Sanjay Mishra vs State (Nct Of Delhi)
2010 Latest Caselaw 3074 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      CRL.M.A.NO. 173/2010 IN CRL.A.NO. 31/2010

       SANJAY MISHRA                                        ....APPELLANT
               Through:              Mr. Sheikh Israr Ahmad, Advocate

                              Versus

       STATE (N.C.T. OF DELHI)                ....RESPONDENT
                Through: Mr. Lovkesh Sawhney, APP


        CORAM:
        HON'BLE MR. JUSTICE A.K. SIKRI
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

                                     ORDER

02.07.2010

1. The appellant vide this application has raised the plea of

juvenility and prayed for holding an inquiry under Section 7A of the

provision of Juvenile Justice (Care and Protection of Children) Act, 2000

(for short the 'Act') to determine the age of the appellant at the time of

commission of offence.

2. It is alleged that although an inquiry into the issue of juvenility of

the appellant was conducted by the Principal Magistrate, Juvenile

Justice Board, Delhi, the Board went wrong in concluding that the

appellant Sanjay Mishra was not a juvenile at the relevant time. He

submitted that perusal of the impugned inquiry report dated 19th July,

2005 would show that the learned Principal Magistrate has fixed the

age of the appellant Sanjay Mishra at the time of occurrence above 18

years on the basis of the medical opinion based upon the ossification

test, ignoring the School Leaving Certificates of the appellant issued by

C.R. Public School, Nangal Thakran, Delhi and the Govt. Boys Senior

Secondary School-II, C-Block, Janakpuri, Delhi, wherein the date of birth

of the appellant is shown as 02nd December, 1983, which clearly shows

that on the date of commission of offence i.e. 01st March, 2001, the

appellant was less than 18 years, thus juvenile. Learned counsel

submitted that the basis for ignoring these certificates as apparent

from the inquiry report is that the appellant's School Leaving

Certificate purportedly issued by Maharshi Dayanand Public School,

Ishwar Colony, Bawana was found to be forged. He submitted that if

one School Leaving Certificate was not found genuine, the concerned

Magistrate was not justified in rejecting the other two School Leaving

Certificates also. Thus, learned counsel for the appellant has urged us

to accept his prayer in application criminal miscellaneous No. 173/2010

and direct inquiry into the age of the appellant.

3. We do not find merit in this contention. On perusal of the copy of

the inquiry report dated 19th July, 2005 annexed to the application, it

transpires that the learned Principal Magistrate examined as many as 7

witnesses in the inquiry to fix the age of the appellant Sanjay Mishra.

As per the inquiry report, it was found that School Leaving Certificate,

purportedly issued by Maharshi Dayanand Public School, Ishwar

Colony, Bawana showing the date of birth of the delinquent as 22nd

December, 1983, was found to be forged. This fact was confirmed by

Smt. Amit Saxena, Vice-Principal of the school in her statement made

in the inquiry. Perusal of the inquiry record reveals that the appellant

also claimed to have stusied in Govt. Prathmic Vidyalaya, District

Gonda, U.P. Sh. Jaglal, Head Master of that school was examined as

CW5 in the inquiry, who produced certificate records of the school to

establish that the date of birth of the delinquent as per school record is

22nd December, 1983. Even in that record, number of cuttings and

overwriting were found by Inquiry Magistrate. Therefore, in our

considered view, the learned Inquiry Magistrate has rightly declined to

rely upon that record. As regards School Leaving Certificate issued by

C.R.Public School, Nangal Thakran, CW1 Kanwal Prakash, Manager of

the school stated that Sanjay Mishra was admitted in their school in

VIIth class on the basis of School Leaving Certificate issued by the

Principal, Maharshi Dayanand Public School, Ishwar Colony, Bawana.

Once it is found that the School Leaving Certificate issued by the said

school is forged, then, the entries on the basis of the said School

Leaving Certificate made in the record of C.R.Public School, Nangal

Thakran cannot be relied upon.

4. Thus, it is apparent that the learned Principal Magistrate, Juvenile

Justice Board has rightly rejected the School Leaving Certificates

produced on behalf of the appellant and determined the age of the

appellant on the basis of the ossification test. Be that as it may, the

aforesaid finding of inquiry report dated 19th July, 2005 was not

challenged by the appellant. Therefore, in our view, it has become

final and the issue cannot be reopened at this late stage. Thus, we do

not find any merit in the present application.

5. The application is dismissed accordingly.

A.K. SIKRI, J.

AJIT BHARIHOKE, J.

JULY 02, 2010 akb