1. This Criminal Revision is directed against the order dated 25.06.2010 passed by the learned Special Judge D.A.A. Urai/Jalaon in Criminal Case No.3/2010 (State Vs. Amol) dismissing the application of the revisionist/ accused to declare him juvenile.
2. The facts which are relevant for the disposal of this revision are that the revisionist/ accused is facing trail in case arising out of case crime No.199/2010 under Sections 302, 201, 394 and 411 Cr.P.C. of Police Station Eat, District Jalaun. During trial, the revisionist moved application purported to be under Section 7-A/14 of Juvenile Justice (Care And Protection of Children)Act 2000 (hereinafter referred as to 'the J.J. Act') to declare him juvenile. It is specifically mentioned that at the time of alleged occurrence, he was below then 18 years as per School certificate first attended by him, as such he is juvenile.
3. The learned Special Judge D.A.A. conducted the inquiry and took evidence as to determine the age of the revisionist/accused. The learned trial Court recorded the statements of the witnesses of both the sides. School leaving certificate of the applicant, extract of his Kutumb Register, Voter-list were also filed by both sides. The applicant also got examined the Head Master of the Government School where from the School leaving certificate was issued. Considering the evidence adduced by both the sides, the learned lower Court arrived at a conclusion that the applicant was not a juvenile at the time of commission of the offence and accordingly, dismissed his application. Applicant has preferred this revision under Section 53 of the J. J. Act.
4. Heard learned counsel for the revisionist, learned AGA and perused the record.
5. Section 7-A confers jurisdiction whenever a claim of juvenality is raised before any Court. The Court shall make an enquiry so as to determine the age of the applicant and shall record a finding whether the person was juvenile on the date of commission of the offence or not.
6. It appears that applicant has produced before the Court below school leaving certificate issued by the school alleged to be first attended by him, showing his date of birth. The learned lower Court, however, has not only considered oral evidence adduced by both the sides but has also taken into consideration other documents such as voter list, ration card etc. in the assessment of age of the applicant.
7. The U.P. J.J. (Care and Protection of Children) Rules, 2004 reads thus:
"22. Procedure to be followed by the Board in holding inquiries and the determination of age.-
iv.in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medial Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding his age, and, when 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."
8. A perusal of the above provision goes to show that the Court/Board while determining the age, shall at first instance consider the birth certificate issued by a competent authority. In case, it is not filed a date of birth certificate from School first attendant or matriculation or equivalent certificate. In the absence of aforementioned, the medical opinion of the duly constituted medical board regarding his age to be obtained. In this case, the applicant/ revisionist has filed his primary School leaving certificate, wherein his date of birth and other relevant particulars have been noted and being the School of first attended, this document alone must have been taken into considered to decide whether the applicant is juvenile or not.
9. The apex Court in Shah Nawaz Vs. State of U.P. (2011) 13 Supreme Court Cases 751 held as under:
"22. Another document relied on by the appellant is School Leaving Certificate dated 11.07.2007 issued by Nehru Preparatory School, Khurd, Muzaffarnagar wherein it noted the registration number, name of the school, student's name, date of birth (18.06.1989) written in words also, Father's name, occupation, caste, residential address, date of admission in school, date of leaving of school. The certificate contained the signature and seal of the Head Master and the same is dated 11.07.2007.
23.The documents furnished above clearly show that the date of birth of the appellant had been noted as 18.06.1989. Rule 12 of the Rules categorically envisages that the medical opinion from the Medical Board should be sought only when the matriculation certificate or school certificate or any birth certificate issued by a corporation or by any Panchayat or municipality is not available. We are of the view that though the Board has correctly accepted the entry relating to the date of birth in the mark sheet and school certificate, the Additional Sessions Judge and the High Court committed a grave error in determining the age of the appellant ignoring the date of birth mentioned in those documents which is illegal, erroneous and contrary to the Rules.
24. We are satisfied that the entry relating to date of birth entered in the mark sheet is one of the valid proofs of evidence for determination of age of an accused person. The School Leaving Certificate is also a valid proof in determining the age of the accused person. Further, the date of birth mentioned in the High School mark sheet produced by the appellant has duly been corroborated by the School Leaving Certificate of the appellant of Class X and has also been proved by the statement of the clerk of Nehru High School, Dadheru, Khurd- O-Kalan and recorded by the Board. The date of birth of the appellant has also been recorded as 18.06.1989 in School Leaving Certificate issued by the Principal of Nehru Preparatory School, Dadheru, Khurd-O-Kalan, Muzaffarnagar as well as the said date of birth mentioned in the school register of the said school at SI. No. 1382 which have been proved by the statement of the Principal of that school recorded before the Board.
25. .....................
26. We are also satisfied that Rule 12 of the Rules which was brought in pursuance of the Act describes four categories of evidence which have been provided in which preference has been given to school certificate over the medical report."
10. This Court in Kuldeep Singh vs. State of U.P. [2005 (28) AIC 574 (Alld. H.C. L.B.)] "5. The learned Sessions judge has not decided the question of the applicant being juvenile in accordance with the provisions of Rule 22 (5) of the Rules made under Juvenile Justice Act in which it is provided that the age of the a child or juvenile shall be determined on the basis of the birth certificate issued by the local bodies or the date of birth shown in the certificate from the school first attended or matriculation or equivalent certificates if available."
11.The provisions of Rule 22 (5) have binding effect, therefore, the learned Special Judge has no option except to follow the procedure laid down therein. It appears that learned Special Judge, has considered voter list, Kutumb Register and the oral evidence adduced by both the sides. The court below has not properly considered the school leaving certificate. Thus, learned lower Court has not decided the question of the applicant being juvenile in accordance with the provision of Rule 22 (5) of the U.P. J. J. Rule, 2004. The impugned order, therefore, suffers with patent illegality. The learned lower Court while deciding the application of the revisionist has substituted his own procedure and way in deciding whether the revisionist/accused is juvenile ignoring the mandatory provisions of Rule 22 (5) of the rules. Thus, the proceedings adopted by the Court below has vitiated the entire proceedings. The impugned order thus, suffers with material illegality and deserves to be set aside.
12. Revision is allowed. The impugned order dated 25.06.2010 is set aside. The learned Special Judge D.A.A. is directed to decide the application of the revisionist of his juvenality at the time of commission of the offence strictly in accordance with the provisions of Rule 22 (5) of the U.P. J. J. Rules 2004.
Dated:13.09.2012 Pr/-