Allahabad High Court
Monu Tyagi vs State Of U.P. on 4 May, 2015
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 31
Case :- CRIMINAL REVISION No. - 5894 of 2006
Revisionist :- Monu Tyagi
Opposite Party :- State Of U.P.
Counsel for Revisionist :- Ashok Kumar Rai,Ravindra Nath Rai
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Mrs. Vijay Lakshmi,J.
This revision has been preferred challenging the legality and correctness of the order dated 6.9.2006 passed by the Additional Sessions Judge (F.T.C.) Court No. 19, Bulandshahar, in S.T. No. 886 of 2004, State Vs. Guddu Tyagi and others, whereby the learned Additional Sessions Judge has declined to hold the revisionst/ applicant Monu Tyagi a juvenile.
I have heard Sri R. N. Rai, learned counsel for the revisionist, learned AGA and perused the record.
An application was filed by the applicant/ revisionist in S.T. No. 886 of 2004, State Vs. Guddu Tyagi and others, with the prayer to declare him a juvenile and to separate his trial from the rest of the accused, who were major. Along with the application the revisionist/ applicant filed his High School Certificate to show that his date of birth, according to High School Certificate was 1.7.1989 and the date of the occurrence being 31.5.2004, he was a juvenile on the date of the occurrence. However, the learned court below did not rely on the High School Certificate and refused to hold him a juvenile expressing that generally the people, while getting their child admitted in the school reduce actual date of birth so that the period of their service be extended. As a result, the court below ordered for medical examination. On medical examination the age of the applicant/ revisionist was found to be of 22 years, hence the court below, relying on the medical report, rejected his prayer to declare him a juvenile and to separate his trial from the rest of the accused persons.
Learned counsel for the revisionist has vehemently argued that the procedure adopted and the findings arrived at by court below is erroneous and against the statutory provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the rules framed under it for the determination of the age of a juvenile.
The provisions relevant for deciding this controversy are Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Sub Rule 3 of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, which are quoted below:
"Section 7A of Juvenile Justice (Care and Protection of Children) Act, 2000:- 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 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.
(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."
"Rule 12 of of the Juvenile Justice (Care and Protection of Children) Rules, 2007:- Procedure to be followed in determination of Age.― (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."
Thus the legal provisions clearly show that if matriculation or equivalent certificates like High School Certificate is available then preference will be given to that certificate and in absence thereof the age is to be determined on the basis of birth certificate from the school first attended. If both the above documents are unavailable, the age will be determined on the basis of birth certificate given by Municipal Authority or Panchayat and only when none of the aforesaid documents are available, the Court or the Board may resort to medical opinion.
There is no doubt that often at the time of school admission, people mention the child's age after reducing some years, so as to avail the benefit of extra term of service, even after crossing the actual age of retirement, but when there is a clear legal provision placing the High School Certificate on 1st number in order of preference and the medical opinion on the last, no Court is authorised to read between the lines and to give preference to medical opinion over High School certificate.
The learned lower court without considering this legal aspect and the provisions of the Juvenile Justice (Care and Protection of Children) Rules, 2007 has passed the impugned order, which is liable to be set aside and the revision deserves to be allowed.
Accordingly, the impugned order dated 6.9.2006 is set aside and the revision is allowed.
Let a copy of this order be sent to the court concerned for compliance, in case the concerned Sessions Trial is still pending.
Order Date :- 4.5.2015
Pcl
