GAJAB SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) Present petition has been filed challenging the order dtd. 3/1/2018 passed by Additional Sessions Judge Faridabad; dismissing an appeal against the order dtd. 24/4/2017 passed by Judicial Magistrate First Class, Faridabad, whereby the application of the petitioner for declaring him as a juvenile was rejected. The petitioner is involved in a case arising from FIR No.78, dtd. 15/3/2017, under Ss. 148, 149, 307, 506, 452 IPC and 25/54/59 of the Arms Act, registered at Police Station Sadar Ballabgarh, Faridabad. To avoid full rigour of criminal law, the petitioner had filed application for declaring him as a juvenile; claiming that he was less than 18 years at the time of commission of offence and hence, he should be tried by Juvenile Justice Board.

(2.) The application filed by the petitioner was adjudicated upon by Judicial Magistrate First Class, Faridabad and it was held that the date of birth of the petitioner is to be taken as 7/8/1996. Hence, as on the date of occurrence, the petitioner's age comes to be more than 18 years. Therefore, the petitioner was not juvenile. Aggrieved against the order passed by the Court of Judicial Magistrate, the petitioner preferred an appeal before the Court of Additional Sessions Judge, Faridabad. However, the lower appellate Court also dismissed the appeal and upheld the order passed by the Judicial Magistrate. Accordingly, it was ordered that the petitioner would be taken as an adult and not a juvenile. While so deciding, the Courts below have relied upon the date of birth of the petitioner as mentioned in the Government Primary School, Mujedi, where the petitioner was first admitted in the first class in the year 2002 and there his date of birth was recorded as 7/8/1996. While dealing with the evidence on file, the Courts below have recorded that the petitioner has claimed to be admitted in Sai Senior Secondary School, Faridabad on 24/8/2008 in first class and there his date of birth was recorded as 26/8/2003. Thereafter, the petitioner had taken admission in Gangotri Modern Senior Secondary School, Ballabhgarh on the basis of School Leaving Certificate issued by Sai Senior Secondary School. However, while getting admission in Gangotri Modern Senior Secondary School, the date of birth of the petitioner was, once again, changed and it was mentioned as 23/7/1999. The petitioner had even left this school and got admission in Jai Bharat School in 10th class. On the basis of the School Leaving Certificate issued by Gangotri Modern Senior Secondary School, the date of birth recorded in Jai Bharat School is 23/7/1999. Therefore, it is this date which has come in the Matriculation Certificate. If the age of the petitioner is counted from 23/7/1999, then he is juvenile on the date of commission of crime. However, the record, as brought on the court file, shows that the date of birth i.e. 23/7/1999, as mentioned in Gangotri Modern Senior Secondary School and Jai Bharat School, itself is based upon date of birth mentioned in Sai Senior Secondary School, where it is differently recorded as 26/8/2003.. Therefore, the Courts below have refused to believe the matriculation certificate; which carries the date of birth of the petitioner as 23/7/1999. Aggrieved against the order passed by lower appellate Court, petitioner has filed the present revision petition.

(3.) Learned counsel for the petitioner has argued that as per the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short "the Rules"), Rule 12 prescribed the procedure to be followed for determination of age, where an accused claims to be juvenile. It is submitted that as per the provisions of the Rule 12, the primacy has to be given to the matriculation certificate, if available. The other material, i.e., the date of birth certificate from the school can also be relied upon but only if matriculation certificate is not available. If school certificate is not available, only then the birth certificate issued by the Municipal Corporation or an authority is to be taken into consideration. Hence, it is submitted by the counsel that since the first certificate i.e. matriculation certificate itself is available, therefore, the other certificates are excluded, per se, from the consideration for the purpose of determination of age of the petitioner, and as per the date mentioned in the matriculation certificate, the petitioner is a juvenile. Hence, both the Courts below have committed a grave illegality by not following the provisions of the above mentioned Rule, while determining the age of the petitioner. It is further submitted by the counsel for the petitioner that in another case, relying upon the same matriculation certificate, petitioner is being tried as a juvenile. This fact was duly brought to the notice of the Courts below. However, that has been brushed aside by the Courts below on the ground that the other relevant material was not available in those proceedings. In support of his argument, the learned counsel for the petitioner has relied upon judgments of Supreme Court rendered in Siba Bisoyi vs. State of Odisha, 2017(4) R.C.R. (Criminal) 409, Lok Nath Pandey vs. The State of Uttar Pradesh and Another, 2017 AIR (SC) 3866, Ashwai Kumar Saxena vs. State of M.P., 2012(4) R.C.R. (Criminal) 391, Parag Bhati (Juvenile) through Legal Guardian-Mother-Smt. Rajni Bhati vs. State of Uttar Pradesh and another, 2016(2) R.C.R. (Criminal) 1031 and Division Bench judgment of this Court rendered in Vikram Singh vs. State of Haryana, 2017(3) R.C.R. (Criminal) 301. On the other hand, learned counsel for the complainant submitted that the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short "the Act") has superseded the earlier provisions laid down in the Rules. A new provision has been enacted in the Act itself. According to that provision, the matriculation certificate no more enjoys the place of primacy, while determining the age of the accused. The date of birth certificate from the school and the matriculation certificate have been put at par; so far as their evidentiary value is concerned. It has been left to the Court to assess the age of the person brought before it. It is further submitted that sub-sec. (3) of Sec. 94 of the Act makes the age, as determined by the Committee/Court/Board, as the true age of the person for the purpose of trial. It is further submitted that the date of birth of the petitioner is mentioned differently in all the schools. Even the matriculation certificate bears a date of birth of the petitioner, which is based, further, upon a date of birth certificate which was given by the third previous school. However, admission record in the said third previous school does not testify the date of birth as mentioned in the matriculation certificate. Hence, both the Courts below have rightly declined the application moved by the petitioner.