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2011 DIGILAW 4 (ALL)

RAM SAJIVAN v. STATE OF U. P.

2011-01-03

S.C.AGARWAL

body2011
JUDGMENT Hon’ble S.C. Agarwal, J.—This revision under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (here-in-after referred to as the ‘Act’) is directed against the order d ated 24.7.2010 passed by Addl. Sessions Judge/ F.T.C., Sant Kabir Nagar in Sessions Trial No. 84 of 2008, State v. Ram Prakash and others, under Sections 498A, 304B IPC and ¾ D.P. Act, P.S. Dudhara, District- Sant Kabir Nagar, whereby the application of accused-revisionist Ram Sajiwan for declaring him a juvenile and for sending his case to the Juvenile Justice Board was rejected. 2. Heard Sri R. N. Rai, learned counsel for the revisionist, learned A.G.A. for the State and perused the material available on record. The revisionist Ram Sajiwan is an accused in the aforesaid sessions trial. An application was moved on his behalf for declaring him to be a juvenile on the ground that incident took place on 3.4.2008 whereas his date of birth recorded in the High School Mark-sheet is 14.4.2010 and therefore he was a juvenile on the date of incident and his case be referred to Juvenile Justice Board for trial. 3. Earlier the application was dismissed by learned Sessions Judge vide order dated 11.5.2010, which was challenged by the revisionist by means of Criminal Revision No. 2357 of 2010, which was allowed. The order dated 11.5.2010 was set aside and learned Sessions Judge was directed to pass afresh orders in light of relevant rules. Again the application of the revisionist has been dismissed by learned Sessions Judge vide order dated 24.7.2010. Hence this revision. 4. Learned counsel for the revisionist submitted that learned Addl. Sessions Judge placed undue reliance on the testimony of the mother of the revisionist, who is an illiterate lady and has no orientation of time. The contention is that the learned Addl. Sessions Judge has placed reliance on medical opinion whereas in accordance with Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the ‘Rules 2007’). Preference has to be given to High School Certificate and the Mark-sheet and medical opinion can only be preferred if the evidence regarding educational certificate or local authority is not available. 5. Learned AGA supported the impugned order. Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 provides as under : “12 (3). Preference has to be given to High School Certificate and the Mark-sheet and medical opinion can only be preferred if the evidence regarding educational certificate or local authority is not available. 5. Learned AGA supported the impugned order. Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 provides as under : “12 (3). Procedure to be followed in determination of Age.—(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.” 6. It is apparent from the aforesaid rule that the age of the accused shall be determined on the basis of matriculation or equivalent certificate if available, and in absence thereof, on the basis of date of birth recorded in the school first attended and in the absence thereof, on the basis of birth certificate given by the Corporation or Municipal Authority or a Panchayat and only in the absence of these three certificates, on the basis of medical opinion of a duly constituted medial board. 7. Learned Addl. Sessions Judge disbelieved the High School Mark-sheet on the basis of oral evidence of mother of the revisionist as well as the statement of the revisionist and relied upon the medical report. The reliance has been placed on the statement of mother of the revisionist Smt. Prema Devi, who stated that she was 55 years of age. She had no recollection of her marriage. Gauna ceremony was performed 15 years ago. She has four children. The elder son is aged about 35 years and youngest daughter is aged about 25 years. On the basis of this statement, learned Addl. Sessions Judge came to the conclusion that the children of Smt. Prema Devi are aged between 25 to 35 years and therefore the age of the applicant must be more than 25 years. Learned Addl. Sessions Judge ignored the statement of Smt. Prema Devi wherein she stated that her gauna was performed about 15 years ago. If gauna was performed about 15 years ago, her sons and daughter could not have been more than 15 years of age. It is evident from the above statement that Smt. Prema Devi has no orientation of time and her statement cannot be relied upon by learned Addl. Sessions Judge to discredit the Educational Certificate or Mark-sheet. 8. Learned Addl. Sessions Judge also relied on the statement of revisionist Ram Sajiwan wherein he stated that her sister Sheela Devi was married about 10 years ago and his age was about 11-12 years at the time of marriage of Sheela and therefore his age must be about 21-22 years at the time of his statement. In my opinion, the learned Addl. Sessions Judge adopted every tactic to negate the purpose of enacting the Juvenile Justice Act and deliberately ignored the provisions of Rule 12 (3) of the Rules, 2007. In my opinion, the learned Addl. Sessions Judge adopted every tactic to negate the purpose of enacting the Juvenile Justice Act and deliberately ignored the provisions of Rule 12 (3) of the Rules, 2007. Without any evidence, he ignored the High School Mark-sheet on the ground that normally parents, at the time of admission of their child in school, do not disclose correct date of birth. In my opinion, there is no such general presumption. Learned Addl. Sessions Judge also found that the High School Mark-sheet filed by the applicant was only a photo-stat copy and was not certified by any authorised person and has not been duly proved. In this respect, learned counsel for the revisionist submitted that under Section 7A of the Act, it was a duty of the learned Sessions Judge to take all such evidence, which was necessary for deciding the age of the accused on the date of the offence. 9. 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.” It is apparent from the above provisions that for conducting an enquiry under Section 7A of the Act, a Judge or the Board is not a moot spectator or a referee between two parties, but should adopt an active role and must take all such evidence, which may be necessary for just decision on the point of determination of the age of the accused on the date of offence. If learned Sessions Judge was not satisfied with the certificate or the Mark-sheet, he could have summoned the relevant school authorities or the authorities of the Board of High School and Intermediate Examination to summon the documents relating to date of birth of the revisionist. A copy of the High School Mark-sheet cannot be ignored simply on the ground that it has not been proved. Learned Sessions Judge was competent to summon every witness or document to get the same proved in accordance with law. In my considered opinion, learned Sessions Judge ignored his duties provided by Section 7A of the Act and relied on mere technicalities. 10. As already observed above, in accordance with Rule 12 (3) of the Rules, 2007, the age of the accused on the date of offence is to be determined on the basis of matriculation or equivalent certificate and in absence thereof on the basis of date of birth recorded in the school first attended and in the absence thereof on the basis of birth certificate issued by a Corporation or Municipal Authority or a Panchayat and only in the absence of these certificates, medical opinion can be preferred. When the evidence regarding matriculation or equivalent certificate is available, the medical evidence has no relevance. 11. As I have already observed that the statement of Prema Devi cannot be relied upon to discredit the school Mark-sheet as she has no orientation of time. In these circumstances, the impugned order cannot be sustained and is liable to be set aside. When the evidence regarding matriculation or equivalent certificate is available, the medical evidence has no relevance. 11. As I have already observed that the statement of Prema Devi cannot be relied upon to discredit the school Mark-sheet as she has no orientation of time. In these circumstances, the impugned order cannot be sustained and is liable to be set aside. Learned Sessions Judge has also observed that this Hon’ble Court has directed expeditious disposal of the trial while disposing of his bail application and found that the application has been moved simply to nullify the order passed by this Court. This observation is totally absurd. Any observation made by this Court for expeditious disposal of the case does not preclude any party from taking a legal defence available to him in accordance with law. Section 7A specifically provides that plea of juvenility can be raised at any stage. If the learned Sessions Judge is of the view that due to the question of juvenility of the revisionist Ram Sajiwan, trial of other co-accused is delayed, he is free to separate their case and proceed against them in accordance with law but an application under Section 7A of the Act cannot be rejected on the ground that it would delay the disposal of the case. 12. The revision is allowed. The impugned order dated 24.7.2010 passed by the A.S.J/F.T.C. in S.T. No. 84 of 2008 is set aside. Learned Addl. Sessions Judge is directed to dispose of the application for juvenility of the revisionist afresh strictly in accordance with Rule 12 (3) of the Rules, 2007 and observations and directions given in this judgment. If the Addl. Sessions Judge is of the opinion that the photo-stat copy of the Mark-sheet is not admissible in evidence, he is directed to summon the relevant authorities and record from the High School Board as well as the school/college so that the document may be proved, irrespective of the fact that the revisionist applied for the same or not, as it is duty of the Court concerned to take all such evidence, which is necessary for just decision of the case. ——————