K-Minor vs State Of U.P. And Another
2023 Latest Caselaw 27575 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:193469
 
Court No. - 80
 

 
Case :- CRIMINAL REVISION No. - 4091 of 2023
 

 
Revisionist :- K-Minor
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Ambreen Masroor,Sadrul Islam Jafri,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,Adesh Kumar
 

 
Hon'ble Subhash Chandra Sharma,J.

Heard learned counsel for the revisionist as well as learned counsel for the opposite party alongwith learned A.G.a. for the State.

The present criminal revision has been preferred by the revisionist through his mother under Section 102 of the Juvenile Justice (Care and Protection) Act-2015 (hereinafter referred to as "J.J. Act, 2015) to allow the present revision and set aside the impugned judgment and order dated 08.05.2023 passed by the learned Additional Session Judge/Special Session Judge (POCSO Act)/Special Juvenile Court No.2, Meerut, and the order dated 24.03.2023 passed by Juvenile Justice Board, Meerut and the revisionist may kindly be declared as juvenile and also prays to stay the operation of the aforesaid orders during the pendency of the trial before the learned court below.

Facts in brief are that the claim of juvenility was made by the child before the learned J.J. Board on the basis of date of birth as recorded in the Municipal Board on 01.04.2005 which was 20.03.2005 but it was rejected by the learned Board on the basis of date of birth which was recorded in his academic record from Class-I to Class-X that was 02.06.2004. Accordingly, the age of the child was found to be more than 18 years. Learned appellate court also dismissed the appeal on the basis of date of birth as entered into the record related to his educational certificate against which this criminal revision has been preferred before this Court.

It is submitted by learned counsel for the revisionist that the date of birth of the child was first got registered in municipal record that was 20.03.2005 and it was got registered after 12 days of the birth. His parents were illiterate that was the reason his date of birth was not got entered into academic record at the time of admission in Class-I and it continued up to the matriculation standard (Class X). The clerk working in Municipal Board was examined before the learned J.J. Board who also proved the date of birth as recorded in municipal record as 20.03.2005 but learned Board relied on the date of birth registered in educational record from primary to matriculation standard which was subsequent to the registration in Municipal Board. The date of birth as recorded in Nagar Palika Parishad/Municipal Board was entered by the public servant in discharge of his official duties, therefore, it cannot be said to be false but it was reliable even though learned Board did not rely it but acted upon the date of birth as recorded in the education record. The language used in Section 94 of the Act also makes clear that date of birth certificate given by the municipal authority or panchayat be regarded as true and it be acted upon. In this way, the orders passed by learned J.J. Board as well as appellate court while rejecting the claim of juvenility of the child cannot be said to be lawful and based on material on record but is liable to be set aside and this criminal revision is to be allowed.

Learned counsel for the opposite party as well as learned A.G.A. opposed the prayer as aforesaid and contended that as per Section 94 (2)(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in absence thereof; sub-section 94 (2) (ii) of the Act the birth certificate given by a corporation or by a municipal authority or panchayat be given preference and in absence of (i) & (ii) of the Section 94 (2), 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. In the present case the date of birth from the school as well as matriculation certificate was available at the time of determination of age and there was no any doubt or manipulation in the academic record, therefore, it cannot be discarded at all. From Class-I to Class-X standard the date of birth of the child continued to be registered as 02.06.2004 and it was never got corrected on the part of the child as such i.e. 20.03.2005. It is also contended that the date of birth as recorded in education record has also been proved by the clerks of the concerned schools i.e. Spring Dales Public School, Mawana, Meerut and Krishak Inter College, Mawana, Meerut. There were no discrepancies in date of birth as recorded in the aforesaid classes as a result no doubt regarding entry of date of birth and it was also acted upon from the beginning to end on the part of the child. On the other hand the birth certificate given by a corporation or municipal authority or panchayat was to be given preference in absence of birth certificate from the school or the matriculation certificate from the concerned examination body. In such a situation of facts the learned Board as well as learned appellate court relied on the date of birth which was entered in the academic record from Class-I to Class-X standard and there is no any illegality in the orders passed by the Board as well as court but this criminal revision being devoid of merit is liable to be dismissed.

"Section 94 : Presumption and determination of age

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:"

From the language used in Section 94 (2) (i), it infers that date of birth certificate from the school or matriculation Board or equivalent certificate from the concerned Board if not available, then recourse of birth certificate by a Corporation or by municipal authority or by panchayat is to be taken and in absence thereof the age shall be determined by the ossification test.

From the record, it appears that the claim of the child for juvenility was made on the basis of date of birth as got recorded in Municipal Board as 20.03.2005 but it was denied on the basis of date of birth that was registered in academic record from Class-I to Class-X standard. In Class-I he took admission in Spring Dales Public School, Mawana where date of birth was recorded as 02.06.2004 and it was proved by AW-4 Anuj Kumar concerned clerk. On the basis of this date of birth in subsequent class in the school Krishak Inter College, Mawana the date of birth was entered into and it was proved by AW-3 Rakesh Kumar clerk concerned with the record. There was no over writing or manipulation in the date of birth as recorded in academic education records as a result there was no question to make any doubt regarding entries made therein. When these academic records were available and there was no question of doubt regarding entry made therein, there is no need of taking recourse of birth certificate said to be issued by the Municipal Board. On the other hand no any such claim was made on the part of the child before the education authority to get the date of birth corrected on the basis of municipal board record that was said to be 20.03.2005. In this way, the learned J.J. Board as well as learned trial court cannot be said to have acted against the provisions of law and material on record. Therefore, there appears no any illegality in rejecting the claim of the juvenility of the child. It is to note that learned counsel for the revisionist emphasized on the view taken in the case of Rajinder Chandra vs. State of Chhatishgarh & another [2002 (1) JIC 609 (SC)] that if two views may be possible, the court should lean in favour of holding the accused juvenile in border line cases. In that case the entries in school certificate as well as in the birth register showing the child to be juvenile were over written but in the present case there was no any such over writing or discrepancy in the date of birth as recorded in the educational record. Therefore, the aforesaid benefit cannot be extended to the child in this case.

As a result the orders passed by the learned J.J. Board as well as the learned appellate court do not warrant interference by this Court.

Accordingly, this criminal revision being devoid of merit is dismissed.

Order Date :- 9.10.2023/Ashok Gupta