Mohd. Ismail vs State of U.P.& Ors.

O.P. Jain, J.—Accused Saleem alias Raju and Nadeem alias Raja (hereinafter referred as Saleem and Nadeem) are alleged to have committed an offence under Section 302,I.P.C. on 28th July, 1996 along with another accused named Guddu. Saleem and Nadeem claim that their date of birth is 2061981 and 2161982 respectively. Their bail application was allowed by Juvenile Court on 20th January, 1997 holding that both of them were below 16 years of age on the date of the incident.

Being aggrieved against the order of release on bail, complainant Mohd. Ismile filed two separate appeals before the Sessions Judge which were heard together and on 23rd Sept. 1997 the learned Sessions Judge cancelled the bail granted to Nadeem on the ground that the bail order dated 20th January, 1997 was obtained from the Juvenile Court by concealing the tact that an earlier bail application of Nadeem had already been dismissed by the Sessions Judge on 18th October, 1996. Another reason given by the learned Sessions Judge for cancelling the bail granted to Nadeem was that in, the earlier bail application he was not claimed to be a juvenile. The learned Sessions Judge allowed accused Saleem to remain on bail till the question of age is determined by the Juvenile Court in accordance with Section 32 of the Juvenile Justice Act of 1986 (hereinafter called the Act). The learned Sessions Judge ordered the Juvenile Court to conduct enquiry under Section 32 of the Act and then pass necessary orders in respect of the bail of Saleem. The bail granted to Nadeem was cancelled but the enquiry with respect of the age was ordered to be held in case of Nadeem also and the Juvenile Court was directed to pass suitable orders after determining the age of the accused.

In pursuance of order dated 2391997 passed by learned Sessions Judge the Juvenile Court commenced an enquiry and it appears that during the pendency of the said enquiry the complainant filed an application praying that the accused may be got examined by a Medical Board with a view to determine their age. This application was rejected by the Juvenile Court on 42 1998. The complainant filed an appeal under Section 37 of the Act which was rejected by the learned Sessions Judge on 2631998. Under these circumstances the present revision has been filed by complainant Mohd. Ismile.

I have heard learned Counsel for the parties and learned A.G.A. for the State and have gone through the record.

Section 32 (1) of the Act reads as under:

"Where it appear v to a competent authority that a person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or not, stating his age as nearly as may be."

A bare perusal of the provisions shows that the Court is required to take "such evidence as may be necessary" and then gave a finding whether the person is juvenile or not. The Section neither casts a duly on the Court to send the accused for medical examination not it prohibits the same. So far as order dated 421998 is concerned, it appears from certain observations made by the learned Judge of Juvenile Court that the prayer for sending the accused for medical examination was not finally turned down. In the last two paragraphs of order dated 421993 the Court has observed as under:

A perusal of order dated 421998 passed by Juvenile Court, Bareilly shows that the learned Judge has completely misunderstood the ruling of the Apex Court in the case of Bhoop Ram v. Stateof UP, 1989 JIC 530 (SC): 1989 SCC (Cri) 486. What the learned Judge of Juvenile Court has observed is as under:

The learned Judge was under the impression that even in a case where the age according to School Certificate is 16 years and the age according to Medical Certificate is 30 years, reliance has to be placed on School Certificate. This is on account of a careless reading of the judgment of the Apex Court. Para 7 of the judgment in Bhoop Ram''s case (Supra) clearly shows that the date of the offence was 3rd October, 1975. According to School Certificate the date of birth of the accused was 2461960 and the accused had not completed 16 years of age on the crucial date as per the School Certificate. The medical examination of the accused was done on 30th April, 1987 and the Chief Medical Officer stated in the certificate that the accused appeared to be about 30 years of age as on''3041987. Therefore, according to Medical Certificate the age on the date of the offence (3101975) comes to about 18 years. Therefore, the variation between the Medical Certificate and School Certificate was of two years. The learned Judge of Juvenile Court wrongly inferred that in Bhoop Ram''s case the age of the accused was 16 years as per School record and 30 years as per Medical Certificate.

A perusal of impugned order dated 2631998 passed by Incharge Sessions Judge, Bareilly shows that the learned Judge has adopted the view taken by the Juvenile Court and has fallen into an error in coming to the conclusion that the age menlioned in the School Certificate is always to be preferred though there may be a great deal of variation between the age given in the School Certificate and the age determined by a doctor. It is true that the age of a person cannot be exactly determined by a doctor and there will always be a difference of one or two years between the actual age and the age determined by medical examination. That, however, does not mean that medical evidence is worthless. Evidence can be appreciated only after ii has been allowed to come on record. In the instant case the medical evidence has not been allowed to be brought on record.

In this connection the observations of the Apex Court in the case of Dayachand v. Sahib Singh and another reported in 1991 SCC (Cri) 438 para 7 may be referred to. In Dayachand''s case the Apex Court observed that "the tendency of many to have lesser age recorded in school is well known and, therefore, the date of birth being recorded as January 1,1973 in the other school, can be easily appreciated but cannot be accepted because the same is clearly in conflict with the medical evidence."

Dayachand''s case (supra) bas been followed by the Apex Court in (1997) 10 SCC 525 Deoki Nandan Dayma v. State of U.P. and another.

In view of the above, the revision is allowed and the orders passed by Juvenile Court, Bareilly on 421998 and the order passed by Incharge Sessions Judge, Bareilly on 2631998 are set aside. The Juvenile Court is directed to get the report of Chief Medical Officer, Bareilly with respect to age of accused Saleem alias Raju and Nadeem alias Raja and determine the age of the accused after taking into consideration all the material before the Court. Revision allowed.