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Allahabad High Court · body

2017 DIGILAW 421 (ALL)

SALMAN v. STATE OF U. P.

2017-02-06

ARVIND KUMAR MISHRA I

body2017
JUDGMENT : 1. Counter affidavit filed today on behalf of State is taken on record. 2. Shri Sanjay Srivastava learned counsel for the revisionist has made statement at bar that he does not propose to file any rejoinder affidavit and the revision may be decided even in absence of rejoinder affidavit. 3. I have heard Shri Sanjay Srivastava, learned counsel for the revisionist and the learned A.G.A. for the State. 4. By means of instant revision, the revisionist has challenged the order dated 4.9.2015 passed by the Additional Sessions Judge Court No. 12, Bulandshahr, passed in Criminal Appeal No. 36 of 2015 (Salman Vs. State of U.P.), and the order dated 19.3.2015 passed by the Juvenile Justice Board, Bulandshahr, in Misc. Case No. 176 of 2014( State Vs. Salman) arising out case crime no. 62 of 2014, under sections 363, 366, 376, 120-B, I.P.C. and section 4 POCSO Act, Police Station Agota, district Bulandshahr, rejecting the claim of the revisionist to declare him as a juvenile. 5. Initially, the guardian of revisionist-Salman moved an application before the Juvenile Justice Board, Bulandshahr, (in short referred to as the Board), to the effect that since at the time of incident in question, revisionist-Salman, was below 18 years in age, hence, he may be declared juvenile in case crime no. 62 of 2014 under sections 363, 366, 376, 120-B, I.P.C. and section 4 POCSO Act, Police Station Agota, district Bulandshahr. 6. The Board examined A.P.W-1 Ausaf-father of revisionist-Salman, A.P.W.-2 Mohd. Toheed-Principal of Toheed Modern Public School, Dhakoli, Bulandshahr, A.P.W-3-Dr. Bijendra Kumar, The Education Officer of the Division-Agota. 7. Learned counsel appearing for the guardian before the Board, moved an application on 11.9.2014 for medical examination of the revisionist, which was allowed and the revisionist was got medically examined wherein the revisionist was found to be aged about 20-21 years. 8. The Juvenile Justice Board, summoned the revisionist before itself and opined that in appearance, Salman is aged about 20-21 years. Accordingly, after appraisal of the entire evidence available on record, the Board rejected the claim of the revisionist vide judgment and order dated 19.3.2015 passed in Misc. Case No. 176 of 2014. 9. 8. The Juvenile Justice Board, summoned the revisionist before itself and opined that in appearance, Salman is aged about 20-21 years. Accordingly, after appraisal of the entire evidence available on record, the Board rejected the claim of the revisionist vide judgment and order dated 19.3.2015 passed in Misc. Case No. 176 of 2014. 9. Feeling aggrieved thereby, the revisionist (through guardian), preferred Criminal Appeal No. 36 of 2015 before the Additional Sessions Judge, Court No. 12, Bulandshahr, who, too, after considering merit of the case dismissed the appeal of the revisionist vide judgment and order dated 4.9.2015, while affirming the judgment and order dated 19.3.2015 of the Board. Both these orders are impugned in this revision. 10. Learned counsel for the revisionist has submitted that date of birth of revisionist is 19.8.2000 as per transfer certificate issued by the Tauheed Modern Public School Dhakauli, Bulandshahr, and other concerned documents viz. statements of A.P.W-1 Ausaf, A.P.W. 2 Mohd. Toheed-Principal of the Institution, A.P.W.3, Education Officer of the Division Agauta but the learned Juvenile Justice Board has utterly failed to appreciate all these oral and documentary evidence and it has only relied upon the medical examination report which renders the impugned orders wholly illegal hence same are not sustainable. 11. Per contra, learned A.G.A. has submitted that during the course of proceedings, the claim of being juvenile, put forth by the revisionist-Salman through the guardian-father Ausaf, was duly examined along with the evidence before the Board. It was claimed that his date of birth is 19.8.2000 which was based on documentary proof i.e. transfer certificate issued by the Principal, Tauheed Modern Public School Dhakauli, Bulandshahr. 12. The revisionist got himself examined. The Principal and clerk of the Institution who maintained the scholar registered were also examined. The Board, after considering the materials available on record and its merit, returned with finding that the evidence brought on record does not confine the age of the revisionist within 18 years on various counts. The rationale for recording the aforesaid finding was basically on fact that there were various anomalies in the scholar register concerned produced for perusal of the Board. All the columns of the said register required to be filled, were not filled in properly and the relevant date of passing class III was also not mentioned in the record/register. The rationale for recording the aforesaid finding was basically on fact that there were various anomalies in the scholar register concerned produced for perusal of the Board. All the columns of the said register required to be filled, were not filled in properly and the relevant date of passing class III was also not mentioned in the record/register. There was contradictions in the statements made by the father of the revisionist and A.P.W. 2 Mohd. Toheed to the extent that one witness (A.P.W.1) stated that the admission was in fact obtained in class I where as, A.P.W.-2 stated that the admission for class II was noted. On account of above contradiction and anomaly, the Board adopted last recourse open for it and decided to examine the revisionist medically. The medical examination was done on 26.9.2014 by the duly constituted Medical Board. The Medical Board opined that the age of the revisionist is between 20 to 21 years. The Juvenile Justice Board after considering the entirety of the matter and evidence on record as well as fact alleged in the application, rejected the claim of the revisionist refusing to treat him minor. The order rejecting claim of the revisionist for determination of juvenility has been affirmed by the appellate court after considering the evidence on record and affording opportunity of hearing to the revisionist. Thus, the orders impugned are wholly justified and cannot be interfered with by this Court. 13. I have given anxious consideration to the rival submissions and carefully perused the record of the case as well as the impugned orders. 14. The learned Juvenile Justice Board thoroughly examined the genuineness of the claim of the revisionist for being declared juvenile as set up by the revisionist. It has considered the oral statement of A.P.W-1 Ausaf-father of revisionist who did not bring on record any copy of affidavit or any authentic document in support of date of birth being 19.8.2000 except bald statement at the time of admission in class II in the concerned Institution. He could not point out the details about passing of class I of the revisionist. The Board also examined A.P.W-2 Mohd. Toheed Principal of Toheed Modern Public School Dhakoli, Bulandshahr, A.P.W.-3 Dr. Bijendra Kumar, the Education Officer of the Division Agota. Their statements were found full of contradictions. 15. All the columns of scholar register were not filled in properly. He could not point out the details about passing of class I of the revisionist. The Board also examined A.P.W-2 Mohd. Toheed Principal of Toheed Modern Public School Dhakoli, Bulandshahr, A.P.W.-3 Dr. Bijendra Kumar, the Education Officer of the Division Agota. Their statements were found full of contradictions. 15. All the columns of scholar register were not filled in properly. Besides, there were cuttings in the column of name of mother and father and the date of birth was alleged to be changed without endorsement having been made about issuance of Transfer Certificate. The receiving date of Transfer Certificate has not been mentioned in the Scholar Register. Thus, scholar register is not to be relied upon in proof of date of birth of the revisionist. Moreso no valid document in regard to scholar register or any document purportedly issued by Nagar Palika, Town Area etc. has been filed in order to ascertain the exact correct date of birth of the revisionist for declaring him juvenile. 16. Here, in this case, it is obvious that the Juvenile Justice Board completed necessary exercise for determining the age of the juvenile while directing the medical board for medical examination of the proposed juvenile. In this context, the legal position for constitution of the medical board can be discussed. 17. The procedure to be followed in determining the age of the proposed juvenile has been enumerated in Rule 12 of the Juvenile Justice ( Care and Protection of Children) Rules, 2007, ( in short referred to as the Rules). For ready reference, Sub-rule 3 of Rule 12 of the Rules is quoted herein-below: "(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 Ihe juvenile in conflict with law." 18. Thus, it is clear that the medical opinion will be sought from the duly constituted medical according to sub-rule (b) of sub Rule 3 of Rule 12 (supra), after exhausting the procedure mentioned in foregoing sub-rule (a)(i), (ii) (iii) of Rule 12. Pursuant to above, the Juvenile Justice Board got rightly medical examination of the revisionist conducted by the duly constituted Medical Board and, thus, after examination, assessed the age of the revisionist as 20-21 years at the time of occurrence. Thus, the age of the revisionist on the date of occurrence, in no case, was below 20-21 years. Therefore, the Juvenile Justice Board was fully within its jurisdiction and was justified in placing reliance on the medical examination report in order to ascertain the age of the revisionist and, therefore, passed the impugned order dated 19.3.2015 which has been confirmed in Criminal Appeal by the Appellate Court vide its order dated 4.9.2015. No other point has been raised by the learned counsel for the revisionist. 19. It can be observed that when the hierarchy of document/procedure prescribed under Rule 12 of J.J. Rules 2007 fails then the Board or court, as the case may be, is left with the last resort/option which stipulates for obtaining medical examination of the person concerned. It was under such circumstances that the only option available for ascertaining the age of the revisionist was left to obtaining medical examination report from the Medical Board. The medical board constituted for examining the revisionist assessed the age of the revisionist between as 20-21 years. It was under such circumstances that the only option available for ascertaining the age of the revisionist was left to obtaining medical examination report from the Medical Board. The medical board constituted for examining the revisionist assessed the age of the revisionist between as 20-21 years. Thus age of the revisionist was in no case below 20 years at the time of the incident in question. Thus, the learned Juvenile Justice Board was fully justified in relying on the medical report in order to ascertain the age of the revisionist and passed the impugned order dated 19.3.2015 which has been affirmed in appeal by the appellate court vide its judgment and order dated 4.9.2015. No other point has been raised by the learned counsel the revisionist. 20. Both the Sessions Court as well as the Juvenile Justice Board, Bulandshahr have given concurrent finding on point of age of the revisionist. The finding recorded in determination of the age of the revisionist is found to be based on record. Therefore, the same is liable to be affirmed. 21. Before parting with this judgment, it can be observed that appreciation of facts by revisional court has to be avoided and it cannot act as if it is appellate court, only mistake apparent on record or perverse finding not based on record alone is to be seen at revisional stage. 22. In view of aforesaid discussion, I do not find any illegality in both the impugned orders nor any cogent ground has been made out in the grounds of revision, which may warrant interference in exercise of revisional jurisdiction. This revision has no force and the same is dismissed accordingly.