Allahabad High Court
Ram Singh vs State Of U.P. & Another on 20 May, 2013
Bench: S.C. Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 50
Case :- CRIMINAL REVISION No. - 1434 of 2013
Petitioner :- Ram Singh
Respondent :- State Of U.P. & Another
Petitioner Counsel :- Ravindra Prakash Srivasta
Respondent Counsel :- Govt. Advocate
Hon'ble S.C. Agarwal,J.
Parcha filed by Shri Vikrant Pandey, Shri R.M. Upadhyaya, Advocates on behalf of complainant is taken on record.
Heard learned counsel for revisionist, learned AGA for the State and learned counsel for complainant and perused the record.
This criminal revision is directed against the order dated 22.4.2013 passed by Addl. Sessions Judge, Court No.1, Basti in Crl. Misc. Case No.1/XII/2013 arising out of Case Crime No.356 of 2011 under Sections 304, 308, 323, 504, 506 IPC., P.S. Lalganj, District Basti whereby the application moved on behalf of revisionist for declaring him to be juvenile was rejected.
Learned counsel for revisionist submitted that the Trial Court has not considered and decided the application under Section 7-A of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'Act') in accordance with law. No proper enquiry was held in accordance with Rule 12 (3) of Juvenile Justice (Care & Protection of Children) Rules, 2007 (in short 'Rules 2007').
It was contended that the incident took place on 9.6.2011and according to the school certificate, the date of birth of the revisionist was 1.9.1994 and therefore, the revisionist was a juvenile on the date of incident. It was contended hat if the Trial Court was not satisfied with the date of birth recorded in the school register, it was open to the learned Addl. Sessions Judge to refer the revisionist to a duly constituted medical Board to ascertain his age on the date of incident.
Learned AGA as well as learned counsel for complainant supported the impugned order and submitted that copy of the scholar register of class-V was filed by the revisionist which was not a reliable document but was forged and fabricated and therefore, the same could not be considered as a basis to determine the juvenility of the revisionist. It is, however, admitted that the revisionist was not subjected to any medical examination to ascertain his age.
Section 7-A of the Act provides as under:-
" Section 7-A (1) 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 enquiry, 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 recognised 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."
It is clear from the aforesaid provision that whenever a claim of juvenilty is raised, before any court, the same is bound to hold an enquiry, takes such evidence as may be necessary (but not an affidavit) so as to determine the age of such person. It is also provided that claim of juvenility may be raised before any court at any stage.
Rule 12 (3) provides as under :
12 (3) Procedure to be followed in determination of Age :-
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), (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 or, 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."
According to Rule 12(3) of the Rules 2007, the age of an accused shall be determined by seeking evidence by obtaining the matriculation or equivalent certificate in the absence thereof, on the basis of date of birth recorded in the school first attended and in the absence thereof, on the basis of birth certificate if given by Corporation or Municipal authority or a Panchayat and in the absence of all three options mentioned above, the medical opinion shall be sought from a duly constituted medical board.
In the instant case, the learned Trial Court recorded evidence regarding the age of the accused and disbelieved the school certificate but the revisionist was not sent for medical examination to determine his age. In the absence of any documentary evidence regarding date of birth of an accused, the Trial Court was bound to seek opinion from the duly constituted medical board regarding age of the accused on the date of incident as nearly as may be possible.
In these circumstances, this Court is of the opinion that no proper enquiry was conducted by learned Addl. Sessions Judge, as prescribed under Section 7-A of the Act and therefore, the matter has to be remanded to the Trial Court to decide the question of juvenility of the revisionist afresh after seeking medical opinion as desired by Rule 12(3) (b) of Rules, 2007.
Revision is allowed. The impugned order dated 22.4.2013 is set aside and learned Addl. Sessions Judge is directed to hold a proper enquiry in accordance with Rule 12(3) of Rules 2007 in the light of observations made above.
Order Date :- 20.5.2013
Pk
