Harish Yadav vs State
2010 Latest Caselaw 5638 Del

                * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of Reserve: 2nd December, 2010
                                                Date of Order: 10th December, 2010
+ Crl. Rev. Petition No. 750/2010
%                                                                      10.12.2010

        Harish Yadav
        Thru Shri Rajkumar Yadav (father)                ... Petitioner
                         Through: Mr. Y.P.Singh, Advocate

                 Versus


        State                                                  ... Respondent



JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?    Yes.

2. To be referred to the reporter or not?                                   Yes.

3. Whether judgment should be reported in Digest?                           Yes.

JUDGMENT

By present petition, the petitioner has assailed order dated 16 th

September, 2010 passed by the learned Additional Sessions Judge

dismissing the appeal filed by the petitioner against order dated 31st July,

2010 of learned ACMM.

2. The petitioner is involved in a case under Section 302 IPC. The

investigation of the case is going on. During pendency of the investigation, he

made an application that he was a juvenile and instead of being sent to jail he

should have been sent to remand home. On this application being made, an

inquiry was conducted by the learned ACMM in the juvenility of the petitioner

in terms of Section 7-A of The Juvenile Justice (Care and Protection of

Children) Act, 2000. The petitioner had contended that his date of birth was

29th October, 1993 as recorded in his school certificate of Class VIII and IX.

During inquiry it was found that the petitioner was born at Village Khuram

Khara, District Gurgaon and his grandfather shifted to Delhi at Village

Bagdola. This fact was not disputed by the petitioner. The primary education

of petitioner had also taken place at District Gurgaon. The IO visited the Chief

Medical Officer, Gurgaon where births are registered and found the birth of

the petitioner was registered with CMO Gurgaon on 6th December, 1991

showing that he was born on 5th December, 1991. CMO issued a certificate

to this effect. It was also found that a different date of birth of the petitioner

was recorded in school mark-sheet issued by the District Primary Education

Gurgaon and this date of birth was 5th July, 1993. The learned ACMM after

conducting inquiry came to the conclusion that the petitioner was born on 5 th

December, 1991 which was his correct date of birth as recorded in the record

of CMO, Gurgaon and the other two dates of birth recorded in School

Certificate and mark-sheet had no authenticity since they were recorded on

the basis of oral information given by father or grandfather and the authentic

date of birth of the petitioner was 5th December, 1991. The counsel for the

petitioner, faced with this situation, had contended before the learned ACMM

that twins were born to his parents on 5th December, 1991 and died and

petitioner was not born on 5th December, 1991. The learned ACMM however,

came to the conclusion that the petitioner was not juvenile on the date of

commission of offence and his date of birth was 5 th December, 1991. Against

this order, petitioner preferred an appeal. The learned Additional Sessions

Judge again scrutinized the evidence collected during inquiry on the juvenility

of the petitioner and came to the conclusion that the correct date of birth of

the petitioner was 5th December, 1991 and the trial Court rightly came to this

conclusion. The petitioner has now approached this Court.

3. The plea of the petitioner is that under Rule 12 of Juvenile

Justice (Care & Protection of Children) Rules, 2007, the court should not have

believed the date of birth certificate issued by the CMO and submitted that in

terms of Rule 3, the Court should have restricted this inquiry only to

matriculate or equivalent certificate or date of birth certificate from school or

birth certificate given by Corporation or a Municipal Authority or a Panchayat.

He stated that if the matriculation certificate or equivalent certificate was

available then the Court should not have proceeded further and stopped the

inquiry at that level. If date of birth was available on school certificate then the

Court should not look into the date of birth certificate given by Corporation or

Municipal Authority. He also submitted that the Court should also have

looked at the appearance of the petitioner and determined juvenility and if

there were conflicting date of births on school certificates, then the Court

should have gone for determination of age by ossification test. It was

submitted that Court of ACMM did not go for ossification test of the petitioner

and did not go by appearance of the petitioner but determined age on the

basis of birth certificate issued by CMO therefore, the order of ACMM and

order of learned Sessions Judge was bad in law.

4. The arguments advanced by the learned Counsel for the

petitioner are misconceived. The purpose of Section 7-A and Rule 12 is to

ensure that a juvenile is not put to trial before a regular Court and he should

be given benefit of The Juvenile Justice (Care and Protection of Children) Act,

2000 and for this purpose it is provided that an inquiry into the age of juvenile

must be conducted by the Court. The mode of inquiry can be decided by the

Court/Committee/Juvenile Board according to facts and circumstances. In

this case the petitioner initially claimed his date of birth as 29th October, 1993

and later on he claimed his date of birth as 5th July, 1993. That simply shows

that the petitioner's date of birth was not recorded correctly in the school or in

the mark-sheet issued by the District Primary Education, Gurgaon. It is

evident that the certificate produced by the petitioner i.e. mark-sheet of

primary education did not meet the criterion as laid down in the Rules. The

purpose of inquiry is not to make an adult a juvenile and vice versa. The

purpose of inquiry is to come to the correct age of the petitioner and if the

exact date of birth of the petitioner can be determined through inquiry there is

no bar on the Court taking into account the exact date of birth. In this case

the petitioner's place of birth, his parentage is not in dispute. The birth of

petitioner was recorded in the record of CMO Gurgaon which is the authorized

government office for recording births in Haryana as municipal committees

are not there in all districts of Haryana. There is hardly any city where

municipal committees are functioning in Haryana and it is the CMO where

births are registered. Therefore the record available with CMO is the

authentic record of birth. There was no reason for the trial Court either to go

by appearance or to go by school leaving certificate or mark-sheet where

different dates of birth were given. Appearance can always be deceptive and

appearance has to be resorted to only initially by the Court or by the Board to

determine whether the person looks juvenile and should he be sent to remand

home or jail. Even if a person has been sent to remand home on the basis of

appearance and if on inquiry it is found that he was not juvenile he can be

taken out of remand home and sent to jail. I also find no force in the

argument of the petitioner that the Court should have not conducted inquiry

into the date of birth from CMO since school leaving certificate of the

petitioner was available.

I find no force in this petition. The petition is hereby dismissed.

December 10, 2010                            SHIV NARAYAN DHINGRA, J.
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