Heard learned counsel for the applicant and learned AGA for the State and perused the record of the revision.
The applicant Ajeet @ Arjun Prasad is accused in case crime no. 8 of 2010 under Sections 363, 366 and 376 I.P.C. registered at P.S. Sigara, District-Varanasi. The applicant moved an application before the Chief Judicial Magistrate, Varanasi with a prayer that he be declared as juvenile as on the date of the incident, the age of the applicant was below 18 years and hence he is entitled to get protection available under the Juvenile Justice (Care and Protection of Children) Act, 2000. In support of his claim the applicant filed his High School Certificate in which 17.7.1992 is mentioned as his date of birth. The said application was allowed by the Chief Judicial Magistrate by his order dated 10.2.2010. The said order was challenged by the complainant Rajnikant Tiwari by filing an appeal before the Session Judge, Varanasi which was registered as Criminal Appeal No. 46 of 2010 (Rajnikant Tiwari Vs. State of U.P. and Another) and transferred for disposal before the Additional Sessions Judge, Court No. 10, Varanasi and allowed by him by his order dated 2.4.2010.
The instant application in revision has been filed by the applicant against the aforesaid order dated 2.4.2010 passed by Additional Sessions Judge, Court No. 10, Varanasi.
Learned counsel for the applicant has submitted that the court below committed a manifest error of law in setting aside the order of the Chief Judicial Magistrate declaring the applicant as juvenile in conflict with law and remanding the matter back to CJM, Varanasi for deciding the issue regarding the juvenility of the applicant afresh after holding an inquiry into the matter. He has next been submitted that although the court below in the impugned order has observed that the CJM, Varanasi failed to follow the procedure prescribed under The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the "Act") and The Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the "Rules"), while declaring the applicant to be a juvenile against the law, the court below has failed to specify the statutory provisions which had been violated by the court below while inquiring whether the applicant was juvenile or not on the date of the alleged incident.
Learned counsel for the applicant has also submitted that the order passed by the CJM, Varanasi declaring the applicant to be juvenile was based upon the High School Certificate of the applicant and the Appellate Court while setting aside the order of the CJM, Varanasi and remanding the matter back for reconsideration has not even adverted to the petitioner's High School Certificate. It has lastly been submitted that Rule 12 of the Rules framed by the Governor exercise of his power under Section 68 of the Act clearly provides that once there is documentary proof of age of a delinquent no further inquiry is required unless such documentary proof is disputed and since in the present case the genuineness of the applicant's High School Certificate has not been doubted at any point of time the finding recorded by the CJM by placing reliance upon the applicant's High School Certificate that the applicant was juvenile was not liable to be set aside.
Learned AGA made his submissions in support of the impugned order and submitted that the order passed by the Appellate Court is based upon relevant considerations and supported by cogent reasons.
After having considered submissions advanced by the learned counsel for the parties and perused the material brought on record, I am of the view that the submissions made by learned counsel for the applicant have substance and liable to be accepted.
The determination of age of an accused claiming himself to be a juvenile is to be made in accordance with the provisions made under the Act as well as the Rules framed thereunder. Rule 12 of the Rules which provides the complete procedure which is to be followed by the Court in holding the inquiry for determination of age of an accused who claims himself to be Juvenile reads as hereunder:-
1. In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law withing a period of thirty days from the date of making of the application for that purpose.
2. The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
3. In every case concerning a child or juvenile in conflict with law, the age of determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, 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 order 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 the juvenile in conflict with law. (4)If the age of a juvenile or child, or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a cop of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule(3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict in law.
From the bare reading of Rule 4, it is apparent that in every case concerning a child or a juvenile in conflict with law the Court or the Board, as the case may be the committee shall determine the age of a juvenile or child or a juvenile in conflict with law by seeking evidence by obtaining the documents enumerated in Rule 12 (3) (a) (i), (ii) and (iii) and it is only in the absence of either of the document specified in Rule 12 (3) (I), (ii) and (iii) opinion will be sought from a duly constituted Medical Board which shall declare the age of juvenile or child as provided by Rule 12(3)(b).
In the instant case the age of the applicant was determined by the CJM, Varanasi on the basis of his date of birth mentioned in his High School Certificate which is a document covered under Rule 12 (3)(a)(i)(ii) and (iii) of the Rules. It is not the case of the respondents that the High School Certificate of the applicant is a forged document. Thus in my opinion, the CJM, Varanasi rightly held the applicant to be a juvenile. The Appellate Court clearly exceeded his jurisdiction in setting aside the order of the CJM, Varanasi on absolutely vague and general considerations. The Appellate Court has totally failed to give any reason in his order for ignoring the applicant's High School Certificate and to evaluate the probative value of the applicant's High School Certificate for the purpose of determining his age. Before setting aside the order of the CJM, Varanasi declaring the applicant to be a juvenile in conflict with law it was incumbent upon the Appellate Authority to have given reasons for disaggreing with the finding accorded by the CJM, Varanasi in his order and for discarding the material relied upon by the CJM, Varanasi in support of his conclusion. This having not been done the order passed by the Appellate Authority remitting the matter back to the CJM, Varanasi for deciding the issue of juvenility of the applicant cannot be sustained.
In my opinion the order passed by the CJM, Varanasi declaring the applicant as juvenile in conflict with law did not suffer from any illegality or infirmity warranting any interference of the appellate court.
For the aforesaid reasons, this application in revision is allowed. The order dated 2.4.2010 passed by Additional Sessions Judge in Criminal Appeal No. 46 of 2010 (Rajnikant Tiwari Vs. State of U.P. and Another) is set aside and the order passed by the CJM, Varanasi in criminal misc. application no. 33 of 2010 in case crime no. 8 of 2010 under Sections 363, 366, 376 I.P.C. declaring the applicant juvenile in conflict with law is restored. No order as to costs.
Order Date :- 14.6.2010 Prabhat