Court No. - 55
Case :- CRIMINAL REVISION No. - 1489 of 2016
Revisionist :- Abdul Hasan
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- Maohammd Nadeem,Mariyam Azam
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Singh,J.
Heard learned counsel on behalf of revisionist and Sri Abhinav Prasad, learned A.G.A. for the State.
This revision has been filed by the revisionist with a prayer to quash the judgment dated 30.04.2016 passed by Additional Sessions Judge, Court No. 1, Kannauj in Criminal Appeal No. 22 of 2013, Hashim Ali Vs. State of U.P. and another arises out of Case Crime No. 399 of 2013 under section 302 I.P.C., Police Station Saurikh, District Kannauj.
The contention of learned counsel on behalf of revisionist is that it was binding on the Court below to examine the circumstances where the age certificate of revisionist was duly proved and even unchallenged, it was mandatory requirement on the part of Court below to seek medical opinion, in this regard learned counsel for the revisionist has drawn attention of this Court towards Rule 12 of Juvenile Justice (Care and Protection of Children) Act, 2007. Rule 12 B of Juvenile Justice (Care and Protection of Children) Act, 2015 is quoted hereinbelow:-
"(b) and only in the absence of either (i), (ii) or (iii) of clause (a), 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."
Learned counsel for revisionist has drawn attention of this Court on judgment of B.M. Singhvi Vs. Anand Purohit reported in SCC (1988) Supp. 604 in paragraph No. 15 in which the Hon'ble Apex Court has held that any document which admitted in evidence by the trial court must confirm to the section 35 of the Indian Evidence Act, and three conditions must be satisfied as - (a) entry i.e. relied on must be one in public or other official book, register or record, (b) it must be an entry stating a fact and issue or relevant fact and (c) must be made by public servant in discharge of his official duty or any other person in performance of duty specially joined by Law.
It is further averred by learned counsel on behalf of revisionist that the ratio of case given by the Additional Sessions Judge, Court No. 1, Kannauj while passing the impugned judgment is not into the instant case because of the reasons:-
i. The age of revisionist was determined on the basis of first attending school duly proved by the Administrative Officer, a public servant, in accordance with law and the Juvenile Justice Board, Kannauj has recorded the clear-cut finding to the juvenility of revisionist.
ii. There is not a single evidence produced by the revisionist which creates any ambiguity as to the genuineness of documents of first attending school, as to the date of birth of the revisionist.
Learned counsel for the revisionist has also drawn the attention of this Court towards the judgment of Hon'ble Apex Court in Case of Ranjeet Goswami Vs. State of Jharkhand LAWS (SC)- 2013-9-56 in Criminal Appeal No. 1465 of 2013 decided on 18th September, 2013 in which it is held that there is no question of subjecting accused to medical examination by Medical Board since appellant was a Juvenile on date of occurrence as per school leaving certificate, he can be tried only by Juvenile Justice Board.
Learned counsel for revisionist further contends that release of a juvenile under section 12 of the Act, is mandatory unless there appears reasonable ground for believing that release is likely to bring him into association of no criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice but recording the aforesaid finding is not a mere idle formality but its strictly complied with.
After hearing the learned counsel for the parties and perusing the order impugned this court is of the opinion that the judgment dated 30.04.2016 passed by Additional Sessions Judge, Court No. 1, Kannauj in Criminal Appeal No. 22 of 2013, Hashim Ali Vs. State of U.P. and another arises out of Case Crime No. 399 of 2013 under section 302 I.P.C., Police Station Saurikh, District Kannauj. is hereby set aside and the matter is remitted back to the concerned court below for passing a fresh order after hearing learned counsel for the respective parties on merits within a period of two months from the date of production of certified copy of this order before him.
With these observations the present revision is disposed off.
Order Date :- 12.9.2018 Arti