JUDGMENT R.K. Rastogi, J.
1. This is an application for quashing the order dated 24.5.2005 passed by the Addl. District and Sessions Judge Court No. 5, Mathura in S.T. No. 312 of 2003 under Section 376 I.P.C P.S. Nauhjheel District Mathura.
2. The facts relevant for disposal of this application are that on 28.2.2003 at 5.05 P.M. Sri Sammu son of Shakoor r/o Qasba and Police Station Nauhjheel, District Mathura lodged a report at the above police station with these allegations that on the aforesaid date his minor daughter Km, Rukhsar aged about 9 years had gone to graze she goat . Akram and Nasir were also grazing their goats with her. At about 2 P.M. Chinlu son of Om Prakash scolded Akram and Nasir and asked them to go away. Thereafter lie took Ruksar to the Tube well room of Rajkumar Mamaji and ravished her there. Akram and Nasir told Sammu that Chintu had taken Ruksar to that room then Sammu, Kaley Khan and Yaseen went to that place and got the door of the tube well room opened; then Chintu came out of the room and ran away. Rukhsar told them weepingly that Chintu had ravished her and her clothes were blood stained.
3. On the basis of above report the police registered the case and after investigation submitted charge sheet against the accused.
4. The applicant moved a bail application and in that application a plea was taken that he was juvenile on the date of the incident. That bail application was rejected on the ground that he had failed to furnish any certificate to this effect that he was juvenile on the date of incident. Thereafter he filed criminal Misc. application No. 7395 of 2003 before this Court which was heard and decided by Hon'ble U.S. Tripathi, J. vide order dated 27.5.03 in which he directed the applicant to move a fresh application before the concerned Magistrate claiming himself to be minor along with proof of his minority with a direction to the Magistrate that he shall decide that application in accordance with law.
5. It appears that the accused accordingly moved an application before the Magistrate . He also filed a copy of the Scholar Register and Transfer Certificate issued by Janta Intermediate College, Nauhjheel (Matluira) in which his date of birth was described to be 2.3.1986. Sri Fyare Lal Sharma, clerk of the above school was examined before the Judicial Magistrate , Mathura to prove the above Transfer Certificate . The applicant had also examined his father Om Prakash who stated that his marriage had taken place on 17.2.1983 and Devendra Kumar alias Chinnu was his first issue born after marriage on 2.3.1986.
6. The prosecution produced the report of the C.M.O., Mathura on the point of age of the applicant. The C.M.O. after taking necessary x-ray of the applicant submitted a report on 3.6.03 in which he assessed the age of the applicant as 19 years because the apiphysis of his wrist joints and knee joints had been fused. The learned Magistrate was of the view that compared to the above evidence of school record regarding date of birth of the applicant the opinion expressed by the Doctor on the basis of medical evidence was more reliable. He, therefore, rejected the application of the applicant for declaring him to be juvenile . Aggrieved with that order the applicant filed Criminal Appeal No. 87/2003 before the Sessions Judge Mathura . It was heard and decided by Addl. District and Sessions Judge Court No. 7 Mathura vide his judgement and order dated 6.11.03. He was of the view that there was no illegality in the order passed by the learned Magistrate and the appeal was devoid of merits. He, therefore, dismissed the appeal. The applicant did not file any revision against that order before this Court, but he thereafter filed an application on 19.3.2005 before the court of Vth Additional District and Sessions Judge, Mathura for sending his case to the Juvenile Justice Board on the ground that he was juvenile on the date of incident. This application was rejected by the learned Addl. District and Sessions Judge, Court No. 5, Mathura referring to the judgement in the aforesaid criminal appeal. Aggrieved with that order dated 24.5.05 the applicant filed this application under Section 482 Cr. P.C.
7. In the present application no counter affidavit has been filed on behalf of the State or opposite party No. 2 in spite of service of notice. None appeared on behalf of opposite party No. 2. 1 have heard the learned Counsel for the applicant and the learned A.G.A. for the State.
8. It is to be seen that the date of incident is 28.2.03. On that date Juvenile Justice (Care and Protection of Children) Act, 2000 (called as 'Act') was applicable and under Section 2(k) of the Act "juvenile" or "child" means a person who has not completed eighteenth year of age, and if a dispute arises whether a person is juvenile or not that dispute is to be decided by the Juvenile Justice Board under Section 14 of the Act if Juvenile Justice Board has been constituted for the area where the offence was allegedly committed. I have been told that at present Juvenile Justice Board at Agra has got jurisdiction in respect of the juveniles of Maibura judgeship.
9. The procedure as to how the dispute regarding juvenileship of a person is to be determined, has been enumerated in Rule 22 of U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004 (Called as 'Rules'). Prior to enforcement of these Rules, the Model Rules framed by the Central Government under the Act were applicable. Sub rule (5) of the above Rule 22 runs as under:
(5) In every case concerning a juvenile or child, the Board shall either obtain:
(i) a birth certificate given by a corporation or a municipal authority; or
(ii) a date of birth certificate from the school first attended : or
(iii) matriculation or equivalent certificates, if available; and
(iv) In the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical 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.
10. The Model Rules framed by the Central Government which were applicable in the year 2003 when the offence was allegedly committed contained the similar provision. It is apparent on going through the above Rules that for the purpose of determination of age of the person who claimed to be juvenile or child, the Board shall obtain birth certificate given by the Corporation or a Municipal Authority or a date of birth certificate from the school first attended by that person or matriculation or equivalent certificate , if available; and if none of these three documents is available then in their absence the medical opinion regarding his age is to be taken into consideration,
11. In the present case, the applicant had filed the date of birth certificate from the school, and the applicant had also produced evidence to prove that certificate. Under these circumstances, the proper course for the courts below was to first record a finding on the point whether that certificate was reliable evidence or not. This aspect was to be considered first by the courts below, and the medical certificate regarding age could be considered only after rejecting the aforesaid dale of birth certificate issued from the School attended by the applicant. After perusal of the order of the learned Magistrate , I find that the Magistrate, instead of adopting this procedure , has held the applicant to be major on the basis of medical certificate observing that the medical assessment of age is more scientific and reliable method for determination of age. The above approach of the courts below is erroneous because in accordance with Sub Rule (5) of Rule 22 the Juvenile Justice Board or the Court has to first consider the certificates as referred to in Clauses (i), (ii) and (iii) of the Rules and if the certificates referred in these clauses are not available or if any of the aforesaid certificates referred to in these clauses, after production by the applicant, is not found to be reliable after appreciation and evaluation of evidence to prove that certificate, then in that case only, after rejection of that certificate, the medical certificate regarding age can be considered. The certificates referred in clauses (i) (ii) and (iii) of sub Rule (5) of the Rule 22 are not to be weighed with the medical certificate referred in Clause (iv) nor it is permissible to record any finding that as compared to these three certificates of clauses (i) to (iii) the medical certificate is more reliable. The court has to accept the birth certificate referred in sub clauses (i) , (ii) and (iii) if it is not found to be genuine and sufficiently proved. However, if the certificate of Clauses (i) to (iii) is not found to be genuine after evaluation of the evidence produced to prove or disprove that document, then only after rejecting that certificate, the medial opinion is to be considered but the birth certificate referred to in sub-clauses (i), (ii) and (iii) are not to be weighed with the medical certificate referred to in clause (iv) of the above Rules; and the medical certificate can be taken into consideration only after rejection of the birth certificate referred to in sub clauses (i) to (iii).
12. In view of aforesaid discussions, it is clear that the courts below did not follow the correct procedure as provided in sub Rule (5) of Rule 22 and the orders passed by them are liable to be set aside and the matter deserves to be remanded to the Juvenile Justice Board, Agra which has got jurisdiction to hear the matters of juveniles of Mathura judgeship also.
13. Accordingly, the order dated 24.5.2005 passed by the Addl. District and Sessions Judge Court No. 5, Mathura in S.T. No. 312 of 2003 under Section 376 I.P.C. P.S. Nauhjheel District Mathura is set aside. The orders dated 29.8.83 passed by the Judicial Magistrate Mathura in Crl. Case No. 112/03 State v. Chintu and dated 6.11.2003 passed by the Add. Sessions Judge Court No. 7, Mathura in Crl, Appeal No, 87/03, Devendra alias Chintu v. State are also set aside. The matter is remanded back to the Juvenile Justice Board, Agra for determining the juvenileship of the applicant with a direction that the Board shall, after providing opportunity to the parties to produce additional evidence, if any, (in addition to the evidence already produced before (he Judicial Magistrate, Mathura in Crl. Misc. Case No. 112/03 Stale v. Chintu which shall remain on record) on the matter of age of the applicant. decide the question of juvenileship of the applicant in accordance with sub Rule (5) of Rule 22 of the Rules referred to above. The record of the case shall be sent to the Juvenile Justice Board. Agra by the courts below at Mathura
14. The proceedings of S.T. No. 312 of 2003 under Section 376 I.P.C. P.S. Naiihjheel District Mathura pending before Addl. District and Sessions Judge Court No. 5, Mathura shall remain stayed till the finding on the point is recorded by the Juvenile Justice Board. The matter shall proceed further in accordance with law after the finding of Juvenile Justice Board on the point.
15. This application under Section 482 Cr.P.C. is partly allowed subject to the above directions.
16. Copies of this order shall be sent to the Addl. District & Sessions Court No. 5, Mathura and to the Juvenile Justice Board, Agra by the Registry for compliance. A cop) or this order shall also be issued to the accused applicant tree of cost who shall alongwith that copy appear before the Juvenile Justice Board , Agra on 11.10.2006.