Ram Prasad vs State Of U.P. & Another
2015 Latest Caselaw 3230 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 26
 
Case :- CRIMINAL REVISION No. - 2616 of 2013
 

 
Revisionist :- Ram Prasad
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Bhupendra Pal Singh
 
Counsel for Opposite Party :- Govt. Advocate,Gopal Srivastava
 

 
		Connected with
 

 
Case :- CRIMINAL REVISION No. - 576 of 2014
 

 
Revisionist :- Ram Prasad
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Bhupendra Pal Singh
 
Counsel for Opposite Party :- Govt. Advocate,Gopal Srivastava
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

As both these revisions relate to the same occurrence, the revisionist and the accused-respondent no. 2 are also the same and common issue pertaining to juvenility of the accused - respondent no. 2 is involved in both the revisions, both vide order dated 19.3.2015 passed by this court were connected together, and are hereby decided by a common order.

Criminal Revision No. 2616 of 2013 has been preferred against the impugned order dated 28.9.2013 passed by learned Additional Sessions Judge, Court No. 11, Aligarh, in Criminal Appeal no. 227 of 2012 whereby confirming the order dated 23.11.2012 passed by the Juvenile Justice Board, Aligarh, in Case No. 354 of 2012, State Vs. Gajendra, arising out of Case Crime No. 802 of 2012, under section 302, 323, 504 and 506 I.P.C., P.S. Quarsi, District Aligarh.

Criminal Revision No. 576 of 2014 is directed against the order dated 12.2.2014 passed by learned Additional Sessions Judge, Court no. 6, Aligarh, in Criminal Appeal No. 261 of 2013 whereby confirming the order dated 20.11.2013 passed by the Juvenile Justice Board, Aligarh, in Case No. 255 of 2012, State Vs. Gajendra, arising out of Case Crime No. 825 of 2012, under sections 25/27 Arms Act, P.S. Quarsi, District Aligarh.

Heard Mr. Rajiv Lochan Shukla and Mr. Bhupendra Pal Singh, learned counsel for the revisionist, Mr. Tarkeshwar Yadav, learned AGA for the State and Mr. Gopal Srivastava, learned counsel for respondent no. 2. Perused the records.

Some background facts necessary for a just and proper disposal of both these revisions are that a criminal case was lodged by the informant Ram Prasad (who is the revisionist in both the revisions) against respondent no. 2, Gajendra, and some others alleging murder of his son by the accused persons assigning specific role to respondent no. 2 Gajendra of firing from a country made pistol on informant's son. This case was registered at Case Crime No. 802 of 2012, under section 302, 323, 504 and 506 I.P.C., P.S. Quarsi, District Aligarh. The matter was investigated. During investigation the police recovered a country made pistol at the instance of respondent no. 2. On the basis of this recovery another case under sections 25/27 Arms Act was registered against the respondent no. 2 at Case Crime No. 825 of 2012.

As Case Crime No. 802 of 2012 under sections 302, 323, 504 and 506 I.P.C. was registered earlier its proceedings commenced earlier to the proceedings of Case Crime No. 825 of 2012. In Case Crime No. 802 of 2012 the accused- respondent no. 2 Gajendra moved an application before the court below claiming himself a juvenile. In support of his claim he filed his High School certificate. The Juvenile Justice Board on 23.11.2012 disposed of the application of respondent no. 2 holding him a juvenile in conflict with law on the basis of the High School certificate filed by respondent no. 2 keeping in view that the date of occurrence being 16.6.2012 and the date of birth of accused - respondent no. 2 as mentioned in the High School Certificate being 8.2.1995 his age was 17 years four month and 8 days on the date of occurrence.

Against the aforesaid order dated 23.11.2012, the revisionist/ complainant filed Criminal Appeal No. 227 of 2012 before the Additional Sessions Judge, Court No. 11, Aligarh, annexing several documents including High School Marks sheet of respondent no. 2 pertaining to the year 2008, Voters list, LIC policy, Registration Certificate and several cuttings of newspaper, in proof of the fact that respondent no. 2 was major at the date of occurrence, but the lower appellate court (Additional Sessions Judge) dismissed the appeal and affirmed the order dated 23.11.2012 passed by Juvenile Justice Board, Aligarh by the impugned order dated 28.09.2013.

Being aggrieved by the aforesaid order dated 28.09.2013 the informant filed Revision No. 2616 of 2013 which was admitted by this Court on 10.10.2013 by following order:-

"Supplementary affidavit filed today on behalf of the revisionist be taken on record.

Heard learned counsel for the revisionist, learned AGA for the State and perused the record.

Admit.

Learned AGA has already accepted notice on behalf of the State/opposite party no.1.

Issue notice to opposite party no. 2.

All the opposite parties may file counter affidavit within four weeks. Rejoinder affidavit may be filed within two weeks thereafter.

List this matter after six weeks.

The counsel for the revisionist has submitted that the opposite party no. 2 is major as per High School certificate, so the proceedings of the case in question pending before Juvenile Justice Board concerned be stayed during the pendency of this revision.

In view of the submission of the counsel for the revisionist, further proceedings of case no. 354 of 2012 (State vs. Gajendra), arising out of Case Crime No.802 of 2012, under Sections 302, 323, 504, 506 IPC, P.S. Quarssi, District Aligarh, is hereby stayed till the next date of listing."

In the proceedings related to Case Crime No. 825 of 2012 under sections 25/27 Arms Act also, the accused / respondent no. 2 moved an application for declaring him a juvenile. The Juvenile Justice Board vide order dated 20.11.2013, declared him juvenile, which order was confirmed by Additional Sessions Judge, Court No. 6 in Criminal Appeal No. 261 of 2013.

By means of Criminal Revision No. 576 of 2014, both the aforesaid orders passed by the courts below have been challenged.

The submission of learned counsel for the revisionist is that learned Juvenile Justice Board has passed the order dated 28.09.2013 without giving any opportunity of hearing to the complainant. In the appeal filed by complainant against such order, the complainant / appellant had filed several documents in proof of the fact that accused / respondent is major including a mark sheet of High School of 2008, but the court below failed to consider that if the accused / respondent no. 2 Gajendra has two mark sheets of High School, mentioning two different dates of birth, as 10.07.1992 and 08.02.1995, morever both High School certificates were of the same school, namely, Sri M.P. Sastri I.C. Bhawan Khair, Aligarh, the court below ought to have ordered for medical examination of the accused. Learned counsel for the revisionist has further contended that the lower appellate court did not consider any documents filed by the revisionist in proof of the fact that the accused / opposite party no. 2 Gajendra is major like the PAN Card, Voter Identity Card, the L.I.C. Bond and the Driving License of accused Gajendra in which his date of birth is mentioned as 10.07.1982. Advancing his arguments further learned counsel for the revisionist has submitted that he had produced sufficient evidence before the court below in proof of the fact that the accused Gajendra has four sons and one daughter and he was married in the year 2003 which fact is evident from the registration certificate of Vehicle No. UP81M7753 registered in the name of Gajendra's wife Pushpa, however, the court below dismissed his appeal without any rhyme and reason and ignoring all the documents filed by the revisionist. Learned counsel for the revisionist has further argued that in Case Crime No. 825 of 2012, the revisionist / applicant had moved an application annexing all the aforesaid documents with prayer that before passing any order with regard to juvenility of accused Gajendra, these documents be considered, but learned Juvenile Justice Board dismissed his application only on the ground that in related Case Crime No. 802 of 2012, the accused Gajendra has already been declared a juvenile in conflict with law and the appeal filed against that order being dismissed, the aforesaid order has attained finality. Hence on the basis of the order passed in another case, the Juvenile Justice Board refused to consider any documents filed by the revisionist and rejected the application of complainant. Advancing his arguments further it has been submitted by learned counsel for the revisionist that the appeal filed against the aforesaid order was dismissed by the Additional Sessions Judge only on the ground that in Case Crime No. 825 of 2012 the appeal has been dismissed by the Additional Sessions Judge and the High Court has not set aside that order of dismissal in criminal revision filed before it. The submission of learned counsel for the revisionist is that when the revision was pending at the High Court, how can it be assumed by the court below that the order has attained finality?

Per contra, learned counsel for the opposite party no. 2 has argued that the court below has passed the order declaring the opposite party no. 2 a juvenile after applying its judicial mind and keeping in view the provisions of Rule 12 of the Juvenile Justice Rules, 2007. The submission of learned counsel for the opposite party no. 2 is that opposite party no. 2 has never appeared or participated in High School Examination, 2008 and the Mark Sheet filed by the revisionist pertaining to the year 2008 is a fabricated document. It is next contended that the marriage of opposite party no. 2 was solemnized with Smt. Pushpa when he was minor and he has no children from the aforesaid wedlock, as alleged by the revisionist. His date of birth is neither 10.07.1982 or 10.07.1992 and the alleged documents annexed by the revisionist are manipulated documents. Moreover, the alleged documents are not the conclusive and decisive proof of date of birth as per the provisions of Rule 12(3) to 12(6) of the Juvenile Justice Rules, 2007. Learned counsel for respondent no. 2 has submitted that bare perusal of aforesaid provision clearly shows that the option of medical examination of a juvenile would only be exercised by Juvenile Justice Board or the court in case of non availability of the documents enumerated in the above Rules in order of preference and the courts below have rightly declared the respondent no. 2 as a juvenile on the basis of his High School Certificate which comes at no. 1 in order of preference.

Considered the rival submissions of both the parties and perused the original record.

The orders impugned in Criminal Revision No. 2616 of 2013 shows that the Juvenile Justice Board has declared the accused / respondent no. 2 a juvenile without giving any opportunity of hearing to the complainant / revisionist. The lower appellate court has not considered the documents filed by the revisionist in support of his claim that opposite party no. 2 was major at the date of occurrence. The order dated 20.11.2013, passed by Juvenile Justice Board, Aligarh shows that the Board has declared respondent no. 2 a juvenile in conflict with law on the basis of the order passed in case crime no. 802 of 2012, under Sections 302, 323, 504, 506 I.P.C. by holding that the order dated 23.11.2012 passed in case crime no. 802 of 2012 has been affirmed by the appellate court (Additional Sessions Judge) vide order dated 28.09.2013 and this Court has not set aside that order in Criminal Revision No. 576 of 2014. The lower appellate court has also affirmed the order dated 20.11.2013 of Juvenile Justice Board on the basis of the fact that the order dated 23.11.2012 passed in case crime no. 802 of 2012 has not been set aside by any appellate court and only further proceedings have been stayed by the High Court. The lower appellate court has not given any finding on the High School Mark Sheet of the year 2008 showing date of birth of opposite party no. 2 as 10.07.1992. It is settled position of law that evidence of one case cannot be considered in another in view of the law laid down by the Apex Court in the case of Mitthu Lal Vs. State of M.P. AIR 1975 SC pg. 149. The courts below have relied on order passed in another case for declaring the opposite party no. 2 a juvenile in the Case Crime No. 802 of 2012.

The revisionist has filed certified copy of an order dated 27.11.2013 passed by Juvenile Justice Board (Annexure-4) to show that Juvenile Justice Board has already passed an order for inquiry of High School Mark Sheet of the year 2008 and has summoned the Principal of M.P. Sastri Inter College, Bhawan Kheda, Aligarh. However, it appears that as the records were summoned by this Court in connection with these revisions, the High School Mark Sheet of the year 2008 of opposite party no. 2 could not be verified.

Considering all these facts and circumstances of the case, this Court is of the considered view that both the courts below have acted with material illegality and irregularity while passing the impugned orders, hence the impugned orders are liable to be set aside and the revision deserves to be allowed.

The revision is allowed. The impugned orders dated 12.02.2014 and 20.11.2013 are hereby set aside and the case is remanded back to the Juvenile Justice Board, Aligarh with a direction to pass order in accordance with law after due verification of both the High School Mark Sheets of respondent no. 2 available on record. It is further directed that in view of the two contradictory Mark Sheets, showing different dates of birth, if it appears expedient in the interest of justice to the Board for reaching at a right conclusion, to medically examine the respondent no. 2 for determination of his age, it may do so.

Office is directed to send the lower court's record to the court concerned forthwith placing a copy of this judgment on the records of both cases for compliance.

Order Date :- 15.10.2015

NS