Research › Search › Judgment

Uttarakhand High Court · body

2010 DIGILAW 426 (UTT)

PHOOL CHANDRA CHAUHAN v. STATE OF UTTARANCHAL

2010-07-06

DHARAM VEER

body2010
JUDGMENT HON. DHARAM VEER, J. This criminal application, moved u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) is directed for quashing the order dated 19.11.2004 passed by the Juvenile Justice Board, Nainital in Bail Application No. 230-A/2004, State Vs. Ram Ashish and judgment and order dated 8.4.2005 passed by the Sessions Judge, Nainital in Cri. Revision no. 10/2005, Phool Chandra Chauhan Vs. State of Uttaranchal & another. 2. Heard learned counsel for the parties and perused the material on record. 3. In brief, the case of the complainant is that the respondent no. 2-Ramashish @ Balri was not Juvenile on the date of the accident and the Juvenile Justice Board had wrongly declared him juvenile. 4. From a perusal of the judgment of the Juvenile Justice Board, it reveals that the date of birth of respondent no.2 is 15.7.1990 and he was 15 years and 3 ½ months’ of age on the date of incident on which the case was registered against him under Section 394/302 IPC at PS Haldwani. Along with the petition, a certificate (Annexure 4) has also been filed of respondent no.2, on the basis of which he was declared juvenile by the Juvenile Justice Board which has been issued by the Principal, Progressive Montessary Primary School, Haldwani (Nainital) in which the date of birth of respondent no.2 has been mentioned as “15.7.1990”. It was argued by learned counsel for the respondent no. 2 that the said certificate is of the First School attended by the respondent no. 2 and the Juvenile Justice Board had declared him juvenile as per Rule 22 of the Uttaranchal Juvenile Justice {Care and Protection of Children} Rules 2002. It was argued by learned counsel for the respondent no. 2 that the said certificate is of the First School attended by the respondent no. 2 and the Juvenile Justice Board had declared him juvenile as per Rule 22 of the Uttaranchal Juvenile Justice {Care and Protection of Children} Rules 2002. Rule 22(5) of the said Rules is relevant to mention here which is 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. 5. Mr. Amit Kapri, Adv. Appearing for the applicant argued that as per the certificate issued by the Chief Medical Officer, Nainital, the age of the respondent no.2 is above 18 years. On the other hand, learned counsel appearing for the respondent no.2 argued that as per Rule 22(5) quoted above, in case a date of birth certificate from the school first attended is not available, then only the medical opinion can be taken into consideration. As in the present case, the certificate of the first attended school of respondent no.2 is available in which his date of birth is shown as 15.7.1990, then there is no occasion to look forward to the medical opinion. He further submitted that as per the certificate of first school attended by the respondent no.2, his date of birth is 15.7.1990 which comes out to 15 years and 3 ½ months on the date of incident, i.e. below 18 years and as such he was a juvenile on the date of incident. The term ‘Juvenile’ has been defined in Section 2(k) of the Juvenile Justice {Care and Protection of Children} Act, 2000, which provides that “juvenile” or “child” means a person who has not completed eighteenth year of age”. 6. The term ‘Juvenile’ has been defined in Section 2(k) of the Juvenile Justice {Care and Protection of Children} Act, 2000, which provides that “juvenile” or “child” means a person who has not completed eighteenth year of age”. 6. After hearing the learned counsel for the parties, perusing the documents filed by the petitioner as well by the respondent no. 2, it reveals that on the basis of the date of birth certificate from the first school attended by the respondent no. 2 i.e. Principal, Progressive Montessary Junior High School, Haldwani, the date of birth of respondent no.2 is 15.7.1990 and on the date of incident his age was 15 years 3 ½ months and as such, the respondent no.2 was Juvenile on the date of incident. Further, the medical certificate issued by the CMO, Nainital cannot be taken into consideration in view of Rule 22 (5) of the Uttaranchal Juvenile Justice {Care and Protection of Children} Rules 2002, as quoted above. As such, the judgment and order passed by the courts below are correct and justified on the basis of evidence produced before them and the impugned orders do not require any interference by this Court as the judgments and orders on merit are correct and justified. It is most significant to mention here that the revision was not maintainable before the Sessions Judge rather only the appeal u/s 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 was maintainable inasmuch the Revision is maintainable before the High Court u/s 53 of the aforesaid Act. 7. For the reasons as aforesaid, the petition is devoid of merits and is accordingly dismissed. Interim order dated 1.9.2005 is vacated.