Research › Search › Judgment

Uttarakhand High Court · body

2012 DIGILAW 729 (UTT)

Hema Rawat v. State of Uttarakhand

2012-12-04

SERVESH KUMAR GUPTA

body2012
ORDER Challenge in this petition is to the charge-sheet submitted against the applicant Hema Rawat and her son Mohit Rawat for the offences under Sections 193, 420 read with Section 120 B, IPC on 23.1.2008 pertaining to Crime No. 405/2007 and also the order of cognizance dated 9.5.2008 passed pursuant to the said charge-sheet. 2. Theme of the entire episode as emerging out from the FIR dated 29.6.2007 lodged by Anil Kanti under Section 307, IPC against unknown persons. During the investigation, complicity of Mr. Mohit Rawat was found as an assailant, who opened fire. He was arrested by the police. His juvenility was claimed by his mother stating his date of birth as 3.12.1989. As per the certificate of the Central Board of Secondary Education (CBSE) as well as the marksheet of the said board, his date of birth is 3.12.1989, so he was below 18 years and thus he was declared juvenile and granted bail by the Juvenile Justice Board. 3. Later on his granting bail was agitated by producing an admission form of Mohit Rawat, which was submitted on 3.7.1989 while seeking admission in the Motherland School based at Nehru Gram, Dehradun. So, the argument was raised that a child who was seeking admission in the school on 3.7.1989 cannot be said to have born on 3.12.1989. On this ground, bail granted to Mohit Rawat was cancelled by the Juvenile Justice Board. This order was also affirmed by the Sessions Judge, Dehradun. However, subsequently the accused Mohit Rawat was granted bail by this Court on sundry grounds. 4. In the above backdrop, an application was moved under Section 156(3), Cr.P.C. by Amit Thapar on 5.9.2007 for registration of the case against Hema Rawat and her son Mohit Rawat for the offences under Sections 120B, 420, 467, 468, 471, IPC alleging that they have fabricated a false document in order to secure bail of Mohit Rawat. Learned Magistrate, before making any order of registration of case, directed the police to conduct preliminary enquiry. Enquiry was accordingly done, whereupon it was found that the admission application moved in the Motherland School, bore the date of birth as 3.12.1989 and the date of admission was purportedly written wrong, possibly by clerical error. 5. However, learned Magistrate was not satisfied with the aforesaid enquiry report and he ordered for registration and investigation of the case. Enquiry was accordingly done, whereupon it was found that the admission application moved in the Motherland School, bore the date of birth as 3.12.1989 and the date of admission was purportedly written wrong, possibly by clerical error. 5. However, learned Magistrate was not satisfied with the aforesaid enquiry report and he ordered for registration and investigation of the case. Investigation culminated into submission of charge-sheet, which is impugned in this petition. 6. Learned Counsel for the applicant drawn attention of this Court towards the provisions contained under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. Sub-clause (3) of the said Rule 12 provides the procedure to be followed while determining the age. In the first sequence, it emphasizes that the age shall be determined on the basis of a matriculation or equivalent certificate, if available; and in the absence thereof the date of birth certificate from the school (other than the play school) first attended; and in the absence whereof; ...It means that matriculation or equivalent certificate will have precedence over the certificate of any other school which was first attended by the person. 7. In the present case, the matriculation certificate issued from the CBSE displays the date of birth of Mohit Rawat as 3.12.1989. Matriculation examination was attended by him in March, 2003. So is the date of birth recorded in his mark-sheet issued by the Board as well as in the school transfer certificate. These papers are annexed at pages starting from 18 to 20 of this petition. 8. In above view of the matter, the admission form submitted in the Motherland School has the secondary value, and more- so when the date of birth of Mohit Rawat written in the certificate is no different from his date of birth recorded in the matriculation certificate issued by the CBSE. This certificate cannot be assumed to be fabricated for the reason that it was used by the mother of the culprit to take benefit in the year 2007, while Mohit Rawat appeared in the examination much prior in the year 2003. 9. This certificate cannot be assumed to be fabricated for the reason that it was used by the mother of the culprit to take benefit in the year 2007, while Mohit Rawat appeared in the examination much prior in the year 2003. 9. As regards the argument that application made in the Motherland School was submitted on 3.7.1989, this stands clarified by the statement of the Principal of the said school made during the course of preliminary enquiry by the police that this might have had happened inadvertently due to the clerical mistake by the concerned ministerial staff who dealt with the said form. 10. Learned Counsel for the private respondent has argued that Mohit Rawat has criminal history and as per Annexure 1, filed along with the stay vacation application, there are as many as five cases registered against him. Be that as it may, this fact has no connection with the present matter. This is another aspect and just on the basis of criminal history, the impugned charge-sheet cannot be permitted to prevail. There was no cheating or perjury on the part of Hema Rawat so far as the claim of juvenility of her son on the basis of date of birth as 3.12.1989 is concerned. 11. For the reasons recorded above, this petition has substance and it is liable to be allowed. It is allowed accordingly. Impugned charge-sheet dated 23.1.2008, order of cognizance dated 9.5.2008 as well as the entire proceedings of Misc. Criminal Case No. 97/2008, State v. Mohit Rawat & another, under Sections 420, 193 & 120B, IPC arising out of Case Crime No. 405/2007, pending in the court of Chief Judicial Magistrate, Dehradun are hereby quashed. 12. Inform the court concerned accordingly. Petition allowed.