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Allahabad High Court · body

2014 DIGILAW 3022 (ALL)

Loknath Pandey v. State of U. P.

2014-09-25

BHARAT BHUSHAN

body2014
JUDGMENT Bharat Bhushan, J. 1. Heard Sri Satish Trivedi, learned Senior Advocate assisted by Mr. Abhishek Srivastava, learned counsel for the revisionist, Mr. A.K. Pandey, learned counsel for the opposite party no. 2 and learned AGA for the State respondent. 2. This Criminal Revision, under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short Juvenile Justice Act) is directed against the impugned judgment and order dated 19.8.2011 passed by the Addl. District and Sessions Judge, Gorakhpur in Criminal Appeal No. 68 of 2011 filed under Section 52 of the Juvenile Justice Act whereby the appeal filed by opposite party no. 2 was allowed and he was declared juvenile in conflict with law and the order of court below dated 7.2.2011 passed by the Principal Magistrate, Juvenile Justice Board, Gorakhpur in Case Crime No. 654 of 2010, under Sections 302/34 IPC and Section 7 of Criminal Law Amendment Act, P.S. Cantt, District Gorakhpur was set aside. 3. It appears that accused Kuldeep Pandey and his associates are facing trial in Case Crime No. 654 of 2010, under Sections 302 IPC and Section 7 of Criminal Law Amendment Act, P.S. Cantt, District Gorakhpur. A request was made to the Juvenile Justice Board claiming Juvenility for accused Kuldeep Pandey but this application was rejected by the Juvenile Justice Board vide order dated 3.7.2010. Thereafter the appeal filed under Section 52 of the Juvenile Justice Act was also dismissed vide order dated 26.8.2010. Both the aforesaid orders were challenged in Criminal Revision No. 4046 of 2010 (Kuldeep Pandey Vs State of UP and another) which was allowed vide order dated 6.12.2010 and orders dated 26.8.2010 and 3.7.2010 passed by Addl. Sessions Judge/Special Judge (EC Act), Gorakhpur in appeal and Principal Judge, Juvenile Justice Board, Gorakhpur respectively were set aside. Juvenile Justice Board was directed to decide the application filed by the revisionist for deciding the juvenility on the basis of procedure prescribed under Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules 2007 (in short Rules 2007) instead Rule 22 of Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules 2004 (in short UP Rules 2004). The dispute was again taken into consideration by the Juvenile Justice Board after affording opportunity of hearing as well as to adduce evidence for both the parties. The dispute was again taken into consideration by the Juvenile Justice Board after affording opportunity of hearing as well as to adduce evidence for both the parties. The claim of Juvenility was again rejected vide order dated 7.2.2011 by the Principal Judge, Juvenile Justice Board, Gorakhpur. 4. Respondent no. 2 filed criminal appeal No. 68 of 2011 (Kuldeep Pandey Vs State of UP and others) which was allowed by Addl. Sessions Judge/Special Judge (E.C. Act) Gorakhpur vide order dated 19.8.2011 and the claim of Juvenility was approved by the leaned Sessions Judge. This order is under challenge before this Court. 5. Learned counsel for the revisionists has challenged the impugned order dated 19.8.2011 on the ground that two different High School Mark sheets/Certificate of the same accused are available on record. This discrepancy has not been explained by the accused claiming Juvenility as both the High school Mark sheets/Certificates disclose two different dates of birth. It has been argued on behalf of the revisionist that the connecting evidence including the Voter I.D. List, Pan Card, Family Register as well as the Bank Account Opening Form, disclose the various dates of birth of accused (respondent no. 2). 6. Learned counsel for the revisionist has further contended that learned Sessions Judge has failed to take into consideration the provisions of 'U.P. Rules 2004' while deciding the claim of juvenility of respondent no. 2. 7. To the contrary, learned counsel appearing on behalf of the respondent no. 2 has submitted that the impugned order is just, valid and legal. He has also drawn the attention of the Court towards the parameters of revisional jurisdiction arguing that the impugned order of learned Sessions Judge can only be upset if any illegality, perversity, impropriety or jurisdictional error is shown. 8. It would be appropriate to examine the relevant provisions of UP Rules 2004 and Central Rules 2007 for deciding their applicability. He has also drawn the attention of the Court towards the parameters of revisional jurisdiction arguing that the impugned order of learned Sessions Judge can only be upset if any illegality, perversity, impropriety or jurisdictional error is shown. 8. It would be appropriate to examine the relevant provisions of UP Rules 2004 and Central Rules 2007 for deciding their applicability. Rule 22(5) of 'UP Rules 2004' provides the procedure to be followed by Juvenile Justice Board in holding the inquiry and the determination of age, which reads as under: - "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." 9. Similarly Rule 12(3) of 'Rules 2007' provides as under: - "Rule 12. Procedure to be followed in determination of age.- (1) In every case concerning a child or juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board, or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail. (2) The Court or the Board, or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail. (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 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. (4) If the age of the juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or, as the case may be, the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act, and these rules, no further inquiry shall be conducted by the Court or the Board after examining any obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law." 10. Leaned counsel for the revisionist has claimed that in Uttar Pradesh the procedure enshrined under the 'UP Rules 2004' is applicable in view of Section 68 of the Juvenile Justice Act. He has further submitted that the appellate court was not empowered to apply 'Rules 2007' for deciding the juvenility of respondent no. 2. 11. It is apparent that this argument is based on the premise that 'Rules 2007' do not give any option to the concerned court if any certificate mentioned in higher order of preference is found genuine and otherwise reliable. The scheme as laid down under Rule 12(3) of Rules 2007 provides procedure for determining the juvenilty of the claimant. It entails that if matriculation or equivalent certificate is available then the juvenility has to be ascertained on the basis of such certificate. Under the Rule 12(3) of 'Rules 2007', if the court finds the matriculation or equivalent certificate reliable and genuine then the court is precluded from taking into considering any other evidence. 12. It entails that if matriculation or equivalent certificate is available then the juvenility has to be ascertained on the basis of such certificate. Under the Rule 12(3) of 'Rules 2007', if the court finds the matriculation or equivalent certificate reliable and genuine then the court is precluded from taking into considering any other evidence. 12. On the other hand, Rule 22(5) of 'U.P. Rules 2004' does not discriminate between the certificate given by the Corporation or Municipal Authority or a date of birth certificate from the School first attended or matriculation or equivalent certificate, if available. Medical opinion can only be taken into consideration subject to margin of one year in deserving cases, if any of the aforesaid certificates are not available. 13. Learned counsel for the revisionist has vehemently argued that in view of applicability of U.P. Rules 2004, learned lower appellate court should have refrained from applying the rules 2007. But appellate court has used the Rules 12(3) of 'Rules 2007' for determining the Juvenility of the respondent no. 2 relying upon the judgment of co-ordinate bench of this court in Dharam Singh Vs State of UP and another, : 2011(6) ADJ 542 . In Dharam Singh (supra), this court has held thus: - "12. No doubt in U.P., the Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004 have been framed, and rule 22(5) of the U.P. Rules provides as to how the juvenility is to be determined. In the U.P. Rules all the certificates referred to in the Central rules as well as the medical opinion have been made admissible for deciding the question of juveniltiy but the U.P. rules are silent with regard to preferences in the event of conflict between two or more certificates. More so the rule 22(5) of the U.P. rules is silent as to how the juvenility is to be determined by the court. It merely provides the procedure to be adopted by the Board for deciding the juvenility. Another important aspect is that the Act has been materially amended after framing of the U.P. Rules. More so the rule 22(5) of the U.P. rules is silent as to how the juvenility is to be determined by the court. It merely provides the procedure to be adopted by the Board for deciding the juvenility. Another important aspect is that the Act has been materially amended after framing of the U.P. Rules. Consequent thereupon section 7A providing the procedure to be followed for deciding the question of juvenility has been brought on the Statute Book with effect from 22.8.2006, therefore, the U.P. Rules were required to be recasted keeping in view the provisions of section 7A of the Act but it has not been done, therefore, the Central Rules providing the procedure as to how the question of juvenility is to be determined by the court seems to have prevailing effect on the U.P. Rules. Section 68 of the Act empowers the Central Government to frame model rules which will have effect during the period the rules are not framed by the State. In view of the fact that the State of U.P. has not framed any rule keeping in view the provisions of section 7A of the Act, the Central Rules referred to above would apply for the inquiry held under section 7A of the Act, until the rule in respect of that matter is made by the State Government of the Uttar Pradesh." 14. The aforesaid judgment has held that in view the provisions of Section 7A of the Juvenile Justice Act, the central Rules namely 'Rules 2007' would apply for the inquiry held under Section 7A of the Juvenile Justice Act until the rules in respect of that matter are made by the State of Uttar Pradesh. 15. Apart from that the argument of learned counsel for the revisionists cannot be accepted for another reason. As stated earlier, claim of Juvenility was earlier rejected by the Principal Judge, Family Court vide order dated 3.7.2010 and the appeal preferred against that order was also dismissed vide order dated 26.8.2010. These orders were challenged before this court by filing Criminal Revision No. 4046 of 2010 and a co-ordinate bench of this court set-aside both the orders holding that the claim of juvenility of respondent no. 2 had been rejected by applying the procedure prescribed under Rule 22(5) of the 'UP Rules 2004'. These orders were challenged before this court by filing Criminal Revision No. 4046 of 2010 and a co-ordinate bench of this court set-aside both the orders holding that the claim of juvenility of respondent no. 2 had been rejected by applying the procedure prescribed under Rule 22(5) of the 'UP Rules 2004'. The court held that the Juvenile Justice Board as well as the Appellate Court should have decided the claim of juvenility in accordance with the procedure under Rule 12(3) of Rules 2007. The court held thus: - After having examined the submissions advanced by the learned counsel for the parties and perused the impugned orders as well as other materials brought on record, I find that submissions advanced by the learned counsel for the revisionist have force and the same are liable to be accepted. Even the most superficial reading of the order of the Principal Judge, Juvenile Justice Board, Gorakhpur discloses that while deciding the issue of revisionist's juvenility, he has followed the procedure prescribed under Rule 22 of 2004 Rules. Although, on the date of which the issue was considered, 2007 Rules had come into operation and accordingly the revisionist's claim for being declared juvenile in conflict with law was liable to be decided in accordance with the procedure prescribed by Rule 12(3) of the 2007 Rules, keeping in view the first proviso to Section 68 (1) of 2000 Act. The failure of the Appellate Court to rectify the error committed by the Principal Judge, Juvenile Justice Board, Gorakhpur as rendered its order also totally unsustainable in the eyes of the fact. The impugned orders therefore can not be sustained. This application in revision is allowed. The orders dated 26.08.2010 and 03.07.2010 passed by the Additional Sessions Judge/Special Judge (E.C. Act), Gorakhpur and the Principal Judge, Juvenile Justice Board, Gorakhpur respectively are hereby set aside. The matter is remitted back to the Principal Judge, Juvenile Justice Board, Gorakhpur to decide the application filed by the revisionist for being declared juvenile in conflict with law afresh by following the procedure under Rule 12(3) of the 2007 Rules, after affording an opportunity of hearing to all concerned within a period of three weeks from the date of production of certified copy of this order before him." 16. Once the aforesaid judgment was passed in present dispute, the Juvenile Justice Board as well as the Appellate Court had no option but to test the claim of juvenility in accordance with the procedure prescribed under Rule 12(3) of the Rules 2007. This was done by the appellate court in pursuance of direction of coordinate bench of this court, ergo, the order of appellate court cannot be faulted on this score. 17. Second argument of learned counsel for the revisionist is that the learned Addl. Sessions Judge has failed to take into consideration the various documents disclosing the different dates of birth of respondent no. 2. In this connection, he has drawn the attention of this court towards the Voter I.D. List, Account Opening form, Pan Card as well as the Family Register. This argument of learned counsel for the revisionist is misconceived. Neither the 'Rule 2007' framed by the Central Government nor the 'U.P. Rules 2004' provide any scope for consideration of dates of birth available in aforementioned documents. 18. A careful perusal of Rules 12(3) of 'Rules 2007' and Rules 22(5) of 'UP Rules 2004' indicates similarity of the Rules. Rules 12(3) of Rules 2007 contemplates consideration of matriculation or equivalent certificate if available, Date of birth certificate from the School (other than Play School first attended), birth certificate given by Corporation, Municipal Authority or Panchayat, if these certificates are not available then the medical opinion of duly constituted medical board is to be considered for determining the age of accused by considering his/her age on lower side with margin of one year in deserving cases. 19. Rule 22(5) of 'UP Rules 2004' also takes into consideration almost all aforesaid certificates. It also provides that in absence of aforesaid certificates mentioned in Rule 22(5) (i) (ii)(iii) of 'Rules 2004', medical opinion by duly constituted Medical Board subject to margin of one year can be taken into consideration. The only difference is that the Rule 22(5) of 'UP Rules 2004' does not give preference to any certificates contemplated under Rule 22(5)(i)(ii)(iii) of 'Rules 2004' while the Rule 12(3) of 'Rules 2007' provides for preference to the matriculation or equivalent certificate, if available. The only difference is that the Rule 22(5) of 'UP Rules 2004' does not give preference to any certificates contemplated under Rule 22(5)(i)(ii)(iii) of 'Rules 2004' while the Rule 12(3) of 'Rules 2007' provides for preference to the matriculation or equivalent certificate, if available. It provides the order of preferences of certificates which has to be taken into consideration for determining the age of accused, meaning thereby that if a particular certificate is available and found to be reliable and genuine then the certificates contemplated lower down in the order of preference cannot be taken into consideration for determining the age of claimant. Both rules do not envisage consideration of any other document except mentioned in the rules themselves. Therefore, the Pan Card, Bank Account Opening Form, family register and voter I.D. Card etc cannot be taken into consideration for determining the age of respondent no. 2 under both the Rule 12(3) of 'Rules 2007' and Rules 22(5) of ' U.P. Rules 2004'. 20. Leaned counsel for the revisionist has also raised dispute regarding authenticity of High School Certificate of respondent no. 2 saying that revisionist was initially admitted in Amar Singh Children Academy, Civil Lines, Gorakhpur wherein he took admission in Class III on 16.8.1997 and studied there as regular student till Class VIII. One witness namely C.W.-4 Amar Singh was produced who brought with him the Students Register and admission form for the year 1997-98. The name of Juvenile, Kuldeep Pandey, figures at Sl No. 154 of Students Register wherein the date of birth is shown as 7.10.1990, thereafter, he took admission in Central Academy, Senior Secondary School, Gorakhpur where he allegedly failed in High School in the year 2005. The mark sheet also shows 7.10.1990 as date of birth. Learned counsel for the revisionist has vehemently argued that the certificates issued by Amar Singh Children Academy and Central Academy, Senior Secondary School, Gorakhpur establish 7.10.1990 as date of birth of respondent no. 2. 21. On the other hand, learned counsel for the respondent no. 2 has denounced all certificates issued by Amar Singh Children Academy as well as Central Academy, Senior Secondary School as forged and concocted. He has drawn the attention of the Court towards the various additions and over writings in the admission form as well as the Students Register. 2. 21. On the other hand, learned counsel for the respondent no. 2 has denounced all certificates issued by Amar Singh Children Academy as well as Central Academy, Senior Secondary School as forged and concocted. He has drawn the attention of the Court towards the various additions and over writings in the admission form as well as the Students Register. Surprisingly, the Students Register reveals that dates of promotions mentioned therein as 4.4.1998, 4.4.1999, 4.4.2000, 4.4.2001, 4.4.2002 and 4.4.2003 respectively. It reveals that in each year referred above, the promotions were done on 4th day of April. Infact the 4.4.1999 was Sunday yet promotion was allegedly accorded on that day by the Institution. It is inconceivable that each promotion was done on 4th of April of every year. 22. Perusal of the available records also indicate that only photocopy of the mark sheet was produced before the court concerned. Original mark sheet was not produced at any juncture. During course of inquiry statement of one Harish Chandra Srivastava was recorded to prove admission form and extract of Students Register. Interestingly, all the admission forms produced by him contain the photograph of the students and yet the photograph of the respondent no. 2 was missing from his alleged admission form. Apart from that entries pertaining to alleged Kuldeep Pandey in Students Register at Page 368 were not countersigned by any public officer. Although, all other entries in Students Register were specifically countersigned. These missing link do create doubt about the veracity of these certificates especially in the light of firm denial by respondent no. 2. Even the photocopy of the mark sheet allegedly issued by CBSE Board has not been proved in accordance with the provisions of Indian Evidence Act. 23. On the other hand, certificate/mark sheet issued by the Paniyara Inter College, Maharajganj showing his date of birth as 10.8.1993 has been proved by C.W.-1 Sachindra Nath Pandey, father of the opposite party no. 2 and C.W.-2 Aftab Alam, Principal of the Paniyara Inter College, Maharajganj. The evidence of Principal Aftab Alam demonstrates that the Kuldeep Pandey had cleared his High School examination from the said college and the accused had got admission in this college on the basis of Transfer Certificate issued by Panchayat Laghu Madhyamik Vidyalaya, Maharajganj. 24. The original mark sheet of Kuldeep Pandey, respondent no. The evidence of Principal Aftab Alam demonstrates that the Kuldeep Pandey had cleared his High School examination from the said college and the accused had got admission in this college on the basis of Transfer Certificate issued by Panchayat Laghu Madhyamik Vidyalaya, Maharajganj. 24. The original mark sheet of Kuldeep Pandey, respondent no. 2 issued by the U.P. Board and his original pass certificate issued by the UP Board showing his date of birth as 10.8.1993 were proved in accordance with the Indian Evidence Act. 25. In Shah Nawaz v. State of U.P. (2011) 13 SCC 751 the Apex Court while examining the scope of Rule 12 of Rules 2007, has held that the mark sheet and the School Leaving Certificate are a valid documents for ascertaining the age of accused. 26. Learned counsel for the revisionist has also submitted that in view of conflicting evidence as far as High School Certificates are concerned, other evidence should be taken into consideration. In Shah Nawaz (supra), the Hon'ble Apex Court has held that medical opinion from the Medical Board should be sought only when matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended or any birth certificate issued by a corporation or a municipal authority or a panchayat or municipality are not available. As the certificate/Mark sheet issued by UP Board, proved in accordance with the Evidence Act, is found by appellate court reliable, hence other documents cannot be taken into consideration. In any case, even the medical certificate dated 22.10.2006 issued by CMO indicates that the respondent no. 2 Kuldeep Pandey was 18 years at the time of medical examination. Rule 12(3)(b) of the 'Rules 2007' also contemplates that if the medical opinion is sought from the duly constituted medical board for ascertaining the age of child then the benefit may be given to the child or juvenile by considering his age on lower side within the margin of one year. Even if entire documentary evidence is rejected, Kuldeep Singh, respondent no. 2 would still have to be declared juvenile on the basis of medical certificate issued by CMO, Gorakhpur. 27. In the backdrop of the aforementioned discussions, I find that the opposite party no. 2 has rightly been declared juvenile on the date of commission of offence. Even if entire documentary evidence is rejected, Kuldeep Singh, respondent no. 2 would still have to be declared juvenile on the basis of medical certificate issued by CMO, Gorakhpur. 27. In the backdrop of the aforementioned discussions, I find that the opposite party no. 2 has rightly been declared juvenile on the date of commission of offence. The court below has given clear, cogent and convincing reasons for coming to the finding of Juvenility in favour of the opposite party no. 2. The impugned order is well in conformity in law and does not suffer from material illegality, irregularity, perversity and jurisdictional error. I find no scope for interference in the impugned order. 28. The Criminal Revision is devoid of merit and is liable to be dismissed. It is accordingly dismissed.