Court No. - 76
Case :- CRIMINAL REVISION No. - 400 of 2021 Revisionist :- Anis Ahmad Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Avinash Mani Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Avinash Mani Tripathi (through phone-call) and Sri G.P. Singh, learned A.G.A. for the State.
None has appeared from the side of the opposite party no. 2 despite sufficient service.
This criminal revision has been preferred against the judgment and order dated 1.12.2020 passed by the Additional Sessions Judge, Court No. 1, Allahabad in S.T. No. 365 of 2016 arising out of case crime no. 07 of 2016, under Section 302/201 IPC, P.S. Attarsuiya, District Allahabad whereby claim of juvenility prayed by the revisionist through application no. 4 was rejected.
It has been argued by the learned counsel for the revisionist that the court below has erroneously rejected the prayer of the revisionist for being declared to be juvenile on the date of occurrence and in this regard, he has drawn attention to the report of C.M.O. concerned who had found age of the accused-revisionist to be 20 years which is annexed at page 33 of the paper book which was assessed on 18.12.2019 and the occurrence is stated to be that of 21.1.2016, therefore, he would be approximately 17 years of age and hence below 18 years but the same has been ignored and it has been recorded in the impugned order by the court below that the father of the revisionist Nimendra Kumar has stated the date of birth of the revisionist to be 11.5.2000 and the same has been stated on oath also but no document in support thereof has been annexed. It was also stated by the father of the revisionist that accused revisionist did not have any educational certificate and, therefore, it has been recorded by the court below that in Nagar Nigam, register is maintained recording therein date of birth and date of death of every person, hence father of the accused revisionist could have obtained a certificate from the said place which has not been obtained deliberately by him in order to conceal actual age of the revisionist and on that basis, court below has rejected the said application.
Learned A.G.A. has opposed the prayer.
I find that there is substance in the argument of learned counsel for the revisionist because impugned order passed by the court below does not appear to be in accordance with Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 which provides as follows:-
"94. Presumption and determination of age- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the 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:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
3. The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
It is apparent from the above provision that in case there is no educational certificate then next option available to the court would be the certificate issued by Municipal Corporation and even if that is not available, then the court would have no option but to resort to the medical examination of the accused and in the present case simply rejecting the prayer on the ground that document regarding age could have been obtained by the father of the revisionist from the Nagar Nigam where the register is maintained of the death and birth does not appear to be sound logic and reasoning for rejecting the said application, therefore impugned order deserves to be set aside and is, accordingly, set aside with the direction that the court below shall pass a fresh order after giving last opportunity of hearing in accordance with the provisions of law cited above within a period of 30 days positively.
The present revision is disposed of.
Order Date :- 12.4.2021 A.P. Pandey