Allahabad High Court
Shashikant Ram vs State Of U.P. And Another on 3 April, 2023
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- APPLICATION U/S 482 No. - 11005 of 2023
Applicant :- Shashikant Ram
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Saurabh Kumar Pandey,Prashant Gaur
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Shri S.K. Pandey, learned counsel for the applicant as well as learned AGA and perused the record.
This 482 application has been filed assailing the legality and validity of the order dated 16-07-2022 and order dated 04-01-2023 passed by Special Judge (POCSO) Act, Azamgarh, arising out of Case Crime No. 145 of 2022, under Sections 363, 354, 323 IPC and 7/8 of POCSO Act, P.S. Mehnagar, District Azamagarh as well as stay the further proceeding of Special Sessions Trial No. 150 of 2022 (State Vs. Sashikant), pending in the Court of Special Judge (POCSO) Act, Azamgarh.
Drawing the attention of the Court to the annexure-10 to the petition whereby on 04-01-2023 the Special Judge (POCSO), Act, Azamgarh has framed the charges against the applicant under Sections 363, 354, 323 IPC and 7/8 of POCSO Act, on the same day. The learned Sessions Judge has brushed aside the plea of the applicant that on the date of the incident i.e. 11-05-2022 the age of the prosecutrix as per her High School Marksheet is 01-01-2004 and after calculating and computing the same, she has attained the age of majority on the date of the incident.
Section 94(2) of the Justice Juvenile (Care and Protection of Children) Act, 2015 reads thus:-
"(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining --
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. "
Learned counsel for the applicant has placed reliance upon a judgment of the Hon'ble Apex Court in the case of Vinod Kataria Vs. State of U.P., 2022 0 AIR (SC) 4771. The relevant paragraph no. 46 is quoted hereunder:-
" 46. Clause (a) of Rule 12(3) of the 2007 Rules contains a hierarchical ordering, evident from the use of the language "in the absence whereof". This indicates that where a matriculation or equivalent certificate is available, the documents adverted to in (ii) and (iii) cannot be relied upon. The matriculation certificate, in other words, is given precedence. It is in the absence of a matriculation certificate that the date of birth certificate of the school first attended, can be relied upon. It is in the absence of both the matriculation and the birth certificates of the first school attended that a birth certificate issued by the corporation, municipal authority or panchayat could be obtained."
From the aforesaid provision of Section 94(2) of the Justice Juvenile (Care and Protection of Children) Act, 2015, it is clear that the order impugned speaks about the age of the girl as mentioned in the F.I.R. The learned Special Judge (POCSO) Act has placed excessive reliance upon the objection raised by the informant's paper-17Ga and have decided that the date of birth mentioned in Junior High School seems to be more reliable.
I am afraid to accept the contention of the learned Special Judge (POCSO) Act as Junior High School marksheet can never be relied upon to determine the age of the prosecutrix. Only four documents which are mentioned in Section 94(2) of the Justice Juvenile (Care and Protection of Children) Act, 2015 can be looked into while framing the charges.
Under these circumstances, I have got no hesitation to set aside the order dated 04-01-2023 passed by Special Judge (POCSO) Act, Azamgarh with a direction that the applicant shall move an application under Section 216 Cr.P.C. within a period of next ten days raising all the legal points for framing the charges. If such an application is moved, the learned Special Judge (POCSO) Act shall look into the matter and pass a suitable reasoned order within next eight weeks from the production of certified copy of this order and amend the charge within next three weeks thereafter.
With the aforesaid observations, the application is accordingly disposed of.
Order Date :- 3.4.2023
pks
