JUDGMENT R.K. Rastogi, J.
1. This criminal revision was filed on 15.12.2005 against the order dated 24.11.2003 passed by Sri K.P. Nigam, then Sessions Judge, Vatanasi in ST. No. 319 of 2004, State v. Subhash Yadav and Ors. Case Crime No. 109/03, under Sections 147, 323, 325, 504, 304 I.P.C., P.S. Chaubepur District Varanasi. Since the above revision was filed beyond time, an application under Section 5 of Indian Limitation Act supported with affidavit of Sri Ram Surat Yadav, father of the revisionist was filed for condonation of delay in filing the revision in which it was stated that the case was being handled by a junior Counsel who could not give proper advice to the revisionist and his father regarding filing of appeal or revision against the impugned order and so the revision could not be filed in time, and the deponent ultimately contacted Mr. Shailendra, Senior Counsel of Session Court who advised on 5.8.05 for filing revision against the impugned order. Then the revisionist moved an application for certified copy of the order and managed some money and then this revision was filed.
2. In spite of sufficient opportunity being given to the State no counter affidavit rebutting the allegations made in the application of the revisionist has been filed; as such, I am of the view that the application for condonation of delay deserves to be allowed. It is accordingly allowed. The delay in filing the revision is condoned. Let regular number be allotted to the file of the present criminal revision by the office.
3. I also heard the learned Counsel for the parties on the merits of the revision at the stage of its admission and I am finally deciding it at the admission stage with the consent of the parties.
4. It appears from perusal of the order passed by the learned Sessions Judge that a plea was taken before him by the accused persons that they were juvenile on the date of the incident. Accused Pintu, Rajesh and Bhaiya Lal filed copies of their High School Certificates and on the basis thereof they were held to be juvenile by the Sessions Judge. The revisionist, however, could not file any copy of the High School Certificate, he filed a copy of the school leaving certificate. Learned Sessions Judge was of the view that it was essential to prove this document by leading oral evidence thereon and since no evidence was led to prove this document, it was not proved and so he held that the revisionist was not a juvenile. Aggrieved with that order this revision has been filed.
5. I have heard the learned Counsel for both the parties and perused the record of revision.
6. The view of the learned Sessions Judge that the school leaving certificate requires proof is correct, but in that case he should have given an opportunity to the revisionist to prove it by leading evidence thereon. It appears that four accused persons, who had taken the plea of being juvenile, filed documents in support of their plea of juvenileship and out of them three accused named Pintu, Rajesh and Bhaiya Lal filed their High School certificates and the revisionist filed his school leaving certificate. Pintu, Rajesh and Bhaiya Lal were declared juvenile on the basis of High School Certificates as they did not require any formal proof, but in the case of accused revisionist it was necessary to prove the school leaving certificate by leading evidence thereon; and since he failed to do so, it was held that he was not juvenile . His above approach was erroneous. Since the school leaving certificate required proof, it was necessary for him to give the revisionist an opportunity to lead evidence for proving that document. The other party should also have been given opportunity to rebut the allegation regarding juvenileship of the revisionist., if it desired to do so, and thereafter the learned Sessions Judge should have recorded a finding on the point of juvenileship of the revisionist. In case he reached the conclusion that the school leaving certificate was not reliable and there was no other reliable record of school or municipal record regarding date of birth of the revisionist, he should have got the revisionist medically examined for the purpose of ascertainment of his age on the date of the incident but he did not do so. Under these circumstances, I am of the view that the order passed by him is apparently illegal and it is liable to be set aside so far as it relates to the revisionist.
7. The revision is, therefore, allowed and the order dated 24.11.2003 passed by Sri K.P. Nigam, then Sessions Judge, Varanasi holding that the revisionist is not juvenile is set aside and the matter is remanded back to the Court where S.T. 319 of 2004 is pending. The Presiding Officer of the Court may either decide the matter of juvenileship of the revisionist himself, or he may send the matter to the Juvenile Justice Board and the question of juvenileship of the revisionist shall be decided in the light of the observations made above in the body of the judgment, and the case shall proceed in the light of the finding on this point. The revisionist shall appear in the court of Sessions Judge on 28.1.2008.