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2006 DIGILAW 1251 (MP)

Sanjay v. State of M. P.

2006-11-07

RAKESH SAKSENA

body2006
ORDER 1. Heard on IA No.10563/06 which is an application for condonation of delay in filing the revision. 2. As per office report, this revision is barred by 549 days. Learned counsel for the applicant submits that the applicant is a young boy of 17-18 years of age. He has been arrested in case under the NDPS Act. Applicants' father is an illiterate person and belongs to poor class of society and is resident of villge Jaipuram of District Warangal (A.P), so he could not arrange for filing the revision against the impugned order within prescribed period of limitation. He submits that the application for condonation should be considered liberally because the revision involves the question of age of Juvenile who is in custody. 3. Considering the submissions made by the learned counsel for the applicant and the averments made in the application which have been duly supported by the affidavit of the father of the applicant, this application is allowed. Delay in filing the revision is condoned. 4. With the consent of the parties, revision is heard finally. 5. Applicant has filed this revision against the order dated 10.1.2005, passed by Special Judge (NDPS), Damoh, in Special Case No. 7/04, rejecting his prayer for treating him to be a juvenile. 6. Learned counsel for the applicant submits that on 16.7.2004 applicant was arrested by police for an offence under section 8/20 of the NDPS Act. Allegation against the applicant is that he was going on a motorcycle alongwith two other accused persons who were carrying about 50 kgs. of Ganja. Since 16.7.2004 applicant is in custody. Before the trial Court, applicant filed an application claiming himself to be a juvenile. According to him, his date of birth is 18.12.1986. His age being under 18 years at the time of arrest, his trial alongwith other accused persons is not permissible. He claimed to be tried by the competent juvenile Court. 7. Learned trial Court held an enquiry, wherein the applicant produced certificate of his date of birth and Secondary School Certificate, according to which, his date of birth was 18.12.1986. Learned Special Judge directed his medical examination and ossification test. Dr. M.S. Chhabra dentist PW 1 and Dr. R.K. Rawat, radiologist PW 2 examined the applicant. According to Dr. Chhabra, the age of applicant might be 18 or above, whereas according to radiologist Dr. Learned Special Judge directed his medical examination and ossification test. Dr. M.S. Chhabra dentist PW 1 and Dr. R.K. Rawat, radiologist PW 2 examined the applicant. According to Dr. Chhabra, the age of applicant might be 18 or above, whereas according to radiologist Dr. Rawat, his age could be between 17 to 21 years. 8. Learned Special Judge found that the evidence of two doctors was inconsistent, that the name of the applicant in the arrest memo was shown as Sanjay Guguloth, whereas the certificate filed by the applicant purported to be in the name of Ramesh Guguloth son of Chandram and that the parents of applicant were not produced in evidence. 9. In the above position learned trial Judge doubted the claim of applicant to be a Juvenile and rejected the application filed by him. 10. Learned counsel for the applicant submits that there is prima facie material on record to indicate that the age of applicant, at the time of incident was under 18 years and that from the family member certificate issued by Mandal Revenue Officer it has been clearly established that Sanjay carries alias of Ramesh also. He submits that if the evidence adduced before the trial Court gave rise to different probabilities, then the evidence which favoured applicant ought to have been accepted and benefit ought to have been given to applicant by treating him a juvenile. 11. I have perused the impugned order, medical evidence, as well as the school certificate, birth and family certificate of applicant, wherein date of birth has been shown as 18.12.1986. 12. In case of Rajinder Chandra v. State of Chhattisgarh and another [2001 (2) BLJ 181 = 2002 SCC (Cri) 333], apex Court observed: "5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das v. State of Bihar, this Court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court, squarely applies to the facts of the present case". 13. Perusal of the evidence of Dr. Chhabra indicates that the age of applicant, at the time of his medical examination i.e. in the month of November 2004, was eighteen years or above, whereas according to evidence of radiological examination by Dr. Rawat it was between seventeen years to twenty one years. On the basis of divergent opinions, of two doctors, trial Court entertained doubt about the applicant's being Juvenile. Similarly trial Court also doubted the genuineness of the documents filed by the applicant pertaining to his date of birth and rejected his claim of being Juvenile. In the opinion of this Court, the finding arrived at by the Special Judge is based on hypertechnical approach which, in the circumstances of the case, ought not to have been adopted. On the basis of evidence adduced by the applicant, his case appeared to be a border line case. Age of applicant could be below eighteen years as well as above eighteen years, but, in such a situation, in the light of ratio of Rajinder Chandra's case (supra), Court should lean in favour to hold him to be Juvenile. 14. Though the copies of birth certificate and scholl certificate purport to be in the name of Ramesh s/o Guguloth, but from the family member certificate, issued by Mandal Revenue Officer, Maripeda, it transpires that Ramesh and Sanjay are one and the same person. 14. Though the copies of birth certificate and scholl certificate purport to be in the name of Ramesh s/o Guguloth, but from the family member certificate, issued by Mandal Revenue Officer, Maripeda, it transpires that Ramesh and Sanjay are one and the same person. Applicants' parents live in Andhra Pradesh, whereas applicant has been arrested for the alleged offence at Damoh, Madhya Pradesh. It is said that they belong to a poor strata of society. That being so, if applicant could not examine them in the inquiry, Court should not draw any adverse inference against him in the peculiar circumstances of the case and do justice on the available evidence on record. I am of the opinion that from the certificate filed by the applicant, it has been sufficiently borne out that the date of birth of applicant is 18.12.1986 and that he was juvenile on the date of commission of the offence. 15. For the foregoing reasons, this revision is allowed, impugned order passed by the Special Judge is set aside. He is directed to forward the applicant and the record of the proceedings against him to competent authority having jurisdiction under the Juvenile Justice (Care & Protection of Children) Act, 2000, for holding inquiry according to law.