement of the Apex Court in case of Pawan Kumar Vs. State of U.P. (2023), 15 S.C.R 261 and has argued that bone ossification test is not exact and such examination leaves margin of one years range as prescribed irrespective of whether ossification test of multiple joints is conducted and it was held by the Apex Court that standard is to determine degree probability and not of proof beyond doubt. He has further submitted that where two views are possible a liberal approach should be adopted and view in favour of the accused should be taken.
7.Learned counsel for the opposite party no.2 has vehemently opposed the submissions made by learned Senior Counsel for the appellant. He has submitted that as per procedure provided under Rule 12 only in the absence of matriculation and equivalent certificate date of birth of school first attended and birth certificate given by corporation or Municipal authority or Panchayat, medical opinion sought from medical board is relevant for consideration by the J.J. Board on the question of juvenility. In the present case except transfer certificate of class VII , nothing was produced by the revisionist before the Board,therefore question of liberal consideration of ossification test report is not relevant for consideration in the present case .
8.The order passed by the Juvenile Justice Board, Muzaffar Nagar dated 15.04.2025 is according to law as the same has been decided according to the provision of Rule-12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, and on the basis of the report of Medical Board which was duly constituted as per provision of law.In the present case the delinquent along with other co-accused shoot down the deceased in court room situated in court promises and the delinquent was arrested on the spot with arms. Earlier also the delinquent had shoot dead another person in the court premises. in respect of which FIR no 446 of 2013 u/s 302 120 IPC was registered at the Civil Lines police station.
9.Learned A.G.A. has also opposed the submissions of learned Senior Counsel for the revisionist.
10.After considering the rival contention this court finds that the First Information Report has been lodged against revisionist as Case Crime No.443 of 2015, under Sections-147, 148,149, 504, 506, 302, 120B L.P.C.., Police Station- Civil Lines, District-Muzaffar Nagar. The date of incident is of dated 16.02.2015. So, the provision of the Juvenile Justice (Care and Protection of Children) Act, 2000 as well as amended Act, 2006 along with the Juvenile Justice (Care and Protection of Children) Rules, 2007 would be applicable in the aforesaid matter as the Juvenile Justice (Care and Protection of Children) Act, 2015 came with effect from 15.01.2016, so at the time of incident, the aforesaid Act was not in existence. In the Juvenile Justice (Care and Protection of Children) Rules, 2007, the provision of Rule-12 provides the procedure to be followed for determination of the age. The provision of Rule-12 of the aforesaid Rules, 2007 is being quoted below;-
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, 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 appearances 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), or (ii) 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 the, 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) 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 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, terms of Section 7-A, 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 off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) of the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.
11. By the Application dated 25.02.2015, the guardian of the revisionist claimed him as minor on the date of the incident as he was 16 years, 10 months and 10 days' old and in support of the aforesaid application, photocopy of the Transfer Certificate of passing Class-7th of Bal Vidya Mandir Junior High School, Sangam Vihar, Loni, Ghaziabad was submitted and according to that Transfer Certificate, the date of birth of the accused is 06.04.1998 and requested to declare the delinquent a juvenile. As per Rule-12(3)(a)) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, the matriculation or equivalent certificates is required to be produced as evidence and in absence of which, the date of birth certificate from the school (other than play school), but first attended school is required. In this matter, the revisionist produced the Transfer Certificate of Class-7th, but there is no evidence led regarding the study done by him from Class-1st to Class-5th, According to the guardian of the revisionist, he studied in the aforesaid school in Class-6th and Class-7th, prior to the aforesaid school, in which he has been studied has not been disclosed by the revisionist, so the aforesaid certificate is not be considered as first attended school certificate, so the same has been disbelieved by the Juvenile Justice Board by the order dated 17.03.2018 and directed the District Jail Superintendent, Varanasi and Chief Medical Officer, Varanasi to get the ossification test of revisionist conducted.
12.The procedure of inquiry is laid down in the Section-7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000, is as follows;-
7-A. 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 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 recognized 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 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.
13. The Order dated 17.03.2018 passed by the Juvenile Justice Board Muzaffar Nagar was never challenged by the revisionist before any competent court, and order dated 17.03.2018 was passed according to provision of the Act. Prior to ignoring the document of Class-7th, which has been produced by the delinquent, the Juvenile Justice Board conducted the inquiry as there was doubt regarding the genuineness of the document, which was produced by the delinquent, so to find out the correctness of the date of birth. The Juvenile Justice Board conducted an inquiry for determination of the age of the accused as permissible and laid down by the Apex Court in the case of Abuzar Hossain vs, State of West Bengal, 2012 (10) SSC 489 as well as the law laid down by the Apex Court in case of Parag Bhati Vs. State of U.P., 2016 (12) SSC 744. and Sanjeev kumar vs. State of U.P.2019 Vol (12) SSC 370. In the case of Parag Bhati, the Hon'ble Apex Court after considering the law laid down by the Hon'ble Apex Court in the case of Ashwani Kumar Saxena vs. State of Madhya Pradesh, 2012 (9) SSC 750 settled the position of law and laid down that the inquiry for determination of the age of the accused is permissible as laid down by the Hon'ble Apex Court in case of Abuzar Hossain, so in this matter also, the inquiry regarding the date of birth of the delinquent was done by the Juvenile Justice Board.
14. At the time of inquiry, the specific query was made by the Board from the mother of the delinquent regarding his qualification from Class-1 to Class-5, but the same was not replied by his mother, which clearly shows that the document of the aforesaid school was not considered as certificate of first attended school. Secondly, the entry of the date of birth in the record of the school of the Class-6th was found to be made on the basis of the affidavit of mother of the sister-in-law of the delinquent's mother (Devrani Ki Maa). Hence the date of birth, which was mentioned by the mother of the sister-in-law of the delinquent's mother was not considered as an accurate and genuine, because only the parents is suppressed to know the accurate and exact date of birth of their child, but in this case, the admission was done on the basis of the affidavit of the mother of the sister-in-law (Devrani Ki Maa) and the same affidavit was also not produced by Abhishek Tyagi, Assistant Teacher, who appeared before the Court as Incharge of the school for proving the document. So as per the law laid down by the Apex Court in Sanjeev Kumar Gupta vs. State of U.P. 2019 (12) SCC 370 such type of Affidavits can not be considered as genuine document. As the revisionist has not submitted any document according to the provision of Rule-12(3)(a) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, so according to Rule-12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007,only in the absence of either (i) (ii) of Clause-(a), the medical opinion will be sought from duly constituted medical board which was sought by order dated 17.03.2018. In compliance of the order dated 17.03.2018 of the Juvenile Justice Board, Medical Board was constituted by the Chief Medical Officer. The Medical Board comprised C.M.O., Dr. Vijay Kumar (Medical Officer), Dr. Manan Yadav (Deputy Chief Medical Officer) and Dr. Kamlakar (Radiologist) which submitted its Report on 17.03.2018. As per the report, the delinquent was found to be aged approximately 22 years. In the X-ray report,Radiologist has shown estimated age of the delinquent to be more than 21 and less than 25 years, so the Juvenile Justice Board determined the age of the delinquent appropriately as 18 years, 10 months and 20 days on the date of incident by its order dated 22.11.2022. Hence revisionist was not accepted as Juvenile as he was found to be more than 18 years of age.
15. The aforesaid order was challenged by the revisionist before the Appellate Court by way of filing the Appeal on the ground that the Juvenile Justice Board at the time of considering the application did not gave benefit of margin of one year to the revisionist. The Appeal of the revisionist was remanded back by the order of the Additional District and Sessions Judge, Court No.7, Muzaffar Nagar by order dated 22.12.2023 to the Juvenile Justice Board with the direction to consider the case of the revisionist again as per Rule-12(b) of the aforesaid Rules. After the remand of the aforesaid appeal, the Juvenile Justice Board by its order dated 15.04.2024, decided the matter and found that the provision of Rule-12(3)(b) is not a mandatory. It is the discretion of the Board to consider as per other evidence. The educational document submitted by the delinquent was not according to the provision of the Rules and the family register etc., was not available. Therefore, there was no other option available to the Juvenile Justice Board except accepting the report of the Medical Board. Aforesaid matter was decided by the Juvenile Justice Board after considering the law laid down by the Apex Court in the case of Parag Bhati vs. State of U.P.(Supra) as well as the law laid down in the case of Om Prakash vs. State of Rajasthan and Rishi Pal Singh Solanki vs. State of U.P.(Supra), in which it was clearly stated that the inquiry regarding the date of birth must be made according to facts of the case. There is no strict law as regarding lowering the age of one year from the medical age, as per the law laid by Apex court in Bachahan Devi vs Nagar Nigam Gorakhpur 2008 reported in vol 12 SCC 372 which held that "it is well settled that use of word "'may" in a statutory provision would not show that the provision is directory in nature" so the revisionist was rightly declared as major by the Juvenile Justice Board.
16. In case of Parag Bhati (Juvenile) through legal guardian/mother - Smt.Rani Bharti vs. State of Utar Pradesh and Others, reported in 2016 (12) SSC 744, the Hon'ble Apex Court specifically laid down that if there is any doubt and contradictory stands are being taken by the accused, which raises the doubt on the correctness of the date of birth, then an inquiry for determination of the age of the accused is permissible. In the aforesaid matter also, the transfer certificate of Class-7th, which has been produced by the revisionist also, does not shows any proof regarding the entry on the basis of which, the aforesaid date of birth has been entered and no proof has been given. From where the revisionist passed Class-1st to Class-5th, and on what basis the entry of the date in the school has been done was also not proved. The affidavit produced by the mother of the sister-in-law of the delinquent's mother (Devrani Ki Maa) was also not been produced before the Court, so as per the law laid down by the Hon'ble Apex Court in case of Sanjeev Kumar Gupta vs. State of U.P., 2019 (12) SSC 370,where it was specifically laid down by the Hon'ble Apex Court that the entry in the matriculation certificate on the basis of the affidavit, which has not been produced before the Court is not be considered as relevant for the determination of the age of accused.
17.Apex Court in the case of Pawan Kumar(Supra) has held in paragraph 30 & 31 that radiological test is not exact science and there is margin of two years on either side in such determination as follows:
"30. Further, it must also be kept in mind that the medical opinion based on Bone Ossification Test, is not entirely accurate. This Court in the case of Vinod Katara v. State of U.P. 2022 SCC OnLine SC 1204 has held the following:
60. The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above, the individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. This Court has observed in Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 : (2010) 2 SCC (Cri) 1194, and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223 : (2009) 3 SCC (Cri) 796, that the ossification test is not conclusive for age determination because it does not reveal the exact age of the person, but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. The courts in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination. It is trite that the standard of proof for the determination of age is the degree of probability and not proof beyond reasonable doubt."
"31. In a case of juvenility where two views are possible, this Court has held that a liberal approach should be undertaken. This position was laid down by this Court in the case of Arnit Das v. State of Bihar (2000) 5 SCC 488 where it was held that: ?19???. (ii) a hyper technical 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; and? This proposition of taking a liberal view and about extending the benefit of juvenility where two views are available has been reiterated by this Court in numerous subsequent decisions such as Mukarrab and Others v. State of Uttar Pradesh (2017) 2 SCC 210, Ashwani Kumar Saxena v. State of Madhya Pradesh (2012) 9 SCC 7503 as well as Rishipal Singh Solanki 3 Para 13 v. State of Uttar Pradesh (2022) 8 SCC 602 which concluded as follows in para 33.8: 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences."
18.However the Apex Court has cautioned the court in extending special protection to the accused under J.J. Act in heinous offence in the case of Parag Bhati (Supra), in paragraph 26, and 27, as follows:
"26) It is no doubt true 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 to the special protection under the JJ 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."
"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." 19. The revisionist is accused in a case of dare devil murder in court compound. Hence he is not entitled to benefit of the judgement of Apex Court Pawan Kumar(Supra).
20.In view of the above, the impugned orders are in accordance with law and are confirmed.
21.The revision is dismissed.
22. Office is directed to return the lower court record to the trial court within one week.
(Siddharth,J.) September 8, 2025 Atul kr. sri.