Juvenile 'X' vs State Of U.P. And Another
2023 Latest Caselaw 26528 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:190730
 
			 
 
REPORTABLE
 
Reserved on 30.05.2023
 
Delivered on  27.09.2023
 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 

 

 

 
Juvenile 'X'					    			...Revisionist
 
v/s
 
State of U.P. and Another                                            ...Opposite Parties
 

 
JUDGMENT

HON'BLE SANJAY KUMAR PACHORI, J.

1. Heard Sri Hari Prakash Mishra, learned counsel for the revisionist and Sri Nagendra Singh, learned brief holder for the State. Despite service of notice upon opposite party no.2, none has appeared.

2. The present criminal revision has been preferred to set aside the judgment and order dated 25.07.2022 passed by Sessions Judge, Etah in Criminal Appeal No.47 of 2022 by which the appellate court allowed the criminal appeal and set aside the order dated 01.06.2022 passed by Juvenile Justice Board, Etah in Criminal Misc. Case No. 94 of 2021 arising out of Case Crime No. 525 of 2021, under Section 376 (3), 506 IPC and 3/4 POCSO Act, whereby the Juvenile Justice Board declared the revisionist.

3. Before the Juvenile Justice Board the opposite party no.2 filed his objection, alleging that as per voter list the revisionist was 25 years old and the Investigating Officer recorded that the revisionist was 22 years old on 19.11.2020.

4. The appellate court observed that the educational certificate of the revisionist is not a reliable document and on the basis of computerised ration card of the revisionist, final voter list of Panchayat year 2021 and as per statement of CW-1 father of the revisionist, the revisionist was not a child in conflict with law and held that the revisionist was above 20 years old at the time of the incident, which had taken place in August, 2020.

5. Learned counsel for the revisionist submits that the appellate court has grossly erred while relying upon the voter list, statement of juvenile made before the investigating officer and discarded the High School Certificate of the revisionist and set aside the well considered order of Juvenile Justice Board on the basis of perverse finding.

6. Per contra; learned A.G.A. for the State defended the impugned judgment and order passed by the Appellate Court.

7. I have carefully considered the submissions made by the learned counsel for the revisionist and learned A.G.A. for the State and perused the material on record.

8. Before appreciating the evidence and submissions of the revisionist, it would be appropriate to discuss the scope of invoking the jurisdiction of the High Court in Criminal Revision.

9. The Supreme Court observed in Raj Kumar v. State of Himachal Pradesh, (2008) 11 SCC 76, as under:

"9. In Duli Chand v. Delhi Admn, (1975) 4 SCC 649 the scope of invoking jurisdiction of the High Court in criminal revision was examined and it was held in a case involving vehicular accident as follows: (AIR p. 1960)

The question whether the accused was guilty of negligence in driving the bus and the death of the deceased was caused due to his negligent driving is a question of fact which depends for its determination on an appreciation of the evidence. Where the Magistrate, and the Additional Sessions Judge arrived, on an assessment of the evidence at a concurrent finding of fact that the death of the deceased was caused by negligent driving of the bus by the accused and the High Court even though justified in refusing to re-appreciate the evidence reviewed the same in order to satisfy itself that there was evidence in support of the finding and that the finding was not perverse, came to the conclusion that the evidence established the death of the deceased was caused by the negligent driving of the bus by the accused, the Supreme Court on an appeal under Article 136 refused to interfere.

10. In State of Orissa v. Nakula Sahu, (1979) 1 SCC 328, it was held that the High Court should not have interfered with the concurrent findings recorded by the trial court and the Sessions Judge in exercise of revisional jurisdiction when there was no error or fact or law arrived at by the trial court or the Sessions Judge.

11. In State of Kerala v. Puttumana Illah Jathavedan Namboodiri, (1999) 2 SCC 452, it was held that the revisional jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.

10. In State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand & Others, (2004) 7 SCC 659, the Apex Court has been observed that:

"22. The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceeding of such inferior court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power."

11. In Krishnan & Another v. Krishnaveni & Another, (1997) 4 SCC 241, the Supreme Court observed as under:

"1. Exercises of the revisional power by the high court under Section 397 read with Section 401 is to call for the records of any inferior Criminal Court and to examine the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. The Court of Sessions and the Magistrates are inferior criminal courts to the High Court and Courts of judicial Magistrate are inferior criminal courts to the sessions judge. Ordinarily, in the matter of exercise of power of revision by any High Court, Section 397 and  Section 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under  Section 401 to exercise the revisional power on the grounds mentioned therein, i.e. to examine the correctness, legality or propriety of any finding sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior court, and to dispose of the revision in the manner indicated under Section 401 of the Code. The revisional. power of the high Court merely conserves the power of the high Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that its subordinates courts do not exceed the jurisdiction or abuse the power vested in them under the code or to prevent abuse of the process of the inferior criminal courts or to prevent miscarriage of justice."

12. It is well settled principle of law that the inherent as well as revisional jurisdiction should be exercised cautiously. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. (Vide: Amit Kappor v. Ramesh Chander (2012) 9 SCC 460).

13. It is also well settled principle of law that the findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible evidence. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide: Rajinder Kumar Kindra v. Delhi Administration AIR 1984 SC 1805; H.B. Gandhi & Ors. v. Gopi Nath & Sons 1992 supp. (2) SCC 312; Triveni Rubber & Plastics v. Collector of Central Excise, Cochin AIR 1994 SC 1341; Gaya Din (D) thr. Lrs. & Ors. v. Hanuman Prasad (D) thr. Lrs. & Ors. AIR 2001 SC 386; Aruvelu & Anr. (Supra); and Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary (2009) 10 SCC 636).

14. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, provides as follows:

"94. Presumption and determination of age.--(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the 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:

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.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."

15. The main thrust of argument is as to whether the High School Certificate of the revisionist can be discarded on the basis of age mentioned in the voter list of year 2020 and statement of the revisionist, which was recorded during the investigation in the enquiry provided under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

16. Section 94 (2) (iii) of the Juvenile Justice (Care & Protection of Children) Act, 2015 clearly provides that the date of birth from the school or matriculation or equivalent certificate by the concerned examination board has to be first preferred in the absence of age the birth certificate issued by the Corporation or Municipal Authority or Panchayat. In the absence of these such document the age is to be determined through ossification test or any other latest medical age determination test conducted on the orders of the concerned authority.

17. In Rishipal Singh Solanki vs. State of Uttar Pradesh And Others (2022) 8 SCC 602, the Supreme Court has held as under:

"22. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (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. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year. If a juvenile in conflict with law was found to be below 18 years, an order had to be passed declaring the status of the juvenility by the Court. The said procedure was also applicable to dispose off cases where the status of the juvenility had not been determined in accordance with the Act and the Rules made thereunder."

"32.3  In Arnit Das v. State of Bihar - (2000) 5 SCC 488, this Court observed that while considering the question as to determination of the age of an accused for the purpose of ascertaining whether he is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced in support of the plea that he was a juvenile and, if two views may be possible, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. This is because the Act being a welfare legislation, the Courts should be zealous to see that a juvenile derives full benefits of the provisions of the Act but at the same time it is also imperative for the Courts to ensure that the protection and privileges under the Act are not misused by unscrupulous persons to escape punishment for having committed serious offences."

32.13. In para 36 of parag Bharti (2016) 12 SSC 744 it was observed:

'36. It is settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness of date of birth, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain vs. State of W.B., (2012) 10 SCC 489, an enquiry for determination of the age of the accused is permissible which has been done in the present case.'

18. Now I return back to case in hand, the Juvenile Justice Board vide order dated 01.06.2022 after considering the marks-sheet of U.P. Examination Board Year 2019 of the revisionist and Transfer Certificate of earlier school and statement of CW-2 and CW-3, who have proved the educational admission certificate, wherein the date of birth of the juvenile is 25.12.2002 and the Juvenile Justice Board declared that on the date and time of incident the juvenile was 16 years, 11 months and 24 days old .

19. Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of Rishipal Singh Solanki vs. State of Uttar Pradesh And Others (2022) 8 SCC 602, and the reasons recorded and discussed above, I am of the considered view that the appellate court recorded perverse finding into the enquiry for determination of age of the revisionist and is against the facts, evidence and law and the impugned order dated 25.07.2022 is liable to be set aside and the order date 01.06.2022 passed by the Juvenile Justice Board is liable to be affirmed. Hence the present criminal revision is liable to be allowed.

20. In view of the above, the present criminal revision is allowed and the order dated 25.07.2022 passed by Sessions Judge, Etah is set aside and the order dated 01.06.2022 passed by Juvenile Justice Board, Etah is affirmed.

21. The office is directed to send back the original record to the court concerned with certificate copy of the judgement immediately.

Dated: 27.09.2023

MAA/-