Rajasthan High Court - Jodhpur
Mahipal @ Mahipal Tetarwal vs State Of Rajasthan on 26 August, 2021
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 484/2021
Mahipal @ Mahipal Tetarwal S/o Shri Ghasiram, Aged About 18
Years, Jadau, Police Station Padukalan, Tehsil Riya Badi, District
Nagaur (Rajasthan).
(Presently Lodged At Observation Home At Ajmer).
----Petitioner
Versus
1. State Of Rajasthan, Through .p.p.
2. Surendra Mundel S/o Shri Makraram, Aged About 25
Years, Kapadiyawas, Police Station Merta Road, Tehsil
Merta, District Nagaur (Raj.).
3. Matudi W/o Shri Poonaram, Aged About 51 Years,
Kapadiyawas, Police Station Merta Road, Tehsil Merta,
District Nagaur (Raj.).
----Respondents
For Petitioner(s) : Mr. Dilip Singh Rathore
For Respondent(s) : Mr. Farzand Ali, GA cum AAG assisted
by Mr. Javed Gouri, PP
Mr. Shanker Singh Shekhawat
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
26/08/2021
In wake of second surge in the COVID-19 cases, abundant
caution is being maintained, while hearing the matters in Court,
for the safety of all concerned.
The petitioner has preferred this criminal revision petition
under Section 102 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 claiming the following relief:
"It is, therefore, most humbly prayed that this revision petition
filed by the accused-petitioner may kindly be allowed and
impugned Judgment dated 04.03.2021 passed by learned
Special Judge, Protection of Children from Sexual Offences Act
Cases, 2012 & Commission for Protection of Child Right Act,
2005, Merta, District Nagaur in Criminal Appeal No.27/2020 (CIS
No.27/2020) titled as "Surendra Mundel Vs. State of Rajasthan
& Ors." may kindly be quashed and set aside and the order
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dated 21.11.2020 passed by learned Principal Magistrate,
Juvenile Justice Board, Nagaur in Criminal Misc. Case
No.NIL/2020 titled as "State of Raj. Vs. Mahipal @ Mahipal
Tetarwal" (arising out of FIR No.47/2020 registered at Police
Station Merta Road, District Nagaur) may kindly be ordered to
be restored back.
Any other appropriate order, which this Hon'ble Court deems
just and proper in the facts and circumstances of the case may
kindly be passed in favour of the petitioner."
Brief facts of the case, as noticed by this Court are that an
FIR bearing No.47/2020 was registered on 21.05.2020 at Police
Station Merta Road, District Nagaur for the offences under
Sections 302, 307, 323, 341, 143 & 120-B of IPC.
During the course of investigation, the police found the date
of birth of the petitioner to be 15.07.2002, and thus, he was only
17 years and 10 months old and was minor on the date of the
alleged incident. Accordingly, the charge-sheet was submitted by
the police before the concerned Juvenile Justice Board, whereas
for the remaining accused, a separate charge-sheet was filed
before the concerned Judicial Magistrate.
The respondent No.2 moved an application for determination
of the age of the juvenile i.e. the accused-petitioner before the
learned Juvenile Justice Board, Nagaur, while stating that the
petitioner's actual age was 19 years and 06 months, as his actual
date of birth is 15.12.2000.
Learned counsel for the petitioner has drawn the attention of
this Court towards the order dated 21.11.2020 passed by learned
Juvenile Justice Board, Nagaur, in which, the learned court has
examined the documents of the school education of the petitioner,
which indicate that his date of birth was 15.07.2002.
The learned court has held that the complete record has
been examined so much so that even the Board of Secondary
Education, Rajasthan also indicated the age of the petitioner to be
15.07.2002. The certificate issued by the concerned school as well
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as the certificate issued by the Board of Secondary Education were
also examined.
Learned counsel for the petitioner submits that the order
dated 21.11.2020 was in accordance with law as the court after
examining the complete record has held that the petitioner's age
has to be taken as 17 years 10 months, at the time of the incident
happened on 21.05.2020, as his date of birth is 15.07.2002.
Learned Government Advocate cum cum Additional Advocate
General has taken this Court to Section 94 of the Juvenile Justice
(Care and Protection of Children) Act, 2015 (for short "the Act of
2015"). He fairly submits that due priority has to be given to the
matriculation certificate issued by the Board of Secondary
Education, and thereafter, if the educational certificates do not
reflect proper date, then rest of the options can be exercised.
Learned counsel for complainant-respondent No.2
vehemently opposed the petition on the ground that the transfer
certificate had certain overwriting in regard to the age, as
15.07.2000 has been converted into 15.07.2002.
This Court finds that even if the transfer certificate on the
earlier classes had some overwriting, then also the petitioner
could not have anticipated the crime in question, while taking up
his secondary board examination, and thus, the date given in the
certified issued by Board of Secondary Education, which is
authenticated from record by the learned court below, stands at
the strongest level of proof required for the age in tandem with
Section 94 of the Act of 2015.
The learned appellate court has failed to appreciate that the
certificate issued by Board of Secondary Education is carrying the
same date, as transfer certificate i.e. 15.07.2002, and the learned
court below had passed the impugned order dated 21.11.2020
only after perusing the record.
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This Court also finds that the most credible evidence, which
is not disputed by the respondent, is the certificate issued by the
Board of Secondary Education and the same was in conformity
with the investigation, in which, the police also found the age of
the petitioner to be 15.07.2002 and the charge-sheet was
preferred before the learned Juvenile Justice Board, Nagaur has to
be sustained.
In light of the aforesaid discussion, the present petition is
allowed and the impugned judgment dated 04.03.2021 passed by
learned Special Judge, Protection of Children from Sexual Offences
Act Cases, 2012 & Commission for Protection of Child Right Act,
2005, Merta, District Nagaur in Criminal Appeal No.27/2020 (CIS
No.27/2020) titled as (Surendra Mundel Vs. State of Rajasthan &
Ors.) is hereby quashed and set aside and the order dated
21.11.2020 passed by learned Principal Magistrate, Juvenile
Justice Board, Nagaur in Criminal Misc. Case No.NIL/2020 titled as
(State of Raj. Vs. Mahipal @ Mahipal Tetarwal) arising out of FIR
No.47/2020 registered at Police Station Merta Road, District
Nagaur is restored. It is made clear that this order shall not
prejudice the learned court while exercising any power under
Section 15 of the Act of 2015. Stay petition stands disposed of.
(DR.PUSHPENDRA SINGH BHATI),J.
85-Zeeshan
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