Shah Nawaz vs State of U.P. and Another

This Judgment has been overruled by : Shah Nawaz Vs. State of U.P. and Another, AIR 2011 SC 3107 : (2011) 3 Crimes 171 : (2011) 8 JT 475 : (2011) 3 RCR(Criminal) 884 : (2011) 8 SCALE 423 : (2011) 13 SCC 751 : (2011) 9 SCR 859 : (2011) AIRSCW 4777 : (2011) AIRSCW 4632 : (2011) 7 Supreme 529 : (2011) 5 Supreme 476

Ashok Srivastava, J.—This revision has been filed by the revisionist against the judgment and order dated 13.1.2009 passed by learned Additional District Judge, Court No. 9, Muzaffar Nagar.

The brief facts of this case are that the revisionist is involved in Case Crime No. 215 of 2007 u/s 302/307 I.P.C., Police Station Charthawal, District Muzaffar Nagar. On 12.6.2007, the mother of the revisionist moved an application before the Juvenile Justice Board ( for short "the Board") as constituted u/s 4 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (For short "the Act") with the prayer that the revisionist be declared a juvenile as on the date of the alleged incident his age was less than 18 years. The learned Board considered the said application, collected oral as well as documentary evidence and after considering the evidence available before him and hearing the learned Counsel for both the parties, allowed the said application by holding that on the relevant date the revisionist was a juvenile. The complainant/opposite party No. 2 Smt. Khatizan felt aggrieved by the order passed by the Board and preferred an appeal before the learned Sessions Judge u/s 52 of the Act. The said appeal was registered as Criminal Appeal No. 11 of 2008 and was transferred to the court of IX Additional Sessions Judge for its disposal in accordance with law. The learned Judge heard the learned Counsel for the parties and thereafter by a detailed judgment, he allowed the appeal and set aside the order passed by the Board through which the Board had declared the revisionist a juvenile. Hence the present revision.

This case was listed on 29.9.2010 for hearing. On that date no one was present on behalf of opposite party No. 2 despite notice of the present revision. Learned Counsel for the revisionist and learned A.G.A. were present. Heard learned Counsel for the revisionist and learned A.G.A.

It has been submitted from the side of the revisionist that the judgment and order impugned has been passed in a mechanical manner and without application of judicial mind, that the order is illegal and perverse, that various statements and documents filed before the Board have been misread and misinterpreted by the learned appellate court. It has further been submitted that the date of birth of the revisionist has been mentioned in the High School marksheet as 18.6.1989 and this has been ignored by the learned Judge without any rhyme or reason and without assigning proper reason. It has also been submitted that the date of birth as mentioned in the High School marksheet has been duly corroborated by the school leaving certificate issued by the school of the revisionist. It has further been contended by learned Counsel for the revisionist that various mandates as given by the Apex Court have been ignored and misinterpreted by the learned appellate court and, therefore, the judgment and order impugned herein is bad in the eyes of law and, therefore, it should be quashed and the order of the learned Board should be restored.

The contentions of the learned Counsel for the revisionist have been vehemently opposed by learned A.G.A.

The date of the order passed by the learned Board is 24.1.2008 and that of the learned lower appellate court is 13.1.2009. On that date the Juvenile Justice (Care & Protection of Children) Rules, 2007 (for short "the Rules") had come into force. Rule 12 of the Rules prescribes the procedure to be followed in determination of age of a juvenile. This Rule prescribes that "In every case concerning a child or a juvenile in conflict with law, the age of such type of juvenile shall be determined in accordance with the procedure given in this rule keeping in view the physical appearance or documents, if available, and keeping in view the procedure as laid down in sub Rule 3 of Rule 12 of the Rules." The said sub Rule 3 of Rule 12 of the Rules is as follows:

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining

(a) (i) The matriculation or equivalent certificates, if available, and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of Clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while 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 and either of the evidence specified in any of the Clauses (a)(i), (ii), (iii) or in the absence whereof, Clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

The sub Rule 3 states that in every case, the age determination inquiry shall be conducted by the Court or the Board by seeking evidence by obtaining matriculation or equivalent certificate or certificate issued by the school first attended by the child or after considering birth certificate issued by a Corporation or a municipal authority or a Panchayat and in absence of any such documentary evidence, the age certificate issued by the competent medical board shall be taken into consideration keeping in view the provisions as contained in sub Rule 3 of Rule 12 of the Rules. In the instant case, admittedly there is no matriculation or equivalent certificate.

It has been argued by the learned Counsel for the revisionist that the revisionist had appeared in the High School examination and the Madhyamik Shiksha Parisad has issued a marksheet of the revisionist in which his date of birth is mentioned as 18.6.1989. This date of birth should be taken as true and conclusive as the marks-sheet is as good as a High School certificate.

This argument is misconceived. In Sub-clause (i) in Clause (a) of sub Rule 3 of Rule 12 of the Rules, the words used are matriculation or equivalent certificate, if available. Admittedly in the instant case, no matriculation or equivalent certificate of the revisionist is available. If in an enactment, the word certificate has been used, it should be taken as such and it cannot be substituted by the word marksheet. Had it been the intention of the legislature that the documents certificate and the marks-sheet are equivalent to each other for this purpose the word ''marksheet'' would have been also included there alongwith the words matriculation certificate. A marksheet is basically a statement of marks obtained by the student. If in a marksheet, the date of birth has been mentioned, that date cannot be treated as certified. In a certificate the date of birth of the student is properly certified by the authority duly recognized by law and rules who is competent to certify the date of birth. It is not proper to deviate from the regular and ordinary meaning of the word as used by the legislature especially when there is no scope for more than one interpretation. In Rule 12 of the Rules, the word ''certificate'' has been used and not ''marksheet''. Therefore, in my opinion, the word ''marksheet'' cannot be substituted for ''certificate''. Thus, in the instant case no matriculation or equivalent certificate is available. Therefore, in this case I have to consider what has been provided in Rule 12(3)(a) (ii), quoted above.

This matter has been dealt with in detail by the learned lower appellate court. It has discussed the evidences which were available before it. It has also examined the facts, oral as well as documentary evidence, available on record either in the file of the appeal or on the records of the Board.

I have examined the judgment impugned herein in the light of the facts as contained in various annexures filed by the parties in this revision. I do not find that the judgment assailed here suffers from any perversity. Factually the learned lower appellate court has observed that the school leaving certificate is manufactured and not believable and is void. It has given the reasons. The learned judge has also recorded the finding that as per school leaving certificate, the revisionist had passed 5 classes in just 4 years which goes to show that this certificate is not correct. It has been contended that the revisionist was a bright child. He was allowed to pass 5 classes in just four years but this contention is not acceptable. Had the revisionist been a bright child, he would not have failed in the high school. Moreso, no rule has been quoted before this Court which may indicate that there is any provision that a student could pass 5 classes in just four years.

It should be mentioned here that this Court is hearing a revision and not an appeal. Therefore, the factual aspect as dealt with by the learned judge in his impugned order cannot be examined by this Court. On this point, my attention has been drawn towards Jabar Singh Vs. Dinesh and Another, . In para 13 of the said judgment, the Apex Court has held that"A plain reading of Section 52 of the Act shows that no statutory appeal is available against any finding of the court that a person was not a juvenile at the time of commission of the offence. Section 53 of the Act which is titled ''Revision", however, provides that the High Court may at any time, either of its own motion or on an application received on that behalf, call for the record of any proceeding in which competent authority or court of session has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order, and may pass such order in relation thereto as it thinks fit. While exercising such revisional powers, the High Court cannot controvert itself to an appellate court and reverse the findings of fact arrived at by the trial court on the basis of evidence or material on record, except where the High Court is not satisfied as to the legality or propriety of the order passed by the trial court.

Keeping in view the above position of law, I do not find it reasonable to interfere with the inferences arrived at by the learned trial court which are based on facts and analysis of documents relating to facts as I am not dis-satisfied as to the legality or propriety of the order impugned.

In the above set of circumstances, now I have to seek the help of sub Clause (iii) which deals with a birth certificate given by a Corporation or by a Municipal Authority or a Panchayat. Admittedly, no such certificate is there on record. Therefore, I cannot take help of this provision.

Ultimately I have reached Rule 12 (3)(b) of the Rules. This clause states that in the absence of (i), (ii) or (iii) of the cause (a) of sub Rule 3 of Rule 12 of the Rules, the medical opinion will be sought from the duly constituted medical Board which will declare the age of the juvenile or child. In the instant case the revisionist was referred to the Medical Board. The Medical Board has given the age of the revisionist as 22 years. That paper is available on record reference whereof has been given in the judgment of the learned lower appellate court. It has also been mentioned that the veracity of the said document has not been challenged before the lower court. At this stage it is also important to mention that the voter list of 393 - Charthawal ( SC Constituency) prepared in the year 2007, the age of the revisionist has been mentioned as 22 years as on 1.1.2007.

As per the medical report, the age of the revisionist was found to be 22 years and he can be given a margin of one year keeping in view the provisions as given in Clause (b), mentioned above. Therefore, on the relevant date, the revisionist was definitely above the age of 18 years.

On the basis of the above discussion, I am of the view that there is no force in this revision and accordingly it is dismissed. The stay order, if any, stands vacated.

Let a copy of this order be sent to the learned District Judge, Muzaffar Nagar for its onward transmission to the court concerned who will proceed further in accordance with law.