Madhya Pradesh High Court
The State Of Madhya Pradesh vs Vijay Chouhan on 17 February, 2022
Author: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
SHRI JUSTICE SUJOY PAUL
&
SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 17th OF FEBRUARY, 2022
MISC. CRIMINAL CASE No. 26844 of 2020
Between:-
THE STATE OF MADHYA PRADESH THR. ITS P.S.
JAHANGIRABAD BHOPAL DIST. BHOPAL
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI DILIP PARIHAR, PANEL LAWYER)
AND
VIJAY CHOUHAN S/O RAMPREET CHOUHAN ,
AGED ABOUT 26 YEARS, NEAR VALLABH BHAWAN
BHIMNAGAR BHOPAL DIST. BHOPAL (MADHYA
PRADESH)
.....RESPONDENT
Th is application coming on for hearing this day, JUSTICE MILIND
RAMESH PHADKE passed the following:
ORDER
Heard on the question of grant of leave.
This is an application filed under Section 378(III) read with Section 378(I) of
Cr.P.C. seeking leave to appeal against the impugned judgment dated 04.01.2020
passed in Sessions Trial No. 579/2018 passed by 23rd ASJ Bhopal, Smt. Vandna
Jain.
Learned Panel Lawyer for the State has assailed the impugned order of
acquittal basically on the ground that learned trial court had wrongly concluded that
since it is a case of consent respondent is not guilty, ignoring that the prosecutrix
was a minor and the prosecution had proved this fact by producing the scholar
register wherein the age of the prosecutrix was recorded as 15.05.2004 and thus
the age of the prosecutrix would come to 13 years, 5 months and 13 days and
therefore, since the prosecutrix was a minor, her consent has no meaning and the
Signature Not Verified
acquittal of the respondent is bad in law.
SAN
Digitally signed by ARVIND KUMAR
MISHRA
Date: 2022.02.18 17:01:51 IST Learned Panel Lawyer has criticized the paragraph 8 of the judgment wherein
the finding regarding to the age of prosecutrix was recorded. He is further assailed
paragraph 21 of the judgment wherein discussion regarding to the consent has been
recorded and he argued that the prosecutrix being a minor her consent has no
meaning and therefore, the acquittal on the basis of consent could not have been
recorded.
The very finding of the Court below runs contrary to the statutory mandate
ingrained in Section 94 of the Juvenile Justice (Care and Protection of Children)
Act, 2015 (for brevity, 'the Act'), which recognizes the date of birth recorded in the
scholar register to be a genuine document and accordingly, it was contended that
the court below erred in recording the finding that prosecutrix was not below the
age of 18 years. That apart, it was also argued that the learned Court below also
overlooked the medical evidence produced by the prosecution thus erred in
acquitting the respondent.
Learned Panel Lawyer had placed reliance on the judgment rendered by
Hon'ble Apex Court in the matter of Jarnail Singh Vs. State of Haryana (2013)
7 SCC 263 (Paragraphs No. 22 and 23) and he also placed reliance on the
judgment of Hon'ble Apex Court in the matter of Mahadeo S/o Kerba Maske
Vs. State of Maharashtra and another (2013) 14 SCC 637 (Paragraphs No.
12 and 13), wherein the Hon'ble Apex Court referred to Rule 12 of Juvenile
Justice (Care and Protection of Children) Rules 2007 and held that Court should
follow the procedure as laid down in the aforesaid rule for determining the age of a
juvenile.
We have heard the counsel at length and perused the record.
Prima-facie, we find substance in the arguments of learned Panel Lawyer
for the applicant-State. 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
Signature Not Verified
SAN
normal course of business. Only in cases where those
Digitally signed by ARVIND KUMAR
documents or certificates are found to be fabricated or
manipulated, the court, the Juvenile Justice Board or the
MISHRA
Date: 2022.02.18 17:01:51 IST
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 of the prosecutrix 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
MISHRA
Signature Not Verified
SAN
Digitally signed by ARVIND KUMAR
MISHRA
Date: 2022.02.18 17:01:51 IST
