Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 2502 (ALL)

SAKET KUMAR @ BABLU v. STATE OF U. P.

2010-08-17

SHRI KANT TRIPATHI

body2010
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard learned counsel for the revisionist and learned AGA for the State. 2. This is a revision against the order dated 20.9.2008 passed by the Additional Sessions Judge/ F.T. C. No. Ist, Banda in misc. case No. 5/XII/08 arising out of S.T. No. 77 of 2002 (State v. Raju and others). 3. It appears that the revisionist-Saket Kumar @ Bablu moved an application for declaring him as a juvenile. The learned Additional Sessions Judge registered the application as a misc. case and proceeded to hold an inquiry. During the inquiry witnesses Ram Baran Singh Chauhan (CW-1), the principal of Saraswati Gyan Mandir, Sitamau, District Mandsaur, M.P. and Ashok Kumar (CW-2) an Assistant Teacher in the Madhusudan Das Inter College, Jaspura, Banda were examined. For the determination of the revisionist’s age, his medical examination was also done. 4. The occurrence took place on 7.10.2001. It was therefore necessary and expedient to decide the question as to what was the age of the revisionist on the date of the occurrence. According to the school record, the revisionist’s date of birth is 9.8.1984. Therefore, he was less than 18 years on the date of the occurrence. According to the medical report, the revisionist was found aged about 24 years on the date of the medical examination i.e. 29.2.2008, and accordingly he was less than 18 years on the date of the occurrence. 5. Learned counsel for the revisionist submitted that the learned Additional Sessions Judge disbelieved the aforesaid evidence on the ground that the age disclosed by the revisionist during his examination under Section 313 Cr.P.C. was somehow different and on the basis of that disclosure which was made on 12.10.2006, the revisionist was held more than 18 years on the date of the occurrence. The learned Additional Sessions Judge further found that the revisionist had not claimed juvenility in the bail application dated 22.10.2001 moved by him. 6. The question of juvenility can be raised at any stage even at the stage of appeal or revision. Therefore, if the revisionist had not been claimed juvenility in the bail application, it was not material at all for discarding his plea that he was juvenile on the date of the occurrence. 7. The age disclosed by the revisionist during his examination under Section 313 Cr.P.C. on 12.10.2006 was merely his approximate age. Therefore, if the revisionist had not been claimed juvenility in the bail application, it was not material at all for discarding his plea that he was juvenile on the date of the occurrence. 7. The age disclosed by the revisionist during his examination under Section 313 Cr.P.C. on 12.10.2006 was merely his approximate age. Therefore, the same ought not to have been treated as his exact age for arithmetically calculating the applicant’s age on the date of occurrence. 8. After excluding the statement of the revisionist under Section 313 Cr.P.C. and omission of his part to claim juvenility in the bail application, there remains the medical evidence and the school record, on which basis the revisionist’s plea for declaring him as a juvenile was to be decided. 9. The Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004 have been framed, which deal with the various matters relating to the Juveniles. The Rule 22 (5) of the said rules is the relevant Rule 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, recorded a finding in respect of his case.” A similar set of rules have also been framed in the State of Jharkhand, which have been referred to in the case of Babloo Pasi v. State of Jharkhand and another, 2009 (64) ACC. 754. 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 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 the Medical Board’s 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. 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 which is controvertible, may be taken into consideration. While considering the medical opinion, a margin of one year for determining the age may be given. 10. Apparently, the learned Additional Sessions Judge has not proceeded to determine the question of juvenility of the revisionist in accordance with the aforesaid Rule 22 (5). When the entry in the school record was placed before the learned lower Court, it should have given due consideration to that entry. In case the school record entry was forged and was not genuine and no birth certificate given by the Corporation or Municipality was produced, the proper course for the lower Court was to consider the medical opinion subject to a margin of one year. In case the school record entry was forged and was not genuine and no birth certificate given by the Corporation or Municipality was produced, the proper course for the lower Court was to consider the medical opinion subject to a margin of one year. But all these relevant materials have been kept aside and the question of juvenility has been decided on altogether irrelevant materials. Therefore, the impugned order cannot be sustained. 11. The revision is, therefore, allowed and the impugned order dated 20.9.2008 is set aside. The learned Additional Sessions Judge, Banda is directed to decide the question of juvenility afresh in the light of the observations made hereinbefore and pass a fresh order in accordance with law. ————