Jai Kumar vs State Of U.P. And Anr.
2015 Latest Caselaw 770 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 

 
Criminal Revision No.3693 of 2013
 

 
Jai Kumar ................................................Revisionist
 
Versus 
 
State of U.P. and another .................................Opposite Parties.
 

 
Hon'ble Arvind Kumar Mishra I, J.

I have heard the respective submissions of both the sides and perused the record.

By way of instant Criminal Revision order impugned dated 10.12.2013 passed by Additional Sessions Judge, court no.4, Bulandshahr in S.T. No.546 of 2011 (State Vs. Jai Kumar) has been challenged whereby the learned Additional Sessions Judge has rejected application 5-B moved on behalf of the revisionist for declaring him juvenile.

Brief sketch of the facts relevant for disposal of this revision trickles down to the extent that one criminal revision was previously preferred before this Court numbered as 4405 of 2011, Om Prakash Vs. State, wherein also the matter of juvenility was under consideration pertaining to order dated 10.8.2011 passed by the Additional Sessions Judge, court no.9, Bulandshahr in S.T. No.546 of 2011, State Vs. Jai Kumar, under Sections 302, 504, 506 IPC arising out of case crime no.222 of 2010, police station Shikarpur, S.T. No.547 of 2011, State Vs. Jai Kumar, under Section 25/27 Arms Act arising out of Case Crime No.61 of 2011. Aforesaid revision was preferred before this Court under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000, basically against order dated 10.8.2011 passed in S.T. No.546 of 2011 whereby the present revisionist was declared juvenile, which juvenility order was under challenge. Thereafter on consideration of the entire matter, and the law applicable in the case this Court vide order dated 4.7.2013 categorically observed that the inquiry conducted in the matter of determination of juvenility is wanting substantially in proper detail and no proper inquiry has been conducted by the trial court, in respect of juvenility of the present revisionist and the matter was consequently remanded for consideration afresh and the impugned order declaring the revisionist juvenile dated 10.8.2011 passed by Additional Sessions Judge, court no.9, Bulandshahr in S.T. No.546 of 2011 and 547 of 2011 was set aside.

Cutting short the matter and coming to the point it may be observed that pursuant to the aforesaid earlier order (04.07.2013) passed in aforesaid criminal revision no.4505 of 2014, learned Additional Sessions Judge considered the matter afresh on its merit. He took note of the documentary as well as oral evidence placed on record. The application 5-B as moved originally by the present revisionist was considered on merit. Learned Additional Sessions Judge took note of oral testimony of A.P.W.-1 Anil Kumar, Principal Arya Shiksha Niketan School Paharpur Haveli and A.P. W-2 Sukhvir Singh, Principal Prathmik Pathshala Jamalpur. Apart from the document that were filed on record by both the side, the most relevant document that was produced for perusal before learned trial court was the mark-sheet of High School examination of the year 2007, which was marked, Exhibit Kha-3 on record. The learned lower court basically took into consideration the relevant date of birth of the revisionist as 12.4.1991 in place of the contended date of birth 12.4.1993 on ground that the earlier (12.4.1991) date of birth was recorded for class-1 to class V. The reasoning given for adopting the previous date of birth 12.4.1991 was confined to the effect that under what circumstances was the date of birth so appearing from class-1 to class V was changed suddenly to 12.4.1993. In the opinion of learned lower court want of reasonable explanation regarding sudden change in date of birth creates doubt regarding genuineness of date of birth (12.4.1993) shown in High School mark-sheet. How the date of birth 12.4.1991 was converted to one 12.4.1993 remained unresolved mystery in the eye of learned trial court and that was the reason for discarding the claim of the revisionist that he is a juvenile and his date of birth is 12.4.1993. In this context, learned trial court also weighed the effect and impact of relevant sections of Juvenile Justice (Care and Protection of Children) Act, 2000 and Rules 2007 and rejected application 5-B vide order impugned dated 10.12.2013..

Feeling aggrieved by aforesaid impugned order the present revision has been preferred before this Court by the revisionist.

Before adverting to any finding on the claim so preferred by the revisionist, it would be appropriate to take note of the relevant Sections in regard to determination of juvenility and the relevant Rule. In this regard Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 is extracted herein below;

"7A. 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."

The aforesaid rule contemplates necessary inquiry to be conducted in a claim of juvenility when raised before any court. It further elaborates the consequences if a person is discovered to be a juvenile after such inquiry. Importantly, a reasonable inquiry will be conducted for determination of juvenility and prescribed procedure is to be followed, though summary in nature, but the guidelines are very much detailed under Rule-12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, which is extracted herein 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 appearance 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), (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 most relevant portion of the aforesaid Rule-12 is contained under sub-Rule-3 (a) (i) (ii) (iii) and (b). This sub Section virtually predicates the hierarchy to be followed by the court/Board, as the case may be, and to be adhered to in determination of the age of juvenile.

Obviously, the language contained under aforesaid Rule (Rule-12) is not directory but mandatory, meaning thereby that in the presence of the higher option the lower option loses significance and the same will be discarded and will never form part of consideration while deciding the matter of juvenility. The aforesaid principle has been settled in a catena of cases pronounced by the Hon'ble Apex Court as well as by this Court.

It has been vehemently contended by the Sri A.B.L. Gaur, learned Senior counsel that in this case the learned trial Judge failed to appreciate the applicability of Rule-12 and particularly application of provisions of Sub Section-3 of Rule 12, which stipulate innocuously the various preferential ladder to be adhered to in the given order of hierarchy for arriving at actual and real age of a juvenile. The learned lower court failed to appreciate that in this case High School Mark-Sheet/Certificate of the year 2007 was very much on record, yet the learned trial Judge without heeding to the same under some misconception and under some mis-impression clung to the second option as elaborated under Sub Rule-3 of Rule 12. It was obligatory on his part to have given due weightage to the date of birth given in the High School Certificate/Mark-Sheet of the year 2007 first and in case that was sufficient then there was no occasion for him to travel beyond that documentary proof to another option for taking into consideration some other date of birth recorded for class-Ist to class V in the school whereas, the option so exercised was also illusive of reality for the reason that the date of birth 12.4.1991 was the date of birth simplicitor and was not supported by any date of birth certificate as required under Rule, therefore, the inquiry so conducted and the option so adhered to was not based on material on record but it was very much against the material on record. In support of his contention learned counsel has placed reliance on the case of Ashwani Kumar Saxena Versus State of U.P., 2012 (79) ACC 748. A Citation of Hon'ble Apex Court, wherein also the Hon'ble Apex Court has taken note of number of cases and has dealt elaborately with Section 7-A of Juvenile Justice Act and Rule-12 of the Juvenile Justice Rules. Learned counsel further strengthen his argument by citing another case 2013(83) ACC 136 Jarnail Singh Versus State of Haryana and has submitted that the aforesaid case of Ashwani Kumar (supra) was affirmed in this case also. Apart from above learned counsel also placed reliance on the case of Jodhbir Singh Versus Stare of Punjab, 2012 (suppl.) ACC 827 and submitted that in this case also the aforesaid case of Ashwani Kumar (supra) was duly approved by Hon'ble Apex Court.

Per contra, learned counsel for the private respondent submitted that the inquiry envisaged under the Juvenile Justice (Care and Protection of Children) Act, 2000 was properly conducted and all the relevant material was duly considered and given proper weightage by the learned trial Judge. The learned trial Judge has rightly took into account the correct date of birth 12.4.1991 instead of 12.4.1993 on ground that it was the date of birth mentioned first from class-1 to class-V attendant by the revisionist and there is no explanation as to how and why the aforesaid date of birth was suddenly changed to 12.4.1993 in class-6th, therefore, the date of birth 12.4.1993 cannot be said to be the correct date of birth of the revisionist. If the disputed date of birth on inquiry is found to be in-correct then the same cannot be considered to be so merely because it has been described in High School certificate.

I have also considered the above submissions and perused order impugned dated 10.12.2013. On careful consideration and analysis of the various facts it emerges out that the learned lower court was basically impressed by the statement of APW-2 Sukhvir Singh, who is Principal of Prathmik Pathshala, Jamlapur. It was stated by A.P.W.-2 Sukhvir Singh that the revisionist was admitted to his school on 11.1.2002 in class -V and his name finds reference at serial number 1525 of the scholar register. In his cross-examination, he has stated that he has come along with original register, wherein serial number 1267 shows name of Jai Singh son of Indra Pal with date of birth 12.4.1991 and again at serial number 1278 name Jai Kumar is followed by date of birth 12.4.1991, whereas again at serial no.1525 the date of birth shown is 12.4.1993. In this view of the matter, learned trial Judge reasoned as to how and why the aforesaid date of birth 12.4.1991 suddenly changed to 12.4.1993, whereas, the aforesaid witness in his cross-examination has accepted that the date of birth, which is written during course of admission in class-Ist is deemed to be correct date of birth. Therefore, in view of aforesaid conflicting dates of birth as appearing on the same scholar register the learned trial court was of the view that nobody can tell about the change of date of birth from 12.4.1991 to 12.4.1993 as it actually appears at serial number 1525 of the register, although the aforesaid witness deposed that the same fact can be explained only by the former Principal of the school. The order impugned takes serious note of this difference in two dates of birth.

On analogy of contention so raised and on careful scrutiny of the material placed on record, it is reflected that some record in form of scholar's register was taken into consideration while assessing age of the juvenile pertaining to class-1 to class 5th, which infact, disclosed date of birth of the revisionist as 12.4.1991, whereas the date of birth shown for class-6th onward upto High School was noted and described as 12.4.1993. In this view of the matter, learned trial court was misguided by fact that there is no reasonable explanation regarding sudden change in aforesaid date of birth. The learned trial Judge under impression of such eccentric reasoning overlooked the essence of mandate as contained under Sub-Rule-3 of Rule-12 of Juvenile Justice (Care and Protection of Children) Rule 2007 and recorded erroneous finding regarding correct date of birth of juvenile.

Had the trial Judge stuck to the preferential options given in aforesaid sub Section 3 of Rule-12 of the Juvenile Rules 2007, he would not have committed this factual and legal error while posing query about sudden change in date of birth.

Assuming it to be, that the date of birth 12.4.1991 so recorded at the time of admission in class-Ist of the revisionist in the relevant school register is taken to be correct and to be acted upon as such, even then the mentioned date of birth 12.4.1991 will not ipso facto confer legality on such date of birth in the absence of the supporting date of birth certificate. In this case the date of birth certificate of the school first attended is wanting, then whatsoever be the date of birth referred in class-Ist admission, the same will bear no fruitful legal consequence and will be insignificant for determination of actual age of juvenile. Reverting back to the legal position, it may be consistently observed that in the presence of matriculation or equivalent certificate as is the case in hand the learned trial Judge was not justified in jumping over to the second preferential option in the presence of first option for determination of age of juvenile. The trial Judge failed to take note of the actual and worthy inquiry as envisaged under Juvenile Justice Rules, 2007 at this particular point of time, when the High School Certificate/mark-sheet describing date of birth as 12.4.1993 was already available on record for perusal. The trial Judge could have, at the most, examined the very authenticity and veracity of the High School certificate/mark-sheet so produced. He could not have travelled any farther than that. Because the preferential ladders/options so provided under Sub Section-3 of Rule 12 categorized preferential options to be adhered to while determining the actual age of juvenile, which means in the presence of the higher option the lower option goes out into oblivion. Here, learned trial Judge has committed mistake in by-passing the date of birth as given in the High School certificate 2007, which is 12.4.1993. There was no occasion for the trial Judge to have relied upon the date of birth 12.4.1991 because that date of birth was not supported with any birth certificate as envisaged under Rule-12. In this view of the matter, para number 33, 34 and 35 of Ashwani Kumar (supra) are quite relevant. All the aforesaid paragraphs are extracted herein below:-

33. We also remind all Courts/J.J. Board and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate etc. mentioned in Rule 12 (3) (a) (i) to (iii). The courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection.

34. "Age determination inquiry" contemplated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.

35. Once the court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in subsection (5) or Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the Rule 12. Further, Section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination.

The learned trial court was not supposed to embark upon roving and rigorous inquiry based on unusual reasoning not required under given facts and circumstances of the case, but would have chosen the legally approved preferential option as laid down under Sub Rule-3 of Rule 12. Such uncalled for inquiry should normally be avoided and the Hon'ble Apex Court in para no.-36 of the aforesaid cited case on Ashwani Kumar has also made certain observations, which is extracted herein below;

36. Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination.

In view of above backdrop of the factual and legal position, that in the presence of High School Certificate, trial Judge was not justified in jumping over to second preferential option while first preferential option was available; it was manifest error committed by the learned trial Judge and he ought not to have overlooked the substantial piece of evidence so appearing on record and approved by first preferential option in the form of High School mark-sheet and certificate. Therefore, the order impugned becomes erroneous and perverse and the same cannot be sustained as such. The principle of the aforesaid case of Ashwani Kumar are very much applicable in this case and the trial Judge cannot avoid and bypass the categorical guidelines so provided for conducting due inquiry within the specified legal sphere, in the matter of determination of juvenility.

For the reasons aforesaid, the order impugned dated 10.12.2013 passed by Additional Sessions Judge, court no.4, Bulandshahr in S.T. No.546 of 2011 (State Vs. Jai Kumar) is set aside and quashed and the case is remanded back for consideration afresh in the light of the observations made in the body of this judgment, preferably within a period of one month from the date of production of certified copy of this order in accordance with law after affording reasonable opportunity of hearing to all concerned.

This criminal revision is allowed in terms aforesaid.

Dt.29.05.2015

RK/Criminal Revision No.3693 of 2013