Allahabad High Court
Yunus vs State Of U.P. on 16 June, 2014
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33 / A.F.R.
Case :- CRIMINAL REVISION No. - 1712 of 2014
Revisionist :- Yunus
Opposite Party :- State Of U.P.
Counsel for Revisionist :- I.M. Khan
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Mrs. Vijay Lakshmi,J.
Heard learned counsel for the revisionist on the point of admission and perused the record.
The instant criminal revision has been filed against the order dated 26.5.2014 passed by Addl. Sessions Judge, Court No.1, Saharanpur whereby the criminal appeal No.93 of 2013 (Yunus vs. State), arising out of the order passed by Juvenile Justice Board dated 11.7.2013 refusing to declare the revisionist as juvenile in Case Crime No.351 of 2012 under Section 376 (2)(6) IPC., P.S. Deoband, District Saharanpur, was dismissed.
Learned counsel for the revisionist has assailed the legality of the order impugned on the ground that the lower Appellate Court as well as the learned Trial Court have completely ignored to consider the point that in the school leaving certificate filed by the revisionist, his date of birth is mentioned as 21.2.1996 and the name of his earlier school is also mentioned as Subhan Public School but the courts below did not bother to either enquire from Subhan Public School or summoned any person from the said school. Thus the courts below, acting with material irregularity, have passed the impugned orders.
Learned counsel for the revisionist has further argued that the revisionist is a student and he has no concern with the co-accused Naushad, Mohd. Javed and Ishan who are hardened criminals. On the aforesaid grounds, it has been prayed that the impugned order be set aside.
Per contra, learned AGA has contended that there is no illegality or irregularity in the order impugned. The revisionist has been found involved in the heinous offence of gang rape. In his medical examination, he has been found 22 years of age. There is no merit in the revision and it is liable to be dismissed at the admission stage itself.
After having heard learned counsel from both the sides, I am of the considered view that the instant revision is liable to be dismissed at the admission stage itself for the following reasons:-
The impugned order has been passed in the back-drop of the facts that the revisionist along with four other accused persons was named in the FIR by the complainant alleging gang rape of 13 year old minor sister of the complainant. The police, after investigation, filed charge sheet against all the accused persons, including the revisionist, who took the plea of juvenality and adduce the evidence in support. However, in proof of his juvenality only a school leaving certificate of class 4th was produced by him. The learned Trial Court being dissatisfied with the evidence adduced by the revisionist in proof of the juvenality ordered for his medical examination in which the age of the revisionist was found to be of 22 years.
The learned lower appellate court, while observing that even after giving the benefit of the margin of flexibility of two years to the applicant/revisionist, his age comes to 20 years and as his medical examination was conducted on 3.7.2013 and occurrence was of 10.7.2012 held him above 18 years of age on the date of occurrence. Therefore, the learned lower Appellate Court, while confirming the order of learned Juvenile Justice Board, dismissed the appeal filed by the revisionist.
The relevant legal provision regarding the procedure be followed by the courts while determining the age for the purpose of holding any person of juvenile is provided in Rule 12 (3) of The Juvenile Justice (Care and Protection of Children) Rules, 2007 which is reproduced as under:-
12.(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), (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
The record shows that no matriculation or equivalent certificate,neither any date of birth certificate from the school first attended nor any birth certificate given by Corporation or Municipal Authority or a Panchayat was produced by the revisionist before the Juvenile Justice Board. Hence, the learned Justice juvenile Board while proceeding in accordance with the provision of Rule 12 (3) ordered for medical examination of the revisionist and on the basis of radiological report, refused to hold him a juvenile. The learned lower appellate Court, also, while keeping in view the legal provisions and even after giving the revisionist a benefit of flexibility of two years (instead of one year as provided under Sub-Rule 3 (b) of Rule 12) declined to interfere in the order of Juvenile Justice Board and dismissed the appeal.
The argument advanced by learned counsel for the revisionist that the courts below did not bother to summon records or any person from Subhan Public School is without any force because the burden was on the revisionist to adduce sufficient evidence in support of the plea of juvenality. The courts below were not under obligation to summon the witnesses or to enquire about Subhan Public School. As the revisionist had failed to adduce any reliable evidence in support of his plea of juvenality, the learned Juvenile Justice Board, while exercising its jurisdiction in accordance with the procedure as provided under Rule 12 (3) of Juvenile Justice Rules, 2007 ordered for medical examination of revisionist and on the basis of medical report refused to declare him a juvenile. The learned lower appellate court also did not commit any mistake by confirming the order of Juvenile Justice Board because in spite of giving benefit of two years flexibility in favour of revisionist he was found to be above 18 years of age on the date of occurrence.
For the reasons discussed above, the revision is liable to be dismissed at the admission stage itself and is, hereby, dismissed accordingly.
A certified copy of this order be sent to the Registry for onward communication to the court concerned forthwith.
Order Date :- 16.6.2014
Ps.
