The State Of Madhya Pradesh vs Vikas Rajak (Malviya) @ Vikku
2022 Latest Caselaw 2146 MP

                                    1
    IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                  BEFORE
                          SHRI JUSTICE SUJOY PAUL
                                     &
                    SHRI JUSTICE MILIND RAMESH PHADKE
                         ON THE 16th OF FEBRUARY, 2022

                 MISC. CRIMINAL CASE No. 5156 of 2021

        Between:-
        THE STATE OF MADHYA PRADESH THR. P.S.
        SUKHI SAIWANIYA BHOPAL (MADHYA PRADESH)

                                                                   .....PETITIONER
        (By Shri S.K. Kashyap, Government Advocate)

        AND

        VIKAS RAJAK (MALVIYA) @ VIKKU S/O SUKHLAL
        MALVIYA , AGED ABOUT 23 YEARS, HOUSE NO.56
        LAL BAHADUR SHASTRI MARG PURAN PURA
        JHUGGI VIDISHA DEHAT IN PRESENT MUNNLAL
        MALVIYA HOUSE IN FRONT OF GWALBABA P.S.
        CHHOLA TEMPLE BHOPAL (MADHYA PRADESH)

                                                                 .....RESPONDENT


      This appeal coming on for hearing this day, JUSTICE SUJOY PAUL
passed the following:
                                     ORDER

Heard on the question of grant of leave to appeal against the impugned judgment dated 02.11.2019 passed in Sessions Trial No.64/2018.

Learned Government Advocate for the State submits that as per Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for brevity, 'the Act'), the method of determination of the age is prescribed. In furtherance thereof, the prosecution produced the scholar register from proper custody wherein name of the victim is mentioned and date of birth is recorded as 18.06.2005. The Court below disbelieved it on the basis of a judgment of the Supreme Court reported in AIR 1988 SC 1796 (Birad mal Singhvi vs. Anand Purohit) insisted for the source on the strength of which date of birth was recorded. This finding of Court below runs contrary to the statutory mandate ingrained in Section 94 of the Act which recognizes the date of birth recorded in the school register. The occular evidence of prosecutrix or other witnesses are also not of any significance for the purpose of determining age of the prosecutrix. The

necessary ingredients for determining age as per Section 94 of the Act were satisfied by the prosecution. The court below has erred in recording a finding that prosecutrix was below the age of 16 years.

Learned Government Advocate submits that prosecutrix was a minor and in

that case presumption under Sections 29 and 30 of the POCSO Act is attracted. There was no reason for the court below to take a different view.

We have heard the counsel at length and perused the record. Prima-facie, we find substance in the arguments of learned Government Advocate for the appellant. The Apex Court in the case of Ashwani Kumar Saxena vs. State of Madhya Pradesh reported in (2012) 9 SCC 750 has opined in para-34 as under :-

"34. ........ But court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for medical report for age determination."

(Emphasis supplied) T hus , prima-facie, the court below has committed an error in not determining the age on the basis of parameters laid down in Section 94 of the Act.

Thus, in our opinion, a case is made out for grant of leave. Accordingly, leave is granted.

The Registry shall convert this matter into an appeal. A bailable warrant of Rs.25,000/- (Rs. Twenty Five Thousand only) be issued to the respondent for a date to be fixed by the Registry.

                                                 (SUJOY PAUL)                                         (MILIND RAMESH PHADKE)
                                                    JUDGE                                                      JUDGE
                                              Priya.P




Signature Not Verified
  SAN




Digitally signed by priyanka pithawe mishra
Date: 2022.02.17 15:31:05 IST