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Allahabad High Court · body

2010 DIGILAW 3075 (ALL)

Tribhuwan Yadav v. State of U. P.

2010-10-04

S.C.AGARWAL

body2010
JUDGMENT: S.C. Agarwal, J. Case taken up in the revised list. Sri K.D. Tiwari, advocate is present for the revisionist. Learned counsel for opposite party no.2 is not present. Counter affidavit on behalf of the State has been filed earlier. Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the material available on record. This criminal revision is directed against the order dated 11.3.2010 passed by Addl. Sessions Judge, Court No.10, Allahabad in S.T. No.189 of 1987 (State Vs. Tribhuwan Yadav & others) whereby, application 74 kha filed by accused - revisionist Tribhuwan Yadav for declaring him to be a juvenile and to summon the relevant records from the college was rejected. The application 74 kha was filed on the ground that the date of birth of the revisionist was 11th January, 1970 according to transfer certificate and scholar register of R.P. Rastogi College, Gandhi Nagar, Malak Harhar, Allahabad and on the date of incident i.e. on 2nd November, 1985, the revisionist was aged about 15 years and was a juvenile. 2. Without calling the parties to lead evidence and without giving any opportunity to the revisionist and the State to lead evidence on the point of juvenility, learned Sessions Judge rejected the application 74 kha on the ground that earlier also on 28.2.2004, a similar application was moved by the revisionist and the revisionist was ordered to obtain dasti summons, but steps were not taken and the application was rejected. Learned trial court noted various deficiencies and disbelieved the copy of transfer certificate on the basis of a decision of the Apex Court in the case of Brij Mohan Singh Vs. Priya Brat Narain Sinha & others, A.I.R. 1965 Supreme Court 282 (V 52 C51) and opined that generally the parents, while admitting the child in the school, deliberately mention the age of the child to be less than the actual age with a view to take benefit in future in employment etc. Learned Sessions Judge also observed that the date of birth mentioned in the school register cannot be relied, as the same is not prepared by a public servant in due discharge of his duties. 3. Learned Sessions Judge also observed that the date of birth mentioned in the school register cannot be relied, as the same is not prepared by a public servant in due discharge of his duties. 3. Learned counsel for the revisionist submitted that in view of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 'Act'), the plea of juvenility may be raised before any court at any stage and the trial court is bound to hold inquiry, as envisaged under Section 7A of the Act. Section 7 A of the Act provides as under : "7A. Procedure to be followed when claim of juvenility is raised before any court.-- (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect." 4. It is clear from the above provision that whenever a claim of juvenility is raised before any Court, that Court is bound to hold an inquiry and take all such evidence, as may be necessary (but not on affidavit) so as to determine the age of such person and shall record a finding whether the person is juvenile or a child or not, stating his age as clearly as may be. 5. 5. In the instant case, learned Sessions Judge did not hold any inquiry. A copy of transfer certificate and scholar register was filed by the revisionist before the Sessions Judge and learned Sessions Judge, without holding any inquiry, disbelieved the date of birth recorded in the transfer certificate on the ground that generally people record the age of their child less than actual while admitting their child in school. There is no such general presumption. When a plea of juvenility is raised before any court, that court is bound to hold an inquiry in accordance with the provisions of Section 7A of the Act and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 'Rules 2007'). Rule 12 of the Rules 2007 provides as follows : "12. Procedure to be followed in determination of Age.-- (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-- (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (I), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his / her age on lower side within the margin of one year. and, while 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 and either of the evidence specified in any of the clauses (a) (i), (ii) (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law. 6. As per Rule 12 of the Rules 2007, the age of the accused has to be determined on the basis of matriculation certificate or equivalent certificate or on the basis of date of birth recorded in the school first attended or on the basis of date of birth recorded in the Municipal records etc. 6. As per Rule 12 of the Rules 2007, the age of the accused has to be determined on the basis of matriculation certificate or equivalent certificate or on the basis of date of birth recorded in the school first attended or on the basis of date of birth recorded in the Municipal records etc. and in the absence of above three certificates, age has to be determined on the basis of a certificate of the Medical Board constituted for the purpose of ascertaining the age of the accused. Learned Sessions Judge neither held any inquiry, as envisaged under section 7A of the Act nor the accused was referred to a duly constituted Medical Board to ascertain his age. No opportunity of leading evidence was provided to the accused. I may remind the trial court that it is not the duty of accused alone to provide or to produce all the evidence, as an inquiry officer, it is the duty of the court also to obtain and summon all such evidence which may be necessary for just decision on the point in issue i.e. the age of the accused on the date of the offence. Learned trial judge did not hold any inquiry and did not provide any opportunity to the revisionist to lead evidence in support of his claim for juvenility, even his application for summoning the relevant records from the school was rejected by learned Sessions Judge. Obviously, the learned trial judge was prejudiced against the revisionist and even did not bother to hold a proper inquiry, which caused grave injustice to the revisionist. The impugned order dated 11.3.2010 passed by learned Addl. Sessions Judge clearly violated the spirit of the provisions of Juvenile Justice Act and the purpose, for which the such Act was enacted, has been defeated. The impugned order is patently illegal and is liable to be set-aside. In view of the observations made above, the revision is allowed. 7. Impugned order dated 11.3.2010 is set-aside. Learned Addl. Sessions Judge is directed to hold an inquiry in accordance with Section 7A of the Act and to reach a conclusion regarding age of the revisionist on the date of the offence in accordance with the provisions of Rule 12 of the Rules 2007. The opportunity to lead evidence shall be provided to the revisionist, the State and the complainant also, if he so desires. The opportunity to lead evidence shall be provided to the revisionist, the State and the complainant also, if he so desires. The evidence shall not be taken on affidavits. Trial court may also order medical examination of the revisionist by a duly constituted Medical Board and thereafter he shall take appropriate decision in accordance with law.