The Hon'ble Apex Court in the case of Rishipal Singh Solanki v. State of U.P. and Others

Judgment

1. List revised. None present for the revisionist as well as for the opposite party no. 2. Heard the learned A.G.A. for the State and perused the record.

2. This criminal revision has been preferred by accused Chotu against the impugned order dated 04.03.2023 passed by the Court of Additional Sessions Judge / Additional Special Judge (POCSO Act), Court No. 1, Mathura in Sessions Trial No. 772 of 2015 (State Vs. Chotu & Other), whereby his application 193 Kha has been rejected.

3. From perusal of record, it is evident that the accused / revisionist Chotu had moved an application 185 Kha in the trial court on 28.09.2022 with the averments that his date of birth recorded in High School examination 2017 mark-sheet is

01.01.2001 and on the date of alleged offence i.e. 28.05.2014, he was only 14 years old, as such he be declared juvenile on the date of the alleged offence.

4. In the trial court, the informant had opposed the above application and had also filed a sale-deed dated 03.06.2019 executed by the accused Chotu along with his brothers in favour of

Smt. Omwati Devi, in which he had annexed his PAN Card No. BNPPC7255J, in which his date of birth was mentioned as 01.01.1992 and on this basis, the trial court came to the conclusion that on the date of alleged offence i.e. on 28.05.2014, the accused was about 22 years old and as such, the trial court had rejected the juvenile application 185 Kha of the accused Chotu vide order dated 21.11.2022 and had fixed the case for defence evidence.

5. Subsequently, the accused Chotu had moved an application 193 Kha to recall order dated 21.11.2022 on 18.01.2023, on the ground that he was neither given a copy of PAN Card nor given opportunity to file counter objections, but application 193 Kha has been rejected by the trial court by impugned order, by observing that the juvenile application of the accused was disposed on merits, after hearing both the parties, which cannot be recalled.

6. The Hon'ble Apex Court in the case of Rishipal Singh Solanki Vs. State of U.P. and Others (2022) 8 SCC 602 has held as below:- “33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.1 A claim of juvenility may be raised at any stage of a criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim. It can also be raised for the first time before this Court. 33.2 An application claiming juvenility could be made either before the Court or the JJ Board.

33.2.1. When the issue of juvenility arises before a Court, it would be under sub-section (2) and (3) of section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, section 94 of the JJ Act, 2015 applies. 33.2.2 If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. 33.2.3 When an application claiming juvenility is made under section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated under section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015).

33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in 2 of 4 Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7. This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.”

7. In Sanjeev Kumar Gupta Vs. State of U.P. (2019) 12 SCC 370, while obtaining Aadhar Card and driving licence the accused had voluntarily disclosed different date of birth. In these circumstances, his claim of juvenility on the basis of matriculation certificate was rejected and it was held by the Apex Court that the date of birth reflected in the matriculation certificate could not be accepted as authentic or credible.

8. In the present case, according to the PAN Card No. BNPPC7255J of the accused-Chotu submitted while executing the sale-deed dated

03.06.2019, it has come to light that in the PAN Card his date of birth is

01.01.1992. The PAN Card is an official document which has been got prepared by the accused himself and the date of birth mentioned in it, has also been provided by the accused. This is not a document which has been prepared by the informant. The date of birth recorded in the PAN Card can 3 of 4 not be discarded or disbelieved. In view of this, the trial court has come to the conclusion that the date of birth of the accused recorded in the PAN Card is correct and the accused has taken a false plea of juvenility, which is not sustainable.

9. Accordingly, the trial court had rejected the juvenile application 185 kha of the accused. It will be pertinent to mention here that a Criminal Court cannot review or recall its earlier order in the light of the bar enacted by Section 362 Cr.P.C., as such the trial court could not have recalled or reviewed its earlier order dated 21.11.2022.

10. In this revision the informant has already filed her counter affidavit about 1 ½ years ago, but till date no rejoinder affidavit has been filed by the revisionist.

11. Since, the contra evidence (PAN Card) submitted by the informant in trial court, has been got prepared by the accused himself, as such, the trial court has not committed any illegality in coming to the conclusion that the date of birth of the accused Chotu recorded in his PAN Card No. BNPPC7255J is correct and, accordingly, the accused was not juvenile on the date of alleged offence.

12. In view of the above discussion, this criminal revision is hereby rejected on merits.

13. A copy of this order be sent by Registrar (Compliance) to the trial court. Order Date :- 9.5.2025 SK Srivastava (Sandeep Jain,J.) 4 of 4 SAILESH KUMAR SRIVASTAVA High Court of Judicature at Allahabad

Smt. Omwati Devi, in which he had annexed his PAN Card No. BNPPC7255J, in which his date of birth was mentioned as 01.01.1992 and on this basis, the trial court came to the conclusion that on the date of alleged offence i.e. on 28.05.2014, the accused was about 22 years old and as such, the trial court had rejected the juvenile application 185 Kha of the accused Chotu vide order dated 21.11.2022 and had fixed the case for defence evidence.

5. Subsequently, the accused Chotu had moved an application 193 Kha to recall order dated 21.11.2022 on 18.01.2023, on the ground that he was neither given a copy of PAN Card nor given opportunity to file counter objections, but application 193 Kha has been rejected by the trial court by impugned order, by observing that the juvenile application of the accused was disposed on merits, after hearing both the parties, which cannot be recalled.

6. The Hon'ble Apex Court in the case of Rishipal Singh Solanki Vs. State of U.P. and Others (2022) 8 SCC 602 has held as below:- “33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.1 A claim of juvenility may be raised at any stage of a criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim. It can also be raised for the first time before this Court. 33.2 An application claiming juvenility could be made either before the Court or the JJ Board.

33.2.1. When the issue of juvenility arises before a Court, it would be under sub-section (2) and (3) of section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, section 94 of the JJ Act, 2015 applies. 33.2.2 If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. 33.2.3 When an application claiming juvenility is made under section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated under section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015).

33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in 2 of 4 Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7. This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.”

7. In Sanjeev Kumar Gupta Vs. State of U.P. (2019) 12 SCC 370, while obtaining Aadhar Card and driving licence the accused had voluntarily disclosed different date of birth. In these circumstances, his claim of juvenility on the basis of matriculation certificate was rejected and it was held by the Apex Court that the date of birth reflected in the matriculation certificate could not be accepted as authentic or credible.

8. In the present case, according to the PAN Card No. BNPPC7255J of the accused-Chotu submitted while executing the sale-deed dated

03.06.2019, it has come to light that in the PAN Card his date of birth is

01.01.1992. The PAN Card is an official document which has been got prepared by the accused himself and the date of birth mentioned in it, has also been provided by the accused. This is not a document which has been prepared by the informant. The date of birth recorded in the PAN Card can 3 of 4 not be discarded or disbelieved. In view of this, the trial court has come to the conclusion that the date of birth of the accused recorded in the PAN Card is correct and the accused has taken a false plea of juvenility, which is not sustainable.

9. Accordingly, the trial court had rejected the juvenile application 185 kha of the accused. It will be pertinent to mention here that a Criminal Court cannot review or recall its earlier order in the light of the bar enacted by Section 362 Cr.P.C., as such the trial court could not have recalled or reviewed its earlier order dated 21.11.2022.

10. In this revision the informant has already filed her counter affidavit about 1 ½ years ago, but till date no rejoinder affidavit has been filed by the revisionist.

11. Since, the contra evidence (PAN Card) submitted by the informant in trial court, has been got prepared by the accused himself, as such, the trial court has not committed any illegality in coming to the conclusion that the date of birth of the accused Chotu recorded in his PAN Card No. BNPPC7255J is correct and, accordingly, the accused was not juvenile on the date of alleged offence.

12. In view of the above discussion, this criminal revision is hereby rejected on merits.

13. A copy of this order be sent by Registrar (Compliance) to the trial court. Order Date :- 9.5.2025 SK Srivastava (Sandeep Jain,J.) 4 of 4 SAILESH KUMAR SRIVASTAVA High Court of Judicature at Allahabad