Court No. - 24
Judgment reserved on 17.5.2019 Judgment delivered on 31.5.2019
Case :- CRIMINAL REVISION No. - 2511 of 1999 Revisionist :- Virendra Kumar Opposite Party :- State Of U.P. And Others Counsel for Revisionist :- Braham Singh,C.B.Singhal,Mukhtar Alam Counsel for Opposite Party :- Govt. Advocate
Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Braham Singh, learned counsel for the revisionist and Sri Gambhir Singh, learned A.G.A. for the State and perused the record.
2. This Criminal Revision has been preferred against the judgment and order dated 6.11.1999 passed by Kumari Sadhna Thakur, Special Judge (Juvenile Court), Moradabad in Case No. 52 of 1998 (Crime No. 102 of 1998), under Section 302/201 IPC, P.S. Shiv Hara, Bijnor, whereby she has allowed the application of opposite party no. 3 and has cancelled the bail of the revisionist in the above crime number and also in Crime No. 174 of 1998, under Section 25 of Arms Act and has taken the revisionist in judicial custody and sent him to Jail.
3. It has been argued by the learned counsel for the revisionist that the impugned order is absolutely erroneous because the Officer concerned was not having jurisdiction to pass this order in view of Section 362 Cr.P.C., as earlier her predecessor had passed order dated 14.7.1998 holding the revisionist to be juvenile on the basis of determining his age to be fifteen and half years. It was emphasized by him that once the age had been determined by her predecessor, there was no opportunity for her to change the said order, as it was barred under Section 362 Cr.P.C. and moreover there is no provision under the Code of reviewing earlier passed order. He further argued that if any order was passed under the Juvenile Justice Act, 1986, if any party felt aggrieved by the same, it had option under Section 37 of the said Act to prefer an appeal against the same within 30 days from the date of passing such order before court of Sessions. In this case, it appears that complainant/informant of the case had approached the successor Officer on 1.5.1999 stating therein that in the present case his son was murdered in which five accused were involved including the revisionist Virendra, whose age at the time of occurrence was more than 16 years but on the basis of forged papers he had got the age determined to be less than 16 years and had got him bailed out, which needed to be set aside. The said application was totally beyond jurisdiction of the Officer concerned to entertain, as the complainant had an opportunity to approach the appellate court but instead of doing that he has preferred to move the said application before the trial court itself to get the bail cancelled and to get the accused held to be not a juvenile being above 16 years of age.
4. I have perused the earlier order of the trial court dated 14.7.1998. It is recorded in it that an inquiry was conducted by the said Officer in respect of determining age of the accused-revisionist. A copy issued by Janta Junior High School, P.S. Kotwali, District Bijnor (Ext. Ka-1) was filed, in which the date of birth of accused was recorded as 17.12.1982 and besides that, a copy of school leaving certificate was also submitted which is Ext. Ka-2, in which also his date of birth was recorded to be the same. It is further recorded in the said order that C.W.-1 Pramod Kumar, Assistant Teacher, Uchchtar Madhyamik Vidyalaya, Kotwali Dehat, District Bijnor was examined, from whose side, a copy of admission register, which was self attested, was also submitted which is Ext. Ka-1 and the said witness has proved that the age of the accused was recorded in the said document as 17.12.1982 and on the basis of said date of birth, the age of the accused, on 10.6.1998, was found to be less than fifteen and half years. It is also recorded in the said order that concerning the said accused, medical examination was also conducted on 2.7.1998, on the basis of which, his age turned out to be 18 years and hence on the date of inquiry i.e. 10.6.1998, his age was found to be less than 18 years. In this regard, Dr. R.K. Dhawan, Chief Medical Officer was also examined as CW-2, who had stated that whether the age of the accused is less than 15 years or less than 18 years, to determine the same, he gives order for X-ray of the accused to be conducted and then only he could determine in this regard. This witness has also stated that prima facie, he sees first whether the age is less than 15 years or there about or above 18 years and on that basis only he orders for X-ray. After X-ray, C.M.O. has found the age of accused revisionist to be 18 years but on the basis of law laid down by Apex Court, it was held by the trial court that the determination of age would be made, of the accused, on the basis of date of birth mentioned in the school leaving certificate and not on the basis of medical examination report and after having relied upon the said law, he determined the age of the accused on 16.4.1998 i.e. on the date of incident to be about fifteen and a half years. The said order dated 14.7.1998 has been set aside by passing the impugned order dated 6.11.1999 by successor Officer holding that the in changed circumstances an application has been given by the complainant along with the certificate issued from the concerned schools on the basis of which the date of birth of the accused is 20.7.1981 and thus on the date of occurrence, his age would be more than 16 years and hence, a prayer was made that treating the accused to be major, his bail should be rejected. The said argument of the complainant side was accepted by the said Officer observing in the impugned order that it was admitted to both the sides that accused had studied in Primary Pathshala, Roshanpur, where his date of birth was recorded as 20.7.1981, hence the same should be taken to be correct.
5. The argument on behalf of the accused as to how the said age was recorded and by which teacher, has not been proved, hence the said entry could not be taken to be true because it was necessary that the said date was entered in admission form of school. The accused had studied in Primary Pathshala, Roshanpur in Class-1, then how the date of birth recorded there as 20.7.1981 has been changed as 17.12.1982, when he took admission in other school called Ganga Bal Vidyalaya and Janta Junior High-school Kotwali, Bijnor. Because of this discrepancy in respect of entry of date of birth in certificates in the impugned order, the concerned Officer has discarded the school entries and has relied upon the medical evidence and based on that, she has arrived on a conclusion that according to medical report, the age of the accused was found to be 2.7.1998 and hence more than 18 years by C.M.O. as he was found to have 14-14 teeth and elbow joint was found fused. Therefore, the said Officer concluded the age of the said accused is to be 16 years as per medical report and held that the same would prevail over the school documents in which contradictory entries were found to have been made with respect of his age.
6. In view of above, this Court finds that there is substance in the argument of learned counsel for the revisionist that the trial court could not have changed/received its order dated 14.7.1998 by which it had come to the conclusion that the accused was juvenile of about fifteen and a half years because at that time below 16 years was the criteria to judge the accused to be juvenile as per Rule 2(h) of Juvenile Justice Act, 1986, but on an application moved by the complainant, the successor Officer has re-determined the age of the said accused and along with it has cancelled the bail also as bail was granted on account of accused being held juvenile observing that the earlier order was erroneously obtained on the basis of wrong documents being placed before the court.
7. As regards, the said impugned order having been passed on the basis of forged papers, the argument does not appear to stand substantiated from the perusal of papers/evidence on record, rather this Court finds that entertaining the application to that effect appears to be beyond jurisdiction of the said Magistrate because the complainant had opportunity under Section 37 of the said Act to file appeal against the order dated 14.7.1998, if he was aggrieved by that instead of seeking its withdrawal/setting aside, therefore impugned order dated 6.11.1999 is set aside with an option to the complainant to approach the appellate court to seek redressal of his grievance at appropriate forum.
8. Interim order dated 23.12.1999 stands discharged.
9. Let a copy of this order be transmitted to the trial court/Juvenile Justice Board to proceed in accordance with law.
Order Date :- 31.5.2019 A.P. Pandey