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2013 DIGILAW 1334 (ALL)

WASEEM v. STATE OF U. P.

2013-05-07

S.C.AGARWAL

body2013
JUDGMENT Hon’ble S.C. Agarwal, J.—Heard learned counsel for revisionist and learned AGA for the State. This criminal revision is directed against the order dated 24.4.2013 passed by Additional Sessions Judge, Court No. 1, Moradabad in Sessions Trial No. 201/2005 (State v. Waseem and others) arising out of Crime No. 1073 of 2004 under Section 302 IPC P.S. Mughalpura, District Moradabad whereby the application under Section 7-A of The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ‘Act’) praying that the revisionist be declared a juvenile was rejected. 2. Learned counsel for revisionist submitted that no proper enquiry was held by the Trial Court as envisaged by Section 7-A of the Act in accordance with Rule 12 (3) of The Juvenile Justice (Care and Protection of Children) Rules, 2007. It was contended that the revisionist has filed transfer certificate issued by Hukum Singh Junior High School, Nai Majohi, Peetal Nagari, Moradabad of the year 2001 wherein the date of birth of the revisionist Waseem was mentioned as 30.1.1988. Two other witnesses Sanjeev Kumar Sharma and Mohd. Fahim were also examined on behalf of the revisionist. 3. The application was rejected by the Trial Court on the ground that no evidence was led to show the date of birth of the revisionist at the time when he was first admitted in the school. It was contended that no medical examination of the revisionist was conducted to ascertain his age. 3. The application was rejected by the Trial Court on the ground that no evidence was led to show the date of birth of the revisionist at the time when he was first admitted in the school. It was contended that no medical examination of the revisionist was conducted to ascertain his age. Section 7-A (1) of the Act provides as under : “Section 7-A 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 enquiry, 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.” 4. It is clear from the aforesaid provision that when an application is filed before any Court raising questions of juvenility of an accused, the Court shall make an enquiry, 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. 5. From the aforesaid provision, it is apparent that the Court has to conduct an independent and thorough enquiry and is not guided only by the evidence adduced by a party. 5. From the aforesaid provision, it is apparent that the Court has to conduct an independent and thorough enquiry and is not guided only by the evidence adduced by a party. If the Trial Court is not satisfied with the evidence produced on behalf of the accused, and wanted a date of birth recorded in the school first attended or a Madarsa as in the instant case, the Trial Court was at liberty to summon all such witnesses who might be acquainted with the date of birth of the revisionist, but the Trial Court did not undertake any such exercise. Rule 12 (3) 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. According to Rule 12 (3) the question of juvenility of accused has to be decided primarily on the basis of the Matriculation certificates and in the absence whereof 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 above three options, medical opinion will be sought from a duly constituted medical board.In the instant case, the Trial Court disbelieved the school leaving certificate without sufficient reasons, did not summon the witnesses of the school or Madarsa first attended by revisionist and in these circumstances, the Trial Court was bound to seek opinion from a duly constituted medical board regarding age of revisionist. 7. It must be remembered that in the case of juvenile, the Trial Court is not a mute spectator between the prosecution and the defence but the Trial Judge must take active part in the enquiry. Such evidence or witnesses must be summoned who are relevant for the question regarding date of birth of an accused. In the absence of documentary evidence, the medical opinion has to be obtained from duly constituted board and only thereafter an appropriate finding regarding juvenility of an accused can be recorded by the Trial Court. In the instant case, regretfully, the Trial Court has not performed his functions as expected and therefore, the impugned order is illegal and is liable to be set aside. The revision is allowed. The impugned order dated 24.4.2013 is set aside and the matter is remanded to the Trial Court to take fresh decision regarding juvenility of the revisionist keeping in view the guide lines noted above. —————