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2021 DIGILAW 1578 (RAJ)

Mahipal @ Mahipal Tetarwal v. State of Rajasthan

2021-08-26

PUSHPENDRA SINGH BHATI

body2021
ORDER 1. In wake of second surge in the COVID-19 cases, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned. 2. The petitioner has preferred this criminal revision petition under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 claiming the following relief: "It is, therefore, most humbly prayed that this revision petition filed by the accused-petitioner may kindly be allowed and impugned Judgment dated 04.03.2021 passed by learned Special Judge, Protection of Children from Sexual Offences Act Cases, 2012 & Commission for Protection of Child Right Act, 2005, Merta, District Nagaur in Criminal Appeal No.27/2020 (CIS No.27/2020) titled as "Surendra Mundel Vs. State of Rajasthan & Ors." may kindly be quashed and set aside and the orderdated 21.11.2020 passed by learned Principal Magistrate, Juvenile Justice Board, Nagaur in Criminal Misc. Case No. NIL/2020 titled as "State of Raj. Vs. Mahipal @ Mahipal Tetarwal" (arising out of FIR No.47/2020 registered at Police Station Merta Road, District Nagaur) may kindly be ordered to be restored back. Any other appropriate order, which this Hon'ble Court deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner." 3. Brief facts of the case, as noticed by this Court are that an FIR bearing No.47/2020 was registered on 21.05.2020 at Police Station Merta Road, District Nagaur for the offences under Sections 302, 307, 323, 341, 143 & 120-B of IPC. 4. During the course of investigation, the police found the date of birth of the petitioner to be 15.07.2002, and thus, he was only 17 years and 10 months old and was minor on the date of the alleged incident. Accordingly, the charge-sheet was submitted by the police before the concerned Juvenile Justice Board, whereas for the remaining accused, a separate charge-sheet was filed before the concerned Judicial Magistrate. 5. The respondent No.2 moved an application for determination of the age of the juvenile i.e. the accused-petitioner before the learned Juvenile Justice Board, Nagaur, while stating that the petitioner's actual age was 19 years and 06 months, as his actual date of birth is 15.12.2000. 6. 5. The respondent No.2 moved an application for determination of the age of the juvenile i.e. the accused-petitioner before the learned Juvenile Justice Board, Nagaur, while stating that the petitioner's actual age was 19 years and 06 months, as his actual date of birth is 15.12.2000. 6. Learned counsel for the petitioner has drawn the attention of this Court towards the order dated 21.11.2020 passed by learned Juvenile Justice Board, Nagaur, in which, the learned court has examined the documents of the school education of the petitioner, which indicate that his date of birth was 15.07.2002. 7. The learned court has held that the complete record has been examined so much so that even the Board of Secondary Education, Rajasthan also indicated the age of the petitioner to be 15.07.2002. The certificate issued by the concerned school as well as the certificate issued by the Board of Secondary Education were also examined. 8. Learned counsel for the petitioner submits that the order dated 21.11.2020 was in accordance with law as the court after examining the complete record has held that the petitioner's age has to be taken as 17 years 10 months, at the time of the incident happened on 21.05.2020, as his date of birth is 15.07.2002. 9. Learned Government Advocate cum cum Additional Advocate General has taken this Court to Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short "the Act of 2015"). He fairly submits that due priority has to be given to the matriculation certificate issued by the Board of Secondary Education, and thereafter, if the educational certificates do not reflect proper date, then rest of the options can be exercised. 10. Learned counsel for complainant-respondent No.2 vehemently opposed the petition on the ground that the transfer certificate had certain overwriting in regard to the age, as 15.07.2000 has been converted into 15.07.2002. 11. This Court finds that even if the transfer certificate on the earlier classes had some overwriting, then also the petitioner could not have anticipated the crime in question, while taking up his secondary board examination, and thus, the date given in the certified issued by Board of Secondary Education, which is authenticated from record by the learned court below, stands at the strongest level of proof required for the age in tandem with Section 94 of the Act of 2015. 12. 12. The learned appellate court has failed to appreciate that the certificate issued by Board of Secondary Education is carrying the same date, as transfer certificate i.e. 15.07.2002, and the learned court below had passed the impugned order dated 21.11.2020 only after perusing the record. 13. This Court also finds that the most credible evidence, which is not disputed by the respondent, is the certificate issued by the Board of Secondary Education and the same was in conformity with the investigation, in which, the police also found the age of the petitioner to be 15.07.2002 and the charge-sheet was preferred before the learned Juvenile Justice Board, Nagaur has to be sustained. 14. In light of the aforesaid discussion, the present petition is allowed and the impugned judgment dated 04.03.2021 passed by learned Special Judge, Protection of Children from Sexual Offences Act Cases, 2012 & Commission for Protection of Child Right Act, 2005, Merta, District Nagaur in Criminal Appeal No.27/2020 (CIS No.27/2020) titled as (Surendra Mundel Vs. State of Rajasthan & Ors.) is hereby quashed and set aside and the order dated 21.11.2020 passed by learned Principal Magistrate, Juvenile Justice Board, Nagaur in Criminal Misc. Case No.NIL/2020 titled as (State of Raj. Vs. Mahipal @ Mahipal Tetarwal) arising out of FIR No.47/2020 registered at Police Station Merta Road, District Nagaur is restored. It is made clear that this order shall not prejudice the learned court while exercising any power under Section 15 of the Act of 2015. Stay petition stands disposed of.