Sunil v. State of Haryana

Mr. Pritam Saini, Advocate for the petitioner. Mr. Pawan Singh, Assistant Advocate General, Haryana for the respondent-State. ..... S.S. Saron, J. The criminal revision petition has been filed by the petitioner- Sunil against the order dated 13.7.2009 passed by the learned Additional Sessions Judge, Panipat whereby application filed by the petitioner for declaring him as a juvenile has been dismissed. The petitioner is facing prosecution in case FIR No.194 dated

23.6.2008 registered at Police Station Sadar Panipat for the offence under Section 396 Indian Penal Code (`IPC' – for short). The petitioner claimed that he was below 18 years of age on the date of occurrence. Therefore, he filed an application for declaring him as a juvenile. The said application having been dismissed, he has filed the present petition. Learned counsel for the petitioner has submitted that the learned trial Court did not take into consideration the fact that the petitioner Cr. Revision No.2048 of 2009 [2] along with the application for declaring him juvenile, had placed on record an attested copy of the scholar register and transfer certificate issued by Gandhi Vidya Niketan Inter College, Budhpur, Ramala, Bhagpat, showing his date of birth as 1.6.1992. Besides, an application for conducting ossification test was filed under the Juvenile Justice (Care and Protection of Children) Rules (Rules – for short), which provides for medical opinion being sought from a duly constituted Medical Board, which would declare the age of the juvenile child. The affidavit of the mother of the petitioner, who deposed that the date of birth of the petitioner was recorded as

1.6.1992, has also been wrongly discarded. Therefore, it is submitted that the order passed by the learned trial Court is wrong and erroneous and is liable to be set aside. In response, Mr Pawan Singh, AAG, learned counsel for the State has submitted that the learned Additional Sessions Judge has taken into consideration all the facts of the case and has, by a well reasoned order, dismissed the application filed by the petitioner. It is submitted that the learned trial Court has considered the case in accordance with the provisions of Rule12(a)(3) of the Rules. The scholar register and the transfer certificate issued by the Gandhi Vidya Niketan Inter College, Budhpur, Ramala, Bhagpat, the affidavit of the mother of the petitioner and the question whether ossification test was liable to be conducted or not, have been duly considered. Therefore, the impugned order is legal and valid. I have given my thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance, gone through Cr. Revision No.2048 of 2009 [3] the record. The learned Additional Sessions Judge, Panipat, in her impugned order dated 13.7.2009, considered the fact that initially an application was filed by the petitioner on 3.12.2008 for proving his date of birth as 1.6.1992. The attested copy of the scholar register and the transfer certificate form issued by the Gandhi Vidya Niketan Inter College, Budhpur, Ramala, Bhagpat was enclosed. In the said certificate, the date of birth of the petitioner had been mentioned as 1.6.1992. However, even though the said certificate had been placed on record, no effort was made by the petitioner to prove the said certificate by examining any concerned officer/official from the said college and the certificate had remained unproved. Later, an application was filed for getting the ossification test of the petitioner conducted as no other record was available. The learned Additional Sessions Judge referred to the provisions of Rule 12(a)(3) of the Rules provides for the procedure to be followed in determination of age. In terms of Rule 12(a)(3) of the Rules, initially the Matriculation or equivalent Certificate is to be seen, if available. In the absence of Matriculation Certificate, the date of birth certificate from the school first attended other than a play school and in the absence of such a certificate, the birth certificate given by a Corporation or a Municipal authority or the Panchayat. In terms of Clause (b), only in the absence of Clauses (i), (ii) or (iii) of Clause (a), a medical opinion is to be sought by a duly constituted Medical Board, which would declare the age of the juvenile child. It was observed that in the present case, Smt Shanti, mother of the petitioner, had tendered an affidavit stating that the date of birth of her son – Sunil was Cr. Revision No.2048 of 2009 [4]

1.6.1992. He was a student of Gandhi Vidya Niketan Inter College, Budhpur, Ramala, Bhagpat and she had brought a photocopy of the certificate. Along with the application for ossification test, affidavits of Ishwar and Smt Shanti, parents of the petitioner, were filed stating that Sunil was born at Shambhu Ashram, Durga Nagar, Haridwar, at the home of his maternal uncle but his birth entry was not registered anywhere. It was held that the affidavit by the parents of the petitioner were not sufficient to invoke the provisions of Rule 12(3)(b) of the Rules. Besides, as per the version of the parents of the petitioner, his date of birth was entered in the college but no efforts were made to prove the same. Therefore, the possibility could not be ruled out that the record of the said Gandhi Vidya Niketan Inter College would be against the petitioner and since it was not in favour of the petitioner, it was not produced in the Court. As such, no ground was made out to attract the provisions of Rule 12(3)(b) of the Rules and the petitioner was not entitled to get an ossification test conducted. The reasoning given by the learned Additional Sessions Judge, Panipat, are sound. It may be noticed that in the present case, the petitioner indeed had a certificate which was issued from the school first attended and was placed on record. However, no one was examined from the said school to prove the entries in the said certificate. Therefore, an adverse inference is to be drawn for failure to prove the certificate of birth, which is available. The question of applicability of Clause (b) of Rule 12(3) of the Rules for conducting ossification test would indeed arise if the other conditions envisaged by Rule 12(a) are not fulfilled. Therefore, there being a certificate from the school first attended, the declining of holding of an Cr. Revision No.2048 of 2009 [5] ossification test is valid and would not warrant any interference by this Court in exercise of its revisional jurisdiction. Consequently, there is no merit in this petition and the same is accordingly dismissed. January 19, 2010. *hsp* (S.S. Saron) Judge