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Allahabad High Court · body

2010 DIGILAW 3443 (ALL)

Prince Yadav v. State Of U. P.

2010-11-09

SHRI KANT TRIPATHI

body2010
JUDGMENT: 1. Heard Mr. Anoop Trivedi for the revisionist and the learned AGA for the respondent and perused the record. 2. This is a criminal revision against the judgement and order dated 29.3.2010 passed by the Juvenile Justice Board, Agra (in short 'the Board'), in the case crime no. 365/2009, under sections 201, 411, 302, 364, and 394 IPC, Police Station Tajganj, District Agra. 3. With the consent of the counsel for the parties, the present revision is being disposed of at the stage of admission. 4. The facts of the case are that the revisionist, who is an accused in the aforesaid case, moved an application for declaring him as a juvenile. On 2.9.2009, both the non-judicial members declared the revisionist as a juvenile against which the criminal appeal no. 168 of 2009 was filed, which was allowed by the appellate court on the ground that presence of Principal Magistrate was necessary in the Board. The order passed by the members of the Board without the presence of the Principal Magistrate could not be said to be in accordance with law. Accordingly the appellate court remanded the matter to the Board for a fresh decision. After the remand, the Board passed the order dated 29.3.2010. On that date, the Board comprised of Mr. Siddharth Singh as the Principal Magistrate, and Mr. Tikam Singh and Raj Kumari Sharma as Members. Mr. Tikam Singh was on leave, therefore, the proceeding was held by Mr. Siddharth Singh, the Principal Magistrate, and Ms. Raj Kumari Sharma, Member. The Principal Magistrate was of the view that the revisionist was not a juvenile on the date of the occurrence. Accordingly he rejected the application moved by the revisionist. The Principal Magistrate disbelieved the school record entry on the ground that the entry was made on the basis of the information furnished by the maternal grand father of the revisionist and not by his father. The learned Principal Magistrate further held that ordinarily in the school record lesser age is shown. It may however, be mentioned that the school record was proved by Principal Lakshman Singh, who had appeared as a witness. The learned Principal Magistrate, instead of placing reliance on school record, placed reliance on the medical opinion and arrived at the conclusion that the revisionist was not a juvenile on the date of occurrence. The Member Ms. It may however, be mentioned that the school record was proved by Principal Lakshman Singh, who had appeared as a witness. The learned Principal Magistrate, instead of placing reliance on school record, placed reliance on the medical opinion and arrived at the conclusion that the revisionist was not a juvenile on the date of occurrence. The Member Ms. Raj Kumari Sharma, on the other hand, passed a separate order holding that the revisionist was a Juvenile. The third member was on leave on 29.3.2010, therefore, his opinion could not be taken. 5. Mr. Anoop Trivedi submitted that the school record entry relied on by the revisionist was duly proved by the Principal Laxman Singh, therefore, the learned Principal Magistrate should not have discarded the school record entry only on the ground that the guardian of the revisionist was not examined. Mr. Trivedi further submitted that if statement of the father or guardian of the revisionist was necessary the Board should have summoned him as a witness. Without doing so it was not proper to discard the school record entry. It was also submitted that the school record entry was made on the basis of the information furnished by the maternal grandfather of the revisionist, who being father of the mother of the revisionist, was one of the natural persons for disclosing the date of birth of the revisionist, therefore, the school record entry, which was made much prior to the occurrence of the case, was a material piece of evidence, specially when there was no possibility that the school record entry was got prepared for the purposes of the case. The learned Principal Magistrate committed gross error of law in discarding the school record entry. It was further submitted that the learned Principal Magistrate further committed error of law in holding that the school record entry was not relevant for deciding the age of the revisionist. The cases relied on by him in support of his finding are not applicable to the facts of the present case. It was also submitted that if the school record entry was not believable, the medical opinion which was on record ought to have been accepted with a variation of one year. Mr. The cases relied on by him in support of his finding are not applicable to the facts of the present case. It was also submitted that if the school record entry was not believable, the medical opinion which was on record ought to have been accepted with a variation of one year. Mr. Trivedi further submitted that rule 22(5) of The Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004 (in short 'the Rules'), provides as to how the question of juvenility is to be determined but the learned Principal Magistrate ignored the said rule and proceeded to determine the age of the revisionist against the rules. Mr. Trivedi further submitted that the impugned order dated 29.3.2010 has been passed only by the Principal Magistrate and other members have not signed the order, therefore, the impugned order is illegal. 6. Before entering into the merits of the case it seems to be just and expedient to see whether or not the order dated 29.3.2010 passed by the learned Principal Magistrate is the order of the Board. Section 5 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short 'the Act'), deals in regard to the functioning of the Board. Section 5 reads: "5. Procedure, etc., in relation to Board.-(1) The Board shall meet at such times and shall observe such rules of procedure in regard to the transaction of business at its meetings, as may be prescribed. (2) A child in conflict with law may be produced before an individual member of the Board, when the Board is not sitting. (3) A Board may act notwithstanding the absence of any member of the Board, and no order made by the Board shall be invalid by reason only of the absence of any member during any stage of proceedings: Provided that there shall be at least two members including the principal Magistrate present at the time of final disposal of the case. (4) In the even of any difference of opinion among the members of the Board in the interim or final disposition, the opinion of the majority shall prevail, but where there is no such majority, the opinion of the principal Magistrate shall prevail." 7. (4) In the even of any difference of opinion among the members of the Board in the interim or final disposition, the opinion of the majority shall prevail, but where there is no such majority, the opinion of the principal Magistrate shall prevail." 7. In view of the provisions extracted above, the Board may act even in absence of any Member and no order can be held to be invalid only on the ground of absence of any Member of the Board. But presence of at least two members is necessary out of which one must be the Principal Magistrate, at the time of final disposal. In other words, if the Principal Magistrate and one other member are present and proceeding is held and order is passed by them, the order can not be held to be invalid on the ground that the other member was not present. Sub-section (4) of section 5 of the Act provides as to how the matter is to be dealt with if there is any difference of opinion. If there is any difference of opinion amongst the members of the Board, the opinion of majority shall prevail. But when there is no such majority, the opinion of the Principal Magistrate shall prevail. In the present matter, only the Principal Magistrate and member Ms. Raj Kumari Sharma were present on 29.3.2010. They heard the matter and passed the order. Member Mr. Tikam Singh was on leave. The Principal Magistrate held that the revisionist was not a juvenile where as the other member Ms. Raj Kumari Sharma was of the view that the revisionist was a juvenile on the date of occurrence. In view of the fact that one Member was on leave on 29.3.2010 and the Principal Magistrate and other Member Ms. Raj Kumari Sharma diferred in their opinion, therefore, there was no question of majority opinion and as such the opinion of the Principal Magistrate would prevail over the opinion of the non-judicial Member, therefore, the order of the Principal Magistrate, in view of section 5 of the Act, is the order passed by the Board. Therefore, I do not find any substance in the contention that the order of the Principal Magistrate is not the order of the Board. 9. Therefore, I do not find any substance in the contention that the order of the Principal Magistrate is not the order of the Board. 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." 10. 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 & Anr, 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 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. 11. 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. 12. In view of the aforesaid rule, the Board should have given due consideration to the school record entry which was proved by the Principal. If it was necessary to find out genuineness of the entry and its source, the Board should have summoned the maternal grandfather of the revisionist or any other natural guardian of the revisionist for proving the same. If it was necessary to find out genuineness of the entry and its source, the Board should have summoned the maternal grandfather of the revisionist or any other natural guardian of the revisionist for proving the same. The Principal Magistrate has committed gross error of law in holding that the school record entry was not relevant for deciding the age of the revisionist specially when rule 22 (5) of the Rules provides that date of birth recorded in the school is a relevant piece of evidence. It appears that rule 22(5) of the Rules was not in the mind by the Principal Magistrate while considering the plea of juvenility and holding the enquiry in this regard. He proceeded the matter as if he was holding an enquiry with the assumption that there was no rule to provide as to how the question of juvenility is to be determined and enquiry is to be held for such determination. The rule itself speaks that if there is no school record entry or the birth certificate given by a corporation or a municipal authority, the medical opinion by a duly constituted medical board subject to a margin of one year is relevant for determining the question of juvenility by the Board. The learned Principal Magistrate failed to consider the medical opinion in its correct perspective. According to the medical opinion, the age of the revisionist was eighteen years on 11.6.2009, i.e. the date of x-ray whereas the occurrence took place on 4.4.2009. On x-ray of the elbow joints, ends of radius and ulna joint were found fused but end of clerick were not united. In this view of the matter, the doctor opined that the revisionist was aged about 18 years and by appearance his age was assessed to be nineteen years. The medical report ought to have been given due consideration in the light of school record entry specially when the school record entry was made much prior to the occurrence of this case and there was not a least possibility to fabricate the same. The medical report ought to have been given due consideration in the light of school record entry specially when the school record entry was made much prior to the occurrence of this case and there was not a least possibility to fabricate the same. Of course the school record entry could be discarded if it was fabricated or forged document manufactured for the purposes of claiming juvenility but when the school record entry was made much prior to the date of occurrence in question and there was no fabrication or interpolation, it ought not to have been rejected on the ground recorded by the Principal Magistrate. 13. For the reasons discussed above, I am of the opinion that the learned Principal Magistrate has failed to consider the question of juvenility in its correct perspective. Therefore, the impugned order has occasioned failure of justice in the case. The matter needs to be thoroughly probed in accordance with the rules, therefore, the revision is allowed. The impugned order dated 29.3.2010 is set aside. The learned Board is directed to re-consider the matter in the light of the observations made herein before and pass a fresh order in accordance with law.