Allahabad High Court
Amit Kumar vs State Of U.P. on 17 April, 2013
Bench: Mushaffey Ahmad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 48
Case :- CRIMINAL REVISION No. - 5506 of 2004
Petitioner :- Amit Kumar
Respondent :- State Of U.P.
Petitioner Counsel :- H.K.Sharma
Respondent Counsel :- Govt. Advocate
Hon'ble Mushaffey Ahmad,J.
Heard Sri H.K. Sharma learned counsel for the revisionist and learned A.G.A. for the State.
The revision has been preferred against the order dated 15.12.2004 passed by the Additional Sessions Judge, Court No. 3, Varanasi on the application of the revisionist seeking declaration that he was Juvenile on the date of incident in S.T. No. 498 of 2004. The learned Judge by the impugned order rejected the application.
Learned counsel for the revisionist has contended that the learned Judge has committed an illegality by relying upon the medical opinion and laying aside the High School certificate giving precise date of birth i.e. 5.7.1987. Learned counsel refers to Rule-12 of 'The Juvenile Justice ( Care and Protection of Children) Rules, 2007' ( hereinafter referred to as the 'Rules of 2007') and emphasizes that matriculation certificate is the first document to be relied on for determination of age.
Learned A.G.A. takes exception to it and endeavors to support the order under challenge.
Section 68 of the Juvenile Justice ( Care and Protection of Children) Act of 2000 ( hereinafter referred to as the 'Act of 2000') provides that the State Government may by notification in the official gazette, make rules to carry out the purposes of this Act. Provided that the Central Government may frame model rules in respect of all or any of the matters with respect to which the State Government may make rules under this section, and where any such model rules have been framed in respect of any such matter, they shall apply to the State until the rules in respect of the matter are made by the State Government and while making any such rules, so far as is practicable, they conform to such model rules. Under the power granted by Section 68 of the Act, the State Government framed rules which are ' The Uttar Pradesh Juvenile Justice ( Care and Protection of Children) Rules, 2004 ( Here in referred to as the U.P. Rules, 2004). The Central Government also framed rules or model rules which are the Rules of 2007') under which the provisions of Rule-12 have been referred to, and which are applicable to the State only where the States have not framed any Rule under the Act. And where the States have framed their Rules, the model Rules will not apply. No doubt, under Rule-12 of the Rules of 2007 the primacy has been given to the matriculation certificate in the process of determining the age of the accused. The other sources cited under the Rules follow and take effect when the matriculation certificate is not available. But in the U.P. Rules, 2004 such primacy has not been mandated. Rules-2004 have simply given the list of certificates to be followed and in this list, birth certificate by a Corporation or a Municipal authority has been placed first, the date of birth certificate from School first attended comes later and still later comes the matriculation or equivalent certificate if available. Rule-22 of the U.P. Rules, 2004 does not exclude the consideration of one certificate over the other. As the U.P. Rules, 2004 have been framed under Section 68 of the Act, they apply to the matters in Uttar Pradesh and in such view of the matter, High School Certificate does not have any primacy if other certificates are available. Rule-22 of the U.P. Rules, 2004 allows discretion to the Court to take into consideration the birth certificate issued form any Corporation or from any municipal authority or certificate from the School first attended or the matriculation certificate. The practical approach will require consistency in the date of birth maintained in the School certificates from the institution first attended upto the school from which matriculation or higher qualification is completed. The date of birth so maintained at different levels of educational progress must be accepted. The certificate from the School first attended may be as much precarious and may require to be proved as genuine as the matriculation certificate obtained after abrupt admission in that class or a class before, and date of birth propelled on an affidavit. Certificate from the school first attended is more reliable with regard to age than the High School or matriculation certificate introducing date of birth on an affidavit of the student himself fancying his own date of birth or of either of the parents who can hardly remember the same at such a late stage. It will not be impertinent to assume that guardian of a minor ward or student of mature understanding is conscious that minimum age would bring in maximum service benefits and therefore tendency to reducing age at every possible occasion must be taken into account in the process of determining the age of the delinquent.
As regards the consideration of medical opinion over and above the school certificate, I hold the approach of the lower court is incorrect. The medical opinion is simply estimation and that estimation is based on physical development dependent on so many factors. The certificate giving date of birth is a definite and precise information about the date of birth and, therefore, the date of birth given in the School certificate and same sustained through out the school career shall prevail over the mere medical estimation. Conversely School Certificate with dubious date of birth cannot have precedence over medical opinion given by a duly constituted board of doctors.
In the matter at hand, the learned Judge has given priority to the medical opinion against the High School certificate without finding entries in the certificate dubious. The order cannot be allowed to stand.
The revision is, therefore, allowed and the impugned order set aside. The matter is remanded back to the lower court for re-deciding the age of the revisionist in the light of U.P. Rules, 2004 after giving due opportunity of hearing to the revisionist and the complainant.
Order Date :- 17.4.2013
n.u.
