Court No. - 65
Case :- CRIMINAL REVISION DEFECTIVE No. - 785 of 2019
Revisionist :- Neeraj Rajbhar And Anr.
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Amrendra Nath Rai,Sanjay Singh
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Amrendra Nath Rai, learned counsel for the revisionist and Sri Attrey Dutt Mishra, learned A.G.A. for the State.
Learned counsel for the revisionist has explained the reasons in the affidavit, which are sufficient and the delay is condoned.
The delay condonation application is allowed.
Office is directed to allot regular number to this revision.
This revision has been filed with a prayer to set aside the impugned order dated 30.10.2018 passed by the Chief Judicial Magistrate, Azamgarh, in Case Crime No. 156 of 2018, under Section 363, 365, 366, 376, 506 I.P.C. and 3/4, 16/17 of P.O.C.S.O. Act, P.S. Kapatanganj, District Azamgarh renumbered as Special Case no. 136 of 2018 pending before First Additional Sessions Judge, Azamgarh and with a further prayer to provide the custody of Mrs. Sonam (revisionist no. 2) to revisionist no. 1.
It is argued by the learned counsel for the revisionist that the impugned order dated 30.10.2018 has been erroneously passed by the Chief Judicial Magistrate, Azamgarh by which the custody of the victim has been given to her natural mother. Further it is argued that since by now the victim has attained the age of majority but still she is being detained by the victim in view of the above order dated 03.10.2018. He has further emphasised that as per the ossification test the radiological age of the victim was found to be above 18 years which is annexed at page 58. Although as per the high school certificate which is annexed at page 59 her date of birth is 10.07.2001. Therefore, he has argued that as per the in the law laid down by Hon'ble Apex Court in Suhani Vs. State of U.P., 2018 SCC Online SC 781, the radiological age would prevail hence, the impugned order needs to be quashed.
Learned A.G.A. has vehemently opposed the prayer of quashing.
I have gone through the impugned order, during argument it has been admitted by the learned counsel for the applicant that according to the High School Certificate, the victim was less than 18 years of age on the date when the impugned order was passed being 17 years 3 months and 20 days.
As regards the present case, it may be mentioned here that it is admitted to the learned counsel for the applicant that victim was less than 18 years as according to the educational record, she was minor on the date of occurrence. The age of the victim is required to be determined in accordance with the provision of Section 94 of The Juvenile Justice (Care and Protection of Children) Act, 2015 as has been held in Crl. Misc. Writ Petition No. 20816 of 2016, Nisha Naaz alias Anuradha and Another Vs. State of U.P. & 2 others decided on 6.02.2019 in which decision of Suhani Vs. State of U.P., 2018 SCC Online SC 781 has been distinguished and the finding of Hon'ble Apex Court in Jarnail Singh Vs. State of Haryana (2013) 7 SCC 263 has been followed which provides that victim's age shall also be decided following the same provision as are followed for determining the age of a juvenile 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 has been held that provisions of Juvenile Justice Act would be applicable in determining the age of the victim. In view of the above, it is found that since the victim was minor on the date when the impugned order is passed. I do not see any infirmity in the impugned order.
Accordingly this revision is deserved to be dismissed.
If the revisionists have any grievance, they may approach appropriate court for seeking release of the so called victim.
Order Date :- 27.9.2019 VPS