# Gaurav Shukla Revisionist v. State Of U.P. & Anr

- **Citation:** (2016) 3 ILRA 472
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016
- **Bench:** Mahendra Dayal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-shukla-revisionist-v-state-of-u-p-anr-53796
- **Pages:** 17

## Headnote

The revisionist Gaurav Shukla, who is involved in a case under Sections 365, 376 IPC has claimed
juvenility on the basis of high school mark-Sheet in which his date of birth has been recorded as
02.10.1989. No one was named in the FIR. When the police proceeded with the investigation, the
name of the revisionist Along with other co-accused came into light. He approached this Court by
way of filing Writ Petition No.3936 (MB) of 2005, in which the arrest of the revisionist was stayed.
While the Investigation was in progress, the police of Police Station Mahanagar, Lucknow registered
another criminal case against the revisionist on 19.07.2005 being Case Crime No.260/2005. In this
Case also, the revisionist on his appearance claimed juvenility on the basis of high school mark-sheet
and when the matter was referred to the Juvenile Justice Board, the Board on the basis of High school
mark-sheet, declared the revisionist as juvenile. The present revision being Crime No. 80/2005 was
3 All. Gaurav Shukla Vs State Of U.P. & Anr.
473
also referred to the Juvenile Justice Board as the Revisionist had claimed juvenility and in this case
also, the Juvenile Justice Board declared him as juvenile on the Basis of High school mark-sheet in
which his date of birth has been Mentioned as 02.10.1989. This order was challenged by the
Opposite party No.2 by filing a belated criminal appeal in which the appellate Court, condoned the
delay and after hearing, set Aside the order dated 18.10.2005 and remitted the matter back to
The Juvenile Justice Board with the direction that a fresh inquiry be made with regard to the age
of the revisionist. The learned Appellate court directed the Juvenile Justice Board to examine the
documentary Evidence with regard to the age of the revisionist and then decide as to whether he was
juvenile on the date of Occurrence. The Board conducted a detailed inquiry and Refusing to declare
the revisionist as juvenile. This order was Again challenged by the revisionist, This appeal was also
dismissed by the appellate Court and that have been Challenged by the revisionist before this Court.In
the present case, since the exact date of birth of the revisionist is known and is a conclusive proof,
therefore, giving one year grace is not permissible, as the same is meant only in those cases, where
the exact assessment of the age cannot be done.

Held: Para- 1. The Juvenile Justice ( Care and Protection of Children) Act , 2000 has been
enacted with the object for providing proper care , Protection and treatment by adopting a childfriendly approach in the adjudication and disposition of matters in the best interest of Children
and for their ultimate rehabilitation, but at the Same time, it has also to be seen that a heavy duty is
cast upon the Courts that while determining the age , the Court has to bear in Mind that
unscrupulous should not get himself declared as Juvenile on the basis of wrong certificate. The
determination of Age is a delicate matter and it cannot be decided in a routine Manner

Case Law discussed:

Smt. Leena Katiyar vs. State of U.P. & Ors., reported in 2015 (6) ALJ Page 1.

## Text

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472 INDIAN LAW REPORTS ALLAHABAD SERIES
the affidavit filed in support thereof but has only taken into account the evidence collected
by the I.O., it was not obligatory on the part of the Magistrate to follow the procedure of
complaint case.

13. Having heard the learned counsel for the applicant and the learned AGA and also
on perusal of the law cited by them, the law which emerges out is that the Magistrate, if
chooses to take cognizance under Section 190(1) (b) Cr.P.C, he is prohibited from taking
into consideration any material other than the case diary. The contents of the protest petition
or the affidavits filed in support thereof, cannot be taken into account by the magistrate. If
the Magistrate intends to take into consideration the protest petition or the affidavits filed in
support thereof, he has to follow the procedure of complaint case.

14. In the present case, from the perusal of the impugned order, I find that the learned
Magistrate has not taken into consideration the contents of the protest petition or any other
material brought by complainant, but has only taken into account the statement of the
witnesses who were interrogated during investigation. I, therefore, do not find any illegality
or infirmity in the order passed by both the courts below and as such, the application under
Section 482 Cr.P.C. lacks merit and is accordingly Dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.03.2026

BEFORE

THE HON'BLE MAHENDRA DAYAL, J.

Criminal Revision No. - 130 of 2015

Gaurav Shukla ...Revisionist
Versus
State Of U.P. & Anr ...Respondents

Counsel for the Revisionist:
Dr. L.P. Mishra, Shri Sharad Pathak

Counsel for the Respondents:
Shri Zafaryab Jilani, Additional Advocate General Shri Jalaj Kumar Gupta

The revisionist Gaurav Shukla, who is involved in a case under Sections 365, 376 IPC has claimed
juvenility on the basis of high school mark-Sheet in which his date of birth has been recorded as
02.10.1989. No one was named in the FIR. When the police proceeded with the investigation, the
name of the revisionist Along with other co-accused came into light. He approached this Court by
way of filing Writ Petition No.3936 (MB) of 2005, in which the arrest of the revisionist was stayed.
While the Investigation was in progress, the police of Police Station Mahanagar, Lucknow registered
another criminal case against the revisionist on 19.07.2005 being Case Crime No.260/2005. In this
Case also, the revisionist on his appearance claimed juvenility on the basis of high school mark-sheet
and when the matter was referred to the Juvenile Justice Board, the Board on the basis of High school
mark-sheet, declared the revisionist as juvenile. The present revision being Crime No. 80/2005 was
3 All. Gaurav Shukla Vs State Of U.P. & Anr.
473
also referred to the Juvenile Justice Board as the Revisionist had claimed juvenility and in this case
also, the Juvenile Justice Board declared him as juvenile on the Basis of High school mark-sheet in
which his date of birth has been Mentioned as 02.10.1989. This order was challenged by the
Opposite party No.2 by filing a belated criminal appeal in which the appellate Court, condoned the
delay and after hearing, set Aside the order dated 18.10.2005 and remitted the matter back to
The Juvenile Justice Board with the direction that a fresh inquiry be made with regard to the age
of the revisionist. The learned Appellate court directed the Juvenile Justice Board to examine the
documentary Evidence with regard to the age of the revisionist and then decide as to whether he was
juvenile on the date of Occurrence. The Board conducted a detailed inquiry and Refusing to declare
the revisionist as juvenile. This order was Again challenged by the revisionist, This appeal was also
dismissed by the appellate Court and that have been Challenged by the revisionist before this Court.In
the present case, since the exact date of birth of the revisionist is known and is a conclusive proof,
therefore, giving one year grace is not permissible, as the same is meant only in those cases, where
the exact assessment of the age cannot be done.

Held: Para- 1. The Juvenile Justice ( Care and Protection of Children) Act , 2000 has been
enacted with the object for providing proper care , Protection and treatment by adopting a childfriendly approach in the adjudication and disposition of matters in the best interest of Children
and for their ultimate rehabilitation, but at the Same time, it has also to be seen that a heavy duty is
cast upon the Courts that while determining the age , the Court has to bear in Mind that
unscrupulous should not get himself declared as Juvenile on the basis of wrong certificate. The
determination of Age is a delicate matter and it cannot be decided in a routine Manner

Case Law discussed:

Smt. Leena Katiyar vs. State of U.P. & Ors., reported in 2015 (6) ALJ Page 1.

(Delivered by Hon'ble Mahendra Dayal, J.)

1. The Juvenile Justice (Care and Protection of Children) Act, 2000 has been enacted
with the object for providing proper care, protection and treatment by adopting a childfriendly approach in the adjudication and disposition of matters in the best interest of
children and for their ultimate rehabilitation, but at the same time, it has also to be seen that
a heavy duty is cast upon the Courts that while determining the age, the Court has to bear in
mind that unscrupulous should not get himself declared as juvenile on the basis of wrong
certificate. The determination of age is a delicate matter and it cannot be decided in a routine
manner.

2. The revisionist Gaurav Shukla, who is involved in a case under Sections 365, 376
IPC relating to P.S. Ashiyana, District Lucknow, has claimed juvenility on the basis of high
school mark-sheet in which his date of birth has been recorded as 02.10.1989. The alleged
occurrence took place on 02.05.2005 in respect of which an FIR was lodged by the opposite
party No.2. It is not disputed that no one was named in the FIR. When the police proceeded
with the investigation, the name of the revisionist along with other co-accused came into
light. He approached this Court by way of filing Writ Petition No.3936 (MB) of 2005, in
which the arrest of the revisionist was stayed. While the investigation was in progress, the
police of Police Station Mahanagar, Lucknow registered another criminal case against the
revisionist on 19.07.2005 being Case Crime No.260/2005. In this case also, the revisionist
on his appearance claimed juvenility on the basis of high school mark-sheet and when the
474 INDIAN LAW REPORTS ALLAHABAD SERIES
matter was referred to the Juvenile Justice Board, the Board on the basis of high school
mark-sheet, declared the revisionist as juvenile. The case which gave rise to the present
revision being Crime No.80/2005 was also referred to the Juvenile Justice Board as the
revisionist had claimed juvenility and in this case also, the Juvenile Justice Board declared
him as juvenile on the basis of high school mark-sheet in which his date of birth has been
mentioned as 02.10.1989. This declaration was made by the Board vide order dated
18.10.2005. This order was challenged by the opposite party No.2 by filing a belated
criminal appeal in which the appellate Court, condoned the delay and after hearing, set aside
the order dated 18.10.2005 and remitted the matter back to the Juvenile Justice Board with
the direction that a fresh inquiry be made with regard to the age of the revisionist. The
learned appellate court while allowing the appeal vide judgment and order dated 08.04.2010,
directed the Juvenile Justice Board to examine the documentary evidence with regard to the
age of the revisionist and then decide as to whether he was juvenile on the date of
occurrence. After the matter was remitted back to the Juvenile Justice Board, the Board
conducted a detailed inquiry and by the order dated 15.01.2013 again refused to declare him
as juvenile. The Board conducted a detailed inquiry and came to the conclusion that the date
of birth of the revisionist is not 02.10.1989 but is 14.03.1987. This order of the Board dated
15.01.2013 was again challenged by the revisionist by filing Criminal Appeal No.7/2013,
which was allowed on 21.03.2013 and the matter was again sent back to the Board. It
appears that the Juvenile Justice Board again passed an order dated 27.03.2014 refusing to
declare the revisionist as juvenile. This order was again challenged by the revisionist by way
of filing Criminal Appeal No.104/2014. This appeal was also dismissed on 11.03.2015. The
orders dated 11.03.2015 passed by the appellate court and that of the Board dated
27.03.2014 have been challenged by the revisionist before this Court.

3. This Court while entertaining the revision of the revisionist and issuing notice to the
complainant, passed an order that the trial may go on subject to the decision of this revision.
It has been informed to the Court that after the aforesaid order was passed by this Court on
21.04.2015, the trial court proceeded with the trial and now the trial is almost at the fag end
and only the judgment is to be pronounced.

4. The revisionist after his implication, has not left any stone unturned to get himself
declared as juvenile, but it is really unfortunate that even after a lapse of more than ten
years, the matter is going on.

5. I have heard Dr. L.P. Mishra assisted by Shri Sharad Pathak, Advocates on behalf of
the revisionist, Shri Zafaryab Jilani, learned Additional Advocate General for the State and
Shri J.K. Gupta, learned counsel appearing on behalf of the opposite party No.2.

6. The first submission on behalf of the revisionist is that the occurrence which gave
rise to this revision, took place on 02.05.2005. Thereafter, the revisionist was involved in
another criminal case in respect of which the FIR was lodged on 19.07.2005 i.e. after a gap
of two months from the date of earlier occurrence. In the subsequent FIR, which was
registered at the Police Station Mahanagar, the revisionist claimed juvenility on the ground
that his date of birth is 02.10.1989, which has been recorded in the high school mark-sheet
3 All. Gaurav Shukla Vs State Of U.P. & Anr.
475
and the Juvenile Justice Board by the order dated 30.09.2005 declared him as juvenile. This
order has attained finality as the same has not been assailed by any of the parties before any
forum. It has been contended on behalf of the revisionist that when in the subsequent event
pertaining to the month of July, 2005, the revisionist was juvenile, it can safely be held that
in respect of an occurrence which took place two months prior to the occurrence of July, the
revisionist was a juvenile. According to the revisionist, once the declaration of juvenility is
made by the Juvenile Justice Board, it is made for the purposes of this Act and not for the
purposes of a particular offence. It has also been submitted on behalf of the revisionist that
the Act which came into effect from 2000, was subsequently amended in 2006. By the
amendment of 2006, Section 7-A was added and the Rules which were framed earlier, were
replaced by new Rules in the year 2007 and it was provided that the new Rules would
govern those cases also which were pending before the amendment of 2006. Learned
counsel has referred to Rule 97 of the Rules framed in 2007. Rule 97 is reproduced as
under:-

"97. Pending Cases:1) No juvenile in conflict with law or a child shall be denied
the benefits of the Act and the rules made thereunder.

(2) All pending cases which have not received a finality shall be dealt with and
disposed of in terms of the provisions of the Act and the rules made thereunder.

(3) Any juvenile in conflict with law, or a child shall be given the benefits under
sub-rule (1) of this rule, and it is hereby clarified that such benefits shall be made available
to all those accused who were juvenile or a child at the time of commission of an offence,
even if they cease to be a juvenile or a child during the pendency of any inquiry or trial.

(4) While computing the period of detention or stay or sentence of a juvenile in
conflict with law or of a child, all such period which the juvenile or the child has already
spent in custody, detention, stay or sentence of imprisonment shall be counted as a part of
the period of stay or detention or sentence of imprisonment contained in the final order of
the court or the Board."

7. A perusal of the aforesaid Rules makes it clear that all the pending cases, which have
not attained finality are to be dealt with and disposed of in terms of the provisions of the Act
and the Rules made thereunder. It also provides that no juvenile or children shall be denied
the benefit of the Act and the Rules made thereunder. It needs mention here that when in
2007, the Rules were framed by the Central Government, the Rules of 2004 framed by the
State Government were also in existence. Rule 96 of 2007 Rules clearly provides that unless
new Rules conforming to these Rules are framed by the State Government concerned under
Section 68 of the Act, these Rules shall mutatis mutandis apply for that State. Rule 96 of
2007 Rules, is reproduced as under:-

"96. Application of these rules.-It is hereby declared that until the new rules
conforming to these rules are framed by the State Government concerned under Section 68
of the Act, these rules shall mutatis mutandis apply in that State."
476 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The submission of the learned counsel for the revisionist is that it is now well settled
that even in respect of the occurrence which took place prior to the year 2007, but the
question of juvenility has not attained finality, the Rules 2007 shall govern them because
after 2007 Rules, the State of U.P. has not framed any new Rules conforming 2007 Rules.
Learned counsel has referred to the judgment impugned in this revision and has argued that
when the matter came up before the Juvenile Justice Board after remand, the Board as well
as the Appellate Court proceeded on the assumption that since the occurrence took place
before 2007 Rules came into force, therefore, the Rules of 2004 would govern the field and
this approach resulted into dismissal of appeal and the order of the Board declining him to
declare as juvenile.

9. Learned counsel for the revisionist has submitted that in 2007 Rules, Rule 12
provides the procedure to be followed by the Board or the Court in determination of the age.
The procedure is laid down in sub-rule (3) of Rule 12, which is reproduced as under:-

"12. 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;

(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 or, as the case may be, the Committee, for the reasons to be recorded by
3 All. Gaurav Shukla Vs State Of U.P. & Anr.
477
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 conclusive 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 7-A, 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."

10. A perusal of Sub-rule (3) reveals that in every case concerning a juvenile, the age
determination inquiry is to be conducted by seeking evidence by obtaining the matriculation
or equivalent certificate, if available; and in the absence whereof; the date of birth certificate
from the school first attended and in case it is not available, then the birth certificate given
by a Corporation or a Municipal Authority or a Panchayat and in case none of these are
available, only then medical opinion is to be sought from a duly constituted Medical Board.
If any of the three documentary evidence is available as indicated in sub-rule (3) of Rule 12,
the Board or the Court as the case may be, cannot call for the medical opinion and rely upon
the same.

11. The Rules which were in existence prior to 2007, were quite different. The earlier
Rules were contained in Rule 22. In Sub-rule (5) of Rule 22 of 2004 Rules provided that in
every case concerning a juvenile, the Board shall either obtain a birth certificate given by a
Corporation or a Municipal Authority or a date of birth certificate from the school first
attended or matriculation or equivalent certificate, if available; and in the absence of the
above, the medical opinion by a duly constituted Medical Board, subject to a margin of one
year, in deserving cases. Thus, a comparison of both the Rules would reveal that in the
earlier Rules, a birth certificate issued by a Corporation or Municipal Authority was given
478 INDIAN LAW REPORTS ALLAHABAD SERIES
the first preference, the date of birth certificate from the school first attended, was given the
second preference and the medical certificate was given the third preference, but in 2007
Rules, the matriculation certificate has been given the first preference, while the date of birth
certificate from the first attended school has been given the second preference and in
absence thereof, the birth certificate given by a Corporation or Municipal Authority or a
Panchayat has been given third preference. The Juvenile Justice Board and the First
Appellate Court, both fell into grave error of law by assuming that since the occurrence
pertains to the year 2005, before Rule 2007 came into existence, therefore, the Rule 2004
will govern the field while as a matter of fact after framing of 2007 Rules, the same were
made applicable in all the cases whether pending or instituted thereafter provided the
pending cases had not attained finality. The submission is that since the matter with regard
to juvenility of the revisionist had not attained finality and was pending, therefore, Rule
2007 would apply and the courts below have wrongly assumed that Rules 2004 would
apply. It was for this reason that the Board as well as the Appellate Court proceeded to rely
upon the certificate issued by the school first attended and did not give preference to the
high school mark-sheet, which according to 2007 Rules should have been given first
preference.

12. It has also been contended on behalf of the revisionist that once the matriculation
certificate is available, the Board or the Court is not required to go into further inquiry
unless it is found that the said certificate is forged or manipulated, the same has to be given
first preference and has to be relied upon. The Court is not required to go into the question
as to whether the date of birth as mentioned in the matriculation certificate is correct or not.
The only inquiry, which can be conducted by the Board is to the extent that the said
certificate is not forged or manipulated. There is nothing on record to show that the marksheet filed by the revisionist before the court below was a forged document or was a
manipulated one. The same has been proved according the law. The Juvenile Justice Board
had confirmed by summoning the relevant documents from the office of Secondary Board
and it has nowhere been held that the document is forged one or has been manipulated for
this case. The Juvenile Justice Board after remand by the appellate Court, fell into grave
error of law in conducting a fishing and roving inquiry in the manner as to how the date of
birth was mentioned in the high school certificate. The argument on behalf of the revisionist
is that once the matriculation certificate is found to be a genuine document, no further
inquiry is required and the Court or the Board has to accept its contents including the date of
birth.

13. Learned counsel has drawn the attention of the Court towards Rule 12 of 2007
Rules which provides that documents referred in Sub-rule (3) of Rule 12 are the conclusive
proof of age as regards such juvenile in conflict of law. Thus, the matriculation certificate
which was a genuine document, was a conclusive proof of the age of the revisionist and no
further inquiry was to be conducted as has been done by the Board and the Appellate Court.
It has also been submitted by the learned counsel that when the revisionist was declared as
juvenile in a subsequent case, how he could be declared not juvenile in the earlier case
which took place two months prior to the subsequent case. He further submits that the
declaration of a child as juvenile is not for the purposes of a particular offence, but for the
3 All. Gaurav Shukla Vs State Of U.P. & Anr.
479
purpose of the Act. Learned counsel has referred to Section 49 of the Act. Sub-section (2) of
Section 49 provides that no order of a competent authority shall be deemed to have become
invalid merely by a subsequent proof that the person in respect of whom the order has been
made, is not a juvenile and the age recorded by the competent authority, the age of person so
brought before it, shall for the purpose of this Act, be deemed to be the true age of that
person. In this view of the matter, if the revisionist was juvenile in respect of an occurrence
which took place on 19.07.2005, he cannot be said to be major in respect of an occurrence
which took place on 02.05.2005 i.e. two months prior to that occurrence.

14. Learned counsel for the revisionist has also submitted that the constitution of the
Juvenile Justice Board which declared him as major, was not a duly constituted Board
because under the Act and the Rules framed thereunder, the term of the Board is three years.
It further provides that a member of the board shall be eligible for appointment for a
maximum period of two consecutive terms. This means that the maximum tenure of a
member in the Board, is six years because after two terms of three years, he cannot be
reappointed. The submission is that the term of Juvenile Justice Board had expired much
before the matter was brought to the Board and as such the entire proceedings held by the
Board, are absolutely illegal and without jurisdiction.

15. In support of his arguments, learned counsel for the revisionist has placed reliance
upon a Supreme Court's decision rendered in the case of Ashwani Kumar Saxena vs. State
of Madhya Pradesh, reported in (2012) 9 Supreme Court Cases 750. In this case, the
Hon'ble Apex Court while considering the scope of inquiry in determining the age of an
accused, who claims to be juvenile, has observed that Section 7A of the Act obliges the
court only to make an inquiry, not an investigation or a trial. An inquiry not under the Code
of Criminal Procedure, but under the Juvenile Justice Act. The Hon'ble Apex Court has
further observed that the criminal courts normally proceed in such matters as if they are
conducting a trial or investigation. The statute requires the Court only to make an inquiry
and in what manner the inquiry has to be conducted is provided in the Rules. Rule 12 of the
Act has to be read along with Section 7A of the Act. Rule 12 uses the expression "prima
facie" and "on the basis of physical appearance" or "documents, if available". Rule 12(3)
uses the expression "by seeking evidence by obtaining". These expressions re-emphasize the
fact that what is contemplated in Section 7A and Rule 12, is only an inquiry. The Hon'ble
Apex Court has further observed that the age determination inquiry has to be completed
within thirty days from the date of making the application, which is also an indication of the
manner in which the inquiry has to be conducted and completed. The procedure to be
followed under the Act in conducting an inquiry is the procedure itself i.e. Rule 12 of 2007
Rules. The Court cannot impose procedure laid down in the Cr.P.C. or any other enactment
while making an inquiry with regard to juvenility of a person. The claim of juvenility is
raised before the Court exercising power under Section 7A of the Act. The Hon'ble Apex
Court reminded the Courts as well as the Board that a duty is cast on them to seek evidence
by obtaining the certificate etc. Mentioned in Rule 12. The courts in such situations act as a
guardian of the minors who from their legal disability stand in need of protection. In this
case, the Hon'ble Apex Court has made it clear that the inquiry contemplated under the Act
and the Rules has nothing to do with an inquiry under the other legislations, like entry in
480 INDIAN LAW REPORTS ALLAHABAD SERIES
service etc. There may be situations where the entry made in the matriculation certificate,
date of birth certificate from the school first attended and even the birth certificate given by
a Corporation or a Municipal Authority or a Panchayat may not be correct. But the Court or
the Board functioning under the Act is not expected to conduct such a roving inquiry and to
go behind those certificates to examine the correctness of those documents, kept during the
normal course of business.

16. On the strength of the aforesaid observations, the contention of Dr. L.P. Mishra is
that once it is established that the high school mark-sheet submitted by the revisionist was a
genuine document, it was not open for the Board or the Appellate Court to make an inquiry
with regard to entry on the basis of which the date of birth has been mentioned. This can be
done only in those cases where the matriculation certificate is found to be forged or a
manipulated document. There is nothing on record to indicate that the high school marksheet submitted by the revisionist has been manipulated or is a forged document.

17. The submission on behalf of the revisionist is that the ratio laid down in the case of
Ashwani Kumar Saxena referred to above, has been followed by this Court as well as by
other High Courts and in this view of the matter, the Juvenile Justice Board has
unnecessarily gone into the fact that the revisionist has studied in different schools at
different points of time and the date of birth mentioned in the transfer certificate issued by
the earlier schools, did not match with the date of birth mentioned in the high school marksheet. Such type of inquiry was not contemplated as held by Hon'ble the Apex Court.

18. Reliance has also been placed upon a Supreme Court's decision in the case of
Jodhbir Singh vs. State of Punjab, reported in (2012) 13 Supreme Court Case 591. In this
case also, Hon'ble the Apex Court has followed the ratio laid down in the case of Ashwani
Kumar Saxena and has held that where genuineness of the school leaving certificate has not
been questioned, the Court was not justified in placing reliance on certain statements made
by father or mother of the accused. It was also not open for the Court to place reliance on the
statement of village Chowkidar or any other person.

19. It has also been submitted on behalf of the revisionist that in a later incident, the
revisionist has already been held to be a juvenile and the order has attained finality and in
such situation, the revisionist cannot be held to be major in respect of an occurrence which
took place prior to the said occurrence. Section 49 clearly bars the determination of age of
an accused if he has already been held to be a juvenile in another case. Sub-section (2) of
Section 49 clearly lays down that no order of a competent authority shall be deemed to have
become invalid merely by any subsequent proof that the person in respect of whom the order
has been made, is not a juvenile. The age recorded by the competent authority is to be
regarded as age of the person so brought before it which for the purposes of this Act be
deemed to be true age of that person. The judgment and order passed by the Appellate Court
as well as by the Juvenile Justice Board, therefore, cannot be allowed to stand and are liable
to be quashed. The date of birth of the revisionist as mentioned in the high school marksheet, should, therefore, be taken to be the correct age and a declaration be made to the
effect that he was juvenile at the time of occurrence.
3 All. Gaurav Shukla Vs State Of U.P. & Anr.
481

20. It has also been contended on behalf of the revisionist that the learned Appellate
Court while hearing the appeal under Section 52 of the Act, did not give proper opportunity
of hearing to the revisionist. According to learned counsel for the revisionist, when the
appeal was listed for hearing before the Appellate Court, the case on behalf of the revisionist
was also being taken up in this Court. In these circumstances, a request was made before the
appellate court that either the matter may be adjourned or some time may be given to the
revisionist for advancement of his arguments, but the learned Appellate Court instead of
waiting for the counsel of the revisionist, proceeded to hear the appeal and passed the exparte order dismissing the appeal. It has also been submitted that if the revisionist was not
present at the time of hearing of the appeal, the proper course for the appellate Court was to
dismiss the appeal for non-prosecution, but the appeal ought not to have decided on merit.
The revisionist, therefore, has been deprived of his valuable right of placing argument
before the appellate court and as such the matter deserves to be remitted back to the
appellate court for giving opportunity of hearing to the revisionist and then decide the appeal
considering the arguments of the revisionist.

21. Shri Zafaryab Jilani, learned Additional Advocate General appearing on behalf of
the State has submitted that the protection of Section 49 of the Act is not available to the
revisionist for the simple reason that sub-section (2) of Section 49 of the Act only provides
that once a person has been held to be a juvenile, his juvenility shall not be affected by a
subsequent proof that the person is not a juvenile or a child. A bare reading of sub-section
(2) would indicate that there may be cases either civil or criminal in nature in which the
question of juvenility may be raised and evidence may be led to the effect that such person
is a major. If in any proceedings other than the proceedings under the Juvenile Justice Act, a
person is declared as major on a particular date, the finding recorded by that Court would
not affect his juvenility in the case pending under the Juvenile Justice Act. The declaration
of the revisionist as juvenile in a subsequent criminal case does not bar the Court or the
Juvenile Justice Board to make an inquiry with regard to the juvenility of the accused. It has
further been submitted that when the revisionist was declared as juvenile by the Board, the
complainant preferred a revision before the Session Judge, in which the said order was
quashed and the matter was remitted back to the Board to make an inquiry with regard to the
age of the revisionist in accordance with law and thereafter take a decision as to whether the
revisionist was juvenile on the date of occurrence or not. This order passed by the
Additional Session Judge, Court No.1, Lucknow dated 08.04.2010 in Criminal Appeal
No.14/2010 was not challenged by the revisionist before any other higher forum and as such
the said order became final. The Board after receiving the matter back, conducted a detailed
inquiry as directed by the Appellate Court and also examined the revisionist to know as to
where he studied earlier. It was only after the revisionist to know himself disclosed that he
studied in different schools, the Board sought certificates from those schools and after
checking the authenticity of those documents, came to the conclusion that the actual date of
birth of the revisionist is 14.03.1987 and not 02.10.1989 as claimed by the revisionist.

22. Shri Jilani has further submitted that it has not been disputed by the revisionist that
the line of education of the revisionist is from Class Nursery to Class-X. The first school
482 INDIAN LAW REPORTS ALLAHABAD SERIES
attended by him was St. Francis College and the last school from where he appeared in the
high school examination was Herald Public School. The revisionist studied in St. Francis
College, Lucknow from Class Nursery to Class-IV and after passing Class-IV examination,
he studied at City Montessori School, Mahanagar and passed Class-V, thereafter from ClassVI to Class-VIII, he studied in Lucknow Public College after that he took admission in
Herald Public School and passed Class-IX examination. It is not disputed that he also
appeared in Class-X examination, but could not clear. The submission on behalf of the State
is that according to the revisionist himself, he applied for admission in Herald Public
School, Ram Nagar in Class-IX in the year 2003. In the admission form, he mentioned that
prior to it, he studied in Chhaya Public School, Bangla Bazar, Lucknow and also submitted a
transfer certificate issued by Chhaya Public School, in which his date of birth was
mentioned as 02.10.1989. It was on the basis of the said transfer certificate that the
revisionist was admitted in the school and on the basis of that transfer certificate, the date of
birth is mentioned in the high school mark-sheet. It has been found by the Board as well as
by the Appellate Court that the transfer certificate issued by Chhaya Public School was a
forged document and as such the date of birth mentioned in the high school mark-sheet on
the basis of forged transfer certificate issued by Chhaya Public School, is also wrong and,
therefore, the Board was fully justified in making a detailed inquiry with regard to actual
date of birth of the revisionist. When the revisionist sought admission in Sherwood
Academy, Indira Nagar, Lucknow, his date of birth was mentioned as 02.09.1986 in the
admission form. It is also a submission on behalf of the State that when there was no
conclusive evidence with regard to the date of birth of the revisionist, the Board had no
other option except to make an inquiry as contemplated under the Rules to find out as to
what is the actual date of birth of the revisionist.

23. Shri J.K. Gupta, learned counsel appearing on behalf of the opposite party No.2
complainant has submitted that after the Juvenile Justice Act came into force in the year
2000, the State Government of Uttar Pradesh framed Rules in the year 2004. The Central
Government framed Rules in the year 2007 and it was provided in 2007 Rules that in case
the State has not framed any Rules, the Rules framed by the Central Government shall be
followed in every State till the time the State Government frames Rules in consonance with
the Rules framed by the Central Government. Since the State Government had already
framed Rules in the year 2004 and the occurrence took place in the year 2005, therefore, the
Board was justified in relying upon the 2004 Rules and not upon 2007 Rules as framed by
the Central Government. In support of this contention, he has relied upon a decision of
Hon'ble Kerala High Court reported in 2010 (3) Crimes Page 64 (Ker.) Vidya vs.
Government of India & Ors. In this case, the Hon'ble Kerala High Court has held that
Section 68(1) of the Act makes it clear that primary rule making authority under the Act is
the State Government. The proviso to Section 68(1) of the Act further makes it clear that the
rule making power of the Central Government is essentially to make model rules and even
where such model rules have been made, they shall apply to a State until such time as the
State Government may make rules on the same subject matter. Where the State Government
has already made rules, the Model Rules framed by the Central Government on the same
subject matter, obviously would not have application to the State, since the State has already
exercised its rule making authority.
3 All. Gaurav Shukla Vs State Of U.P. & Anr.
483

24. Contrary to the aforesaid view of Hon'ble Kerala High Court, a Coordinate Bench
of this Court had an occasion to examine this legal position in the case of Smt. Leena
Katiyar vs. State of U.P. & Ors., reported in 2015 (6) ALJ Page 1. In this case, Hon'ble
Single Judge of this Court after going through various pronouncements and the Rules, has
come to the conclusion that Rule 12 of the Rules 2007 would be applicable to the age
determination and inquiry with regard to the juvenility claim when on the date of
Notification of the Rules 2007, the inquiry regarding age had not attained finality. The
Hon'ble Single Judge has further observed that in view of Rules 96 and 97 of 2007 Rules,
there is no justification that even in pending cases, where the age determination has not
became final, the Rules framed in the year 2004 be applied. In these circumstances, there is
no force in the arguments raised on behalf of the opposite party No.2 that Rules 2004 would
apply in the case of the revisionist.

25.