High Court
Case Details
Neutral Citation No. - 2023:AHC:193617 Court No. - 80 Case :- CRIMINAL REVISION No. - 2645 of 2023 Revisionist :- X Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sadrul Islam Jafri,Ambreen Masroor,Sr. Advocate Counsel for Opposite Party :- G.A.,Adesh Kumar Hon'ble Subhash Chandra Sharma,J.
Legal Reasoning
Heard Sri N.I. Jafri, learned Senior Advocate assisted by Sri Sadrul Islam Jafri, learned counsel for the revisionist as well as Sri Adesh Kumar, learned counsel for the opposite party alongwith learned A.G.A. for the State and perused the record. The present criminal revision has been preferred by the revisionist through his mother under Section 102 of the Juvenile Justice (Care and Protection) Act-2015 (hereinafter referred to as "J.J. Act, 2015) to allow the present revision and set aside the impugned judgment and order dated 29.03.2023 passed by the learned Additional Session Judge/Special Judge (POCSO Act), Court No.2, Meerut, and the order dated 01.02.2023 passed by Juvenile Justice Board, Meerut and the revisionist may kindly be declared as juvenile and also prays to stay the operation of the aforesaid orders during the pendency of the trial before the learned court below. It is submitted by learned counsel for the revisionist that the child was born in hospital namely Angoori Devi, Nursing and Maternity Home, Meerut on 21.09.2006 from where birth certificate was issued by Dr. Neerja Chandra. On the basis of that certificate admission of the child was made in Class-I and date of birth of the child was recorded on the basis of aforesaid birth certificate issued from the said hospital. Further submitted that in subsequent academic record also same date of birth was recorded. There was some entries in admission form where whitener was used by the school authorities that was the reason record was not relied by the learned J.J. Board and holding it doubtful recourse of ossification test was taken for age determination which was required only in absence of birth certificate either from the Board or municipal authority. It is also submitted that the ossification test report was provided by the radiologist to C.M.O. in which age was first recorded as 18 years and then it was over written as 19 years on the basis of which a certificate was issued by the C.M.O. mentioning the age about 19 years. Learned J.J. Board did not consider this fact and also the benefit of one year plus or minus was not extended to the child but his age was determined as more than 18 years and his claim of juvenility was rejected. This fact was also not considered by the learned appellate court while deciding the appeal as a result the appeal was dismissed. It is further submitted that the statement of the mother was also recorded before the learned Board in which she clearly stated that the child was born in the hospital from where birth certificate was issued and it was produced at the time of admission in the school. She also contended that she could not produce the birth certificate before the learned court after 2-3 days, therefore, it can also not be said that the claim of juvenility on the basis of certificate issued from the hospital is being made first before the revisional court but it was also made before the learned J.J. Board. It is also submitted that the date of birth certificate from the hospital was also produced before the learned J.J. Board by the Principal of Indian Valley Public School after getting it attested with the original which was in her possession and was possessed by the mother of the child at the time of admission. It was not taken into consideration either by the learned J.J. Board or the appellate court. In this way, by ignoring the material document related to date of birth of the child the learned J.J. Board as well as learned appellate court committed an error in passing the orders in question, therefore, those orders are liable to be set aside and the present revision is to be allowed. Learned counsel for the opposite party as well as learned A.G.A. opposed the prayer as aforesaid and contended that in this case the entries made in the documentary record were over written. Even entry in the admission form and S.R. register were also over written and whitener was used that was the reason it was not accepted to be true as a result ossification test was got done on the basis of which his age was found to be 19 years and claim of juvenility was rejected on the basis of medical opinion which cannot be said to be unlawful and against the provisions of law but this criminal revision being devoid of merit is liable to be dismissed as having no force. "Section 94 : Presumption and determination of age 2. In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining. (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:" From perusal of record, it appears that the child first took admission in Indian Valley Public School on 06.07.2012 and continued his studies till 28.03.2015 and transfer certificate was obtained from the school which was proved as Ex- Kha 7 by the AW-2 Meenakshi principal of that school and attested the transfer certificate in which date of birth of the child was recorded as 21.09.2006 in figures and in words also. There is no any over writing or cutting. On the basis of that date of birth admission of child was taken in Class-IV on 07.04.2015 Bal Bharti Public School Mawana, Meerut regarding which admission form was proved by the CW-3 Raj Kumar accountant. In this admission form also same date of birth has been mentioned. There are copies of S.R. registers in which same date of birth of the child has been entered into and proved as Ex Kha- 4 & 5. The date of birth certificate was also produced before the learned Board by the Principal of Indian Valley Public School by comparing it with the original and during the examination before the learned Board it was proved by her. The mother of the child was also examined and she stated clearly that the child was born in the hospital and admission of the child was taken on the basis of that birth certificate. In this way, the date of birth of the child as was entered into in the hospital record and on the basis of which birth certificate was issued by the hospital and subsequent admission from Class-I to Class-X were made on the basis of school leaving certificate from the first attended school and the same date of birth got mentioned, it cannot be said to be manipulated or fabricated only on account of whitener used on some entries made in S.R. register. In my considered opinion, the date of birth of the child as recorded in education record is based on the birth certificate issued from the hospital where he was born, cannot be said to be unreliable but it is to be acted upon and made basis of determination of age of the child. Since date of birth was recorded as 21.09.2006 and incident took place on 20.11.2022, therefore, the age of the child on the date of incident can be calculated as 16 years, 1 month and 29 days. In this regard, the conclusion drawn by the learned J.J. Board as well as appellate court cannot be said to be based on material on record and in conformity with the provisions of law. It is also to note that the recourse of ossification test is to be taken only in the absence of Clause-i & ii of Section 94(2) of the Act. Hence the age of the child, on the date of incident will be sixteen years, one month & twenty nine days and the orders passed by the learned courts below require interference by this Court. Accordingly, this criminal revision having force is, hereby, allowed and the orders passed by learned J.J. Board on 01.02.2003 as well as by the appellate court dated 29.03.2023 are, hereby, set aside. Order Date :- 9.10.2023 Ashok Gupta Digitally signed by :- ASHOK KUMAR GUPTA High Court of Judicature at Allahabad