Learned counsel for the revisionist has drawn attention of the
Court to the provisions of Section 94(2) of the Juvenile Justice
(Care and Protection of Children) Act, 2015 which reads thus :
"94 (2) In case, the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought before
it is a child or not, the Committee or the Board, as the case may
be, shall undertake the process of age determination, by
seeking evidence by obtaining-
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical
age determination test conducted on the orders of the
Committee or the Board:
Provided such age determination test conducted on the order of
the Committee or the Board shall be completed within fifteen
days from the date of such order."
Perusal of impugned order seems that the learned Special
Judge, POCSO Act has grossly erred in law while relying upon
the Learning License of the revisionist and Voter I.D. Card,
because none of these documents should be taken into account
while determining the age of a juvenile. When in the High
School Certificate the age of the revisionist is mentioned, which
is available before the learned Special Judge, POCSO Act, he
has to determine the age of the revisionist after taking into
account the High School Certificate alone, but he has not done
so and has wrongly rejected the claim of juvenality relying
upon the documents which are not categorized in the Act of
2015.
ALLAHABAD HIGH COURT
Case :- CRIMINAL REVISION DEFECTIVE No. - 136 of
2022
Revisionist :- Naushad Ali
Opposite Party :- State Of U.P. Through Secretary Home And
Another
Coram: Hon'ble Rahul Chaturvedi,J.
Dated: 8.4.2022
Heard Shri Suresh Kumar Maurya, learned counsel for the
revisionist and learned A.G.A. Perused the record.
There is delay in filing the present revision. Learned counsel for
the revisionist submits that on account of Covid pandemic the
revisionist could not come to the Court within time specified,
therefore, delay may be condoned.
Cause shown is sufficient. The delay condonation application is
allowed and the delay in filing the revision is condoned.
By filing of the present criminal revision the revisionist is
challenging the validity and legality of order dated 07.12.2019
passed by the Special Judge, POCSO Act/Additional Sessions
Judge, Court No.3, Bulandshahar in Criminal Case No.523 of
2017, u/s 363, 366, 376, 120B, 420 I.P.C. and Section 04 of
POCSO Act, P.S.-Kakod, District-Bulandshahr, whereby
Application No.3B moved on behalf of revisionist for declaring
him to be juvenile has been rejected.
I have perused the order impugned, whereby the Application
No.3B moved by Smt. Sabra, mother of the revisionist, has
been rejected holding that on the date of incident the revisionist
was major one as his date of birth is 7.4.1994.
Learned counsel for the revisionist has drawn attention of the
Court to the provisions of Section 94(2) of the Juvenile Justice
(Care and Protection of Children) Act, 2015 which reads thus :
"94 (2) In case, the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought before
it is a child or not, the Committee or the Board, as the case may
be, shall undertake the process of age determination, by
seeking evidence by obtaining-
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical
age determination test conducted on the orders of the
Committee or the Board:
Provided such age determination test conducted on the order of
the Committee or the Board shall be completed within fifteen
days from the date of such order."
Learned counsel for the revisionist has also drawn attention of
the Court to the High School Certificate of the revisionist,
annexed as Annexure-9, whereby it is clear that the revisionist
Naushad Ali has passed the High School Examination, 2015
from the Board of High School and Intermediate Education U.P.
and in the certificate his date of birth mentioned as 4.3.2001.
Submission is that the learned Special Judge while determining
the age of revisionist has not taken into account the either of the
documents as enumerated in Section 94(2) of the Juvenile
Justice Act, 2015 and declined to declare him (revisionist)
juvenile.
Perusal of impugned order seems that the learned Special
Judge, POCSO Act has grossly erred in law while relying upon
the Learning License of the revisionist and Voter I.D. Card,
because none of these documents should be taken into account
while determining the age of a juvenile. When in the High
School Certificate the age of the revisionist is mentioned, which
is available before the learned Special Judge, POCSO Act, he
has to determine the age of the revisionist after taking into
account the High School Certificate alone, but he has not done
so and has wrongly rejected the claim of juvenality relying
upon the documents which are not categorized in the Act of
2015.
Under the circumstances, the impugned order dated 07.12.2019
passed by the Special Judge, POCSO Act/Additional Sessions
Judge, Court No.3, Bulandshahar is hereby quashed and the
matter is remanded back to learned Special Judge, POCSO
Act/Additional Sessions Judge, Court No.3, Bulandshahar with
a direction to re-consider and re-visit the entire matter once
again and decide the matter afresh, after taking into account the
High School Certificate of the revisionist and authenticating
and evaluating its genuineness, by passing a well reasoned
order on merits strictly in accordance with law within a period
of eight weeks from the production of certified copy of this
order.
With the aforesaid direction, the present revision stands
disposed off.
Order Date :- 8.4.2022
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