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2009 DIGILAW 3127 (ALL)

MOHD. AZAD ALAM v. STATE OF U. P.

2009-09-14

SHRI KANT TRIPATHI

body2009
JUDGMENT Hon’ble Shri Kant Tripathi, J.—The revisionist Mohd. Azad Alam has preferred this revision against the order dated 4.8.2009 passed by Shri Ram Raj Ram, Additional Sessions Judge/Fast Track Court No. 3, Maharajganj in Criminal Misc. Case No. 6 of 2009, whereby the learned Additional Sessions Judge has held that the revisionist was not juvenile under The Juvenile Justice (Care and Protection of Children) Act, 2000, on the date of occurrence and rejected the application moved by revisionist’s father for declaring the revisionist as juvenile. 2. I have heard the learned counsel for the revisionist and the learned AGA and perused the impugned order. 3. It appears that the revisionist is facing trial in the case crime No. 1090 of 2008 under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, police station Sonauli, district Maharajganj. His father Mahmood Mian moved an application before the Court concerned for declaring him juvenile. It was stated on behalf of the revisionist that the revisionist was juvenile on the basis of his date of birth recorded in the school record, according to which the date of birth of the revisionist is 20.7.1995. The statement of the revisionist’s father DW-1 Mahmood Mian as well as DW-2 Awadhesh Kumar Srivastava, a school teacher, were recorded during the inquiry. The statement of DW-2 Awadhesh Kumar Srivastava was recorded on the basis of the original school record. It may be mentioned that the learned lower Court had also obtained opinion of the Chief Medical Officer, Maharajganj, who opined that the revisionist was aged about. 4. The learned lower Court disbelieved the entries made in the school record on the ground that ordinarily lesser age is shown in the school record for obtaining several benefits and as such it was not relevant for determining the age of the revisionist. The learned lower Court further held that entries made in the school record were not based on any verified fact and were based on mere oral assertion of the revisionist’s father at the time of revisionist’s admission in the school. The learned lower Court believed the medical opinion and held that the revisionist was major aged about 17-18 years on the date of occurrence. 5. The learned counsel for the revisionist submitted that the learned lower Court has committed material illegality in ignoring the entries made in the school record regarding the date of birth of the revisionist. The learned lower Court believed the medical opinion and held that the revisionist was major aged about 17-18 years on the date of occurrence. 5. The learned counsel for the revisionist submitted that the learned lower Court has committed material illegality in ignoring the entries made in the school record regarding the date of birth of the revisionist. It was further submitted that the school record ought to have been given preference over the medical evidence which was merely an opinion. 6. The Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004 has been framed, which deals with the various matters relating to the juvenile. The Rule 22 (5) of the said rules are the relevant rules for the purposes of determining the age of the person, who claims himself as a juvenile. The learned lower Court has not considered the provisions of Rule 22 (5) of the said Rules while passing the impugned order and has overlooked the same. Rule 22 (5) of the said Rules is being reproduced as follows : “22 (5) In every case concerning a juvenile or child, the Board shall either obtain— (i) a birth certificate given by a corporation or a municipal authority; or (ii) a date of birth certificate from the school first attended; or (iii) matriculation or equivalent certificates, if available; and (iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding his age; and, when passing orders in such case shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be, record a finding in respect of his age." 7. A similar set of rules have also been framed in the State of Jharkhand, which has been referred to in the case of Babloo Pasi v. State of Jharkhand and another, 2009 (64) ACC 754. In other words, Rule 22 (5) of the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004 is pari materia with Rule 22 (5) of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003. In other words, Rule 22 (5) of the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004 is pari materia with Rule 22 (5) of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003. In the case of Babloo Pasi (supra) the Apex Court has interpreted Rule 22 (5) of the Jharkhand rules and held that in the absence of birth certificate given by a corporation or a municipal authority or date of birth certificate from the school first attended or the Matriculation or equivalent certificate, the medical opinion by a duly constituted Board subject to the margin of one year, in deserving cases shall be relevant for determining the age of the alleged juvenile but the medical opinion per se is not a conclusive proof of the age of the person concerned and it is merely an opinion. The Apex Court further held that it would be imprudent to formulate a uniform standard for the determination of the age. True, that the Medical Boards opinion based on radiological examination is a useful guiding factor for determination of the age of a person but is not incontrovertible. The date of birth is to be determined on the basis of material on record and appreciation of the evidence adduced by the parties. 8. Under the rule 22(5) of the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004 the date of birth certificate issued by a corporation or a municipal authority or school is the relevant material for determining the age of the person who claims to be a juvenile. In absence of these materials, the medical opinion may be taken into consideration keeping in view the facts and circumstances of the case and other evidence on record. If the medical opinion is in consonance with other evidence on record, the same may be acted upon for determining the age of the alleged juvenile provided there is no date of birth certificate issued by a corporation or municipal authority or school. While considering the medical opinion, a margin of one year for determining the age may be given. In other words, if the medical opinion indicates that the age of a particular person is 18 years, that person may be held to be the age of 19 years as, well as of 17 years. While considering the medical opinion, a margin of one year for determining the age may be given. In other words, if the medical opinion indicates that the age of a particular person is 18 years, that person may be held to be the age of 19 years as, well as of 17 years. It is also well settled that where two conclusions are possible, the conclusion in favour of the accused has to be given preference. 9. In view of the aforesaid principles as well as the provisions of Rule 22 (5), the view of the learned lower Court that the school record has no significance for determining the age of the revisionist is absolutely illegal. When the school record was available showing the date of birth of the revisionist and DW-2 Awadhesh Kumar Srivastava had proved the school record, which was based on the information submitted by the revisionist’s father, the learned lower Court was not justified in placing reliance on the medical opinion. If there has been no school record regarding the date of birth of the revisionist, in that even alone, the medical evidence was relevant. If the school record is available I the medical evidence has no relevancy. It may also be mentioned that statement of DW-2 Awadhesh Kumar Srivastava that the date of birth of the revisionist was recorded in the school record as per the information furnished by the revisionist’s father, which was given much before the occurrence in question. In regard to the date of birth of a person, the statement of parent is very relevant and the same can not be discarded lightly. When Rule 22(5) of the Rules has provided that the school record shall be given preference over the medical evidence, there was no justification to ignore the entries made in the school record. 10. In the case of Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh and another, (2009) 6 SCC 681 , the Apex Court held that the date of birth recorded in the school certificate is an important piece of evidence for determining the date of birth. 11. For the reasons discussed above, the revision is allowed and the impugned order dated 4.8.2009 is set aside. 11. For the reasons discussed above, the revision is allowed and the impugned order dated 4.8.2009 is set aside. The learned Additional Sessions Judge is directed to re-consider the question of juvenility of the revisionist in the light of the observations made hereinbefore and pass appropriate order in the matter in accordance with law after providing a reasonable opportunity of hearing to the parties. ————