Shahid Ali Beg vs State of U.P. and Another

Vishnu Chandra Gupta, J.—Challenge in this Revision u/s 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000, (for short ''the Act'') is an order dated 27.9.2012 passed by Additional Session''s Judge Court No. 9, Lucknow in Criminal Misc. Case No. 02 of 2012, rejecting the application of the revisionist, moved in pursuance of an order passed in Cr. Revision No. 348 of 2012 by this Court (The High Court), to declare him juvenile. I have heard Sri Atul Verma. advocate, learned counsel for the revisionist, Sri Mukul Rakesh, advocate, learned counsel appearing on behalf of respondent/O.P. No. 2 and Smt. Suniti Sachan, learned A.G.A.

To decide this revision brief facts of the case are that O.P. No. 2 Momin Khan lodged a first information report of committing murder of Abu Basar Ali Khan @ Babu Khan on 2.12.2009 by revisionist and two others, in P.S., Malihabad on the same day, i.e., on 2.12.2009 at Case Crime No. 567 of 2009. After investigation a charge-sheet had been submitted. The court of sessions took cognizance after committal of case and proceeded with the trial against the three accused including revisionist.

From perusal of record of this revision it appears that revisionist before committal of case to court of sessions, moved an application before C.J.M., Lucknow for declaring him as juvenile and therein pleaded his date of birth as 12.2.1992. In support of it the revisionist filed progress report of Class II. Class III and Class IV of Exon Montessori High School alongwith transfer certificate issued by the same institution. In support of these documents Sanjay Kumar Kanchan, the clerk of the aforesaid school was examined.

The complainant opposed the move of the revisionist before court of C.J.M. and filed objection alongwith photo identity card issued by Election Commission of India, copy of affidavit of the revisionist filed before Regional Transport Officer, (for short ''R.T.O.'') Lucknow for issue of driving licence in his name and copy of driving licence, wherein date of birth of the revisionist was shown as 1.1.1987. The original documents from R.T.O. office were also summoned for verification. After considering the evidence available on record, C.J.M. dismissed the application vide its order dated 12.8.2010 (Annexure-4).

This order was challenged in criminal appeal u/s 52 of the Act before Sessions Court having criminal appeal No. 172 of 2010. The appeal was also dismissed vide order dated 19.5.2011 (Annexure-5) by Additional Sessions Judge, Court No. 9. The appellate court held that the C.J.M. after examining the matter in the light of provisions contained in Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short the ''Rule'') rightly decided the petition moved by the applicant/revisionist.

These orders were challenged before this High Court in Criminal Revision No. 348 of 2011. This Court vide its order dated 12.3.2012 (Annexure-6) passed the following order.

Heard learned counsel for the revisionist, Sri Mukul Rakesh, learned counsel for the respondent No. 2 and the learned State Counsel.

By means of this revision, the revisionist has prayed for setting aside the order dated 19.5.2011 passed by Additional Sessions Judge, Court No. 9. Lucknow, whereby the appeal for declaring the revisionist as juvenile has been rejected.

Submission of the learned counsel for the revisionist is that there are some new grounds which could not be taken before the trial court for considering the revisionist as a juvenile. Learned counsel submits that a direction may be issued to the trial court to consider the new grounds for determining the revisionist as juvenile.

After considering the facts and circumstances of the case, to meet the ends of justice, I direct the revisionist to move an application before the trial court and if such an application is made, the trial court shall consider and decide the same in accordance with law.

It is further provided that the trial court shall proceed with the trial, in accordance with law.

With the aforesaid directions, the revision is disposed of finally.

From perusal of the aforesaid order it reveals that this Court keeping in view the submissions of learned counsel for the revisionist, that there are some new grounds which could not be taken before the lower courts with regard to juvenility of revisionist, the High Court without setting aside the order under challenge directed the revisionist to move application before the trial court and further provided that if such application is made the trial court shall consider and decide the same in accordance with law. It is also made clear by High Court that trial court shall proceed with the trial in accordance with law.

After order passed by the High Court fresh application (Annexure-7) was moved before trial court (Additional Sessions Judge, Court No. 9) and not before the Chief Judicial Magistrate. Fresh Application has been registered as Criminal Misc. case No. 2 of 2012. In this application too, the revisionist relied upon the same evidence and narrating almost similar facts in brief which were stated in earlier application. In this application the revisionist annexed prospectus of Exon Montessori High College, report cards issued by the aforesaid school, photographs of annual function of the school, character certificate, progress report of nursery class, progress report of prep standard, progress report of Class-I, Class-III, Class-IV, Class-V, birth certificate issued by Executive Officer of Nagar Panchayat, Malihabad. The reference has been made in the application of a judgment of the Apex Court in Shah Nawaz Vs. State of U.P. and Another, , wherein it has been held that if matriculation certificate or school certificate or any birth certificate issued by a corporation or by any Panchayat or municipality is not available only then medical evidence shall be considered in view of Rule 12. In support of this application the mother of the petitioner filed her affidavit.

A supplementary-affidavit was also filed by the revisionist annexing with the statement of Sanjay Kumar Kanchan (Annexure-A-4) recorded again on 14.5.2012 in Cr. Misc. case No. 2 of 2012. The cross-examination was conducted with him by the opposite party/complainant on 7.9.2012.

Another supplementary-affidavit was filed by the revisionist in pursuance of the order passed by this Court with a view to bring on record the entire document which had been considered by the trial court for deciding application dated 9.4.2012 moved by the revisionist in the trial court.

Counter-affidavit has been filed from the side of complainant but no rejoinder has been filed by revisionist.

The trial court after giving opportunity of hearing to the complainant as well as to the petitioner, and after considering the evidence of Sanjay Kumar Kanchan and other material on record again rejected the application moved by the revisionist by impugned order dated 27.9.2012 (Annexure-1 to this revision).

Sri Atul Verma, learned counsel for the revisionist after relying upon a judgment of Apex Court in Umesh Chandra Vs. State of Rajasthan, , has submitted that evidence regarding entries in school register maintained in the course of performance of their duties by the staff would be relevant u/s 35 of the Evidence Act. The subsequent change in the date of birth by an affidavit with an object to get some benefit, such as admission in higher class, appearance in any examination etc. will not effect the authenticity of the original school entries, as has been observed in aforesaid case. Therefore, rejecting the date entered in the original school register on the ground of subsequent change made in date of birth of the accused/revisionist by an affidavit or otherwise would not be taken into consideration.

Learned counsel for the revisionist also relied upon the judgment of the Apex Court in Vijay Singh Vs. State of Delhi, , and submitted that reliable evidence in the form of school certificate, if available, that should be preferred in the light of Rule 12.

Relying upon another judgment of Apex Court in Ashwani Kumar Saxena Vs. State of M.P., , it has been submitted that if parents enter a wrong date of birth of their wards in the school register than it could not be presumed that they did it in anticipation that their children would commit crime in future. In such situation, they could successfully raised the claim of juvenility on the basis of age mentioned in school certificate.

The learned counsel for opposite party No. 2/complainant has submitted that alleged school certificates/records were not proved in the light of Section 35 of the Evidence Act and as such it has no evidential value. He relied upon the judgment of Hobble Supreme Court in Birad Mal Singhvi Vs. Anand Purohit, , wherein it has been observed by the Apex Court that an entry in regard to date of birth of a student recorded in admission register, being not a public document, must be proved to have been recorded at the instance of a person who was the guardian of the student.

The learned counsel for the O.P./Complainant further submitted that Municipal certificate has not been obtained at the time of birth but actually obtained during the pendency of proceeding for determination of age of the revisionist, and that too, on the basis of such date of birth which is not proved. Therefore, it cannot be the basis for deciding the revisionist as juvenile. Learned counsel for O.P. No. 2/Complainant further submitted that in this case the plea has been raised at the very belated stage of the trial. The accused got him bailed out as a major accused and did not claim himself to be juvenile supported by an observation by the court that the revisionist by appearance is not juvenile. Moreover, on the basis of age mentioned in the public offices based on statement of the accused himself and proved as such from the public records should be accepted against such evidence, which is not proved in accordance with law. If no evidence is available in the light of Rule 12, the evidence of accused recorded in public documents should be accepted, specially when revisionist has failed to show that the age recorded in the public offices was not on the instance of the revisionist or his parents.

The trial court while rejecting the application considered the age of revisionist keeping in view the statutory mandate contained in Rule 12. The court categorically held that petitioner fails to establish the authenticity of the school records from the evidence of Sanjay Kumar Kanchan. The revisionist failed to establish that the documents produced in the court were maintained by the school in its ordinary course of business and in performance of duty by a competent person. The trial court has categorically held that Sanjay Kumar Kanchan has not stated, on what basis the date of birth of revisionist was entered in the school record nor he could tell who entered the date of birth in the school register. Moreover, no explanation has been offered from the side of the revisionist, under what circumstances in his driving licence and voter identity card the date of birth was mentioned as 1.1.1987. A specific finding has been recorded by the trial court in regard to certificate issued by Nagar Panchayat, that it has been issued on 16th May, 2011, i.e., during the pendency of the proceeding for determining the age of the revisionist. It is also not proved who provided the date of birth of the accused to Nagar Panchayat and why the Nagar Panchayat has not issued the certificate at the time of birth of the accused/revisionist. It is also important to mention here that non of the parents of the revisionist has been examined to prove the date of birth of revisionist.

In a recent judgment, a three Judge Bench of the Apex Court in Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, , held that mere delay in moving the application would not be sufficient to reject the plea to declare a person as juvenile. The plea of juvenile could not be rejected on the ground of delay because it may be raised after disposal of the case and even, before Supreme Court. It was further observed that the courts are bound to decide the plea strictly in accordance with Rule 12. Section 49 of the Act exclude taking evidence on affidavit during course of inquiry for deciding the juvenility. Hon''ble Supreme Court also summarised the legal position in paragraph No. 39 at page 509-510, which is extracted below:

Now, we summarise the position which is as under:

39.1. A claim of juvenility may be raised at any stage even after final disposal of the case. It may be raised for the first time before this Court as well after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in appeal court.

39.2. For making a claim with regard to juvenility and after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility.

39.3. As to what material would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of delinquent necessitating further enquiry under Rule 12. The statement recorded u/s 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or of voters'' list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh and Others Vs. State of West Bengal, and Pawan Vs. State of Uttaranchal, , these documents were not found prima facie credible while in Jitendra Singh @ Babboo Singh and Another Vs. State of U.P., , the documents viz. school leaving certificate, mark sheet and medical report were treated sufficient for directing an inquiry and verification of the appellant''s age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purpose of Section 7A and order an enquiry for determination of the age of delinquent.

39.4. An affidavit of claimant or any of the parents or sibling or a relative in support of claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient Justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the Judicial conscience of the court to order an enquiry into determination of the age of delinquent.

39.5. The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by hypertechnical approach and the persons who are entitled to get benefits of the 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that the schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.

39.6. Claims of Juvenility lacking in credibility or frivolous claims of juvenility must be rejected by the courts at the threshold whenever raised

From the discussion made above, this Court has to see whether trial court had decided the plea of juvenility of revisionist in accordance with Rule 12 which is reproduced here in below:

Procedure to be followed in determination of Age.--(1) In every case concerning a child or a Juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such Juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the Juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in Jail.

(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;

(it) 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 or, 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.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusion proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.

In this case, it is not established that the accused got education till the stage of matriculation, so matriculation or equivalent certificate is not available.

In absence of this, the Court ought to consider the birth certificate from school (other than play school) first attended. The court finds that documents produced in support of date of birth of the accused on the basis of school record are not admissible because they have not been proved as required by the law. Moreover, the school record of play group and primary section have not been shown to be kept in accordance with Section 35 of the Evidence Act. This school record could not be put in the category of ''public document''. This fact is also not proved as to who entered the date of birth in the school register and on whose instance this date of birth was entered. The Original school record was also not brought before the court nor principal of school has been examined during inquiry. No explanation has been given for not producing the record of school or principal of school during inquiry. The documents relating to school are also not countersigned by any authority of basic education department like Basic Siksha Adhikari or so. It is very important that on one hand the revisionist stated that he obtained education till primary classes but on other had in his affidavit given to R.T.O., Lucknow on 29.10.2009 duly verified by Notary affixed with photo thereon, he stated as under:

Shapathpatra

Mai shapthi Me. Shahid Ali Beg putra shree Gani Ahamad Beg niwasi Mirjagang Paschim Anshik, Malihabad, Lucknow ka shasapth purvak viyan karta hoon:

Yeh ki uprokt patey ka bartman samay se niwasi hai tatha isthai rup se rahneywala hai, jiskey praman me nirvachan card ki chayaprati sanlagna hai.

Yeh ki sapathi ke vastavik janamtithi 1.1.1987 mata aiwam pita ke anusar hai iskey atrikta annya koi praman patra nahi hai.

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It is also worth notice that revisionist after rejection of his earlier application on the ground of documents relied upon by the earlier courts and knowing it well the existence of his driving licence and voter identity card, which were not shown to be cancelled, has not mentioned in his present application a single word, as to why these documents may not be taken into consideration. Even no explanation has been given in the application about these documents. Therefore, the trial court rightly discarded the school record produced by the revisionist.

Now third preference evidence is certificate issued by the Corporation or Nagar Panchayat but this certificate was issued during the pendency of proceedings of Juvenility of revisionist before the courts below and certificate was issued in May, 2011, that too, after long-long time of commission of the crime and also after issue of driving licence and voter identity card. It has also not been proved by the accused as to who entered the date of birth in the Nagar Panchayat or on whose instance the date of birth has been entered in Nagar Panchayat. The original record of Nagar Panchayat has not been brought before the court. This certificate is based on the date of birth shown in the school, which was not found to be proved. Therefore, this third category of evidence cannot be taken into consideration.

Now the question for consideration is, in absence of all these three categories of evidence, what option was open to the trial court to decide the juvenility of revisionist.

In the opinion of this Court trial court has rightly held that in absence of evidence as required in Clause (a)(i), (ii) and (iii), sub-rule (3) of Rule 12, the evidence giving exact date of birth of the accused based on public records and documents should be taken into consideration and Juvenility of accused/revisionist could be determined by the trial court in this case.

Therefore, the trial court was right in deciding the date of birth of revisionist as 1.1.1987 on the basis of evidence adduced by the complainant and relying upon the record of R.T.O. office from where the petitioner got his driving licence after filing of his own affidavit before the R.T.O. The issuance of licence was not denied nor it was denied that Election Commission issued the Voter Identity Card to him indicating his date of birth as 1.1.1987. The benefit of Umesh Chandra''s case (supra) cannot be extended in this case to the revisionist because the revisionist has failed to prove the school record in accordance with law as discussed above. Therefore, the effect of alleged subsequent change in date of birth does not arise for consideration.

This Court is of the firm view that when evidence on record about the exact date of birth based on the documents kept in public office being part of the public record was available, then there was no need to seek the medical opinion on the basis of ossification test to get the approximate age of revisionist. Considering all these facts and circumstances of the case, this Court is of the view that revision petition lacks merit and is accordingly dismissed.