# Jagarnath Chauhan Revisionist v. State of U.P. & Anr

- **Citation:** (2020) 11 ILRA 313
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-23
- **Case number:** Criminal Revision No. 1455 of 2020
- **Bench:** Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagarnath-chauhan-revisionist-v-state-of-u-p-anr-45401
- **Pages:** 4

## Headnote

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
397/401
&
Indian Penal Code, 1860-Section- 363,366
& Protection of Children From Sexual
Offence(POCSO) Act, 2012-section 7/8determination of the age of the victim-two
different marksheets were produced-the
law is well settled that in case of dubious
314 INDIAN LAW REPORTS ALLAHABAD SERIES
factual situation regarding conflicting date
of birth, the medical examination report
would prevail-the Medical Board assessed
the age around 18 to 19 years-Hence, no
interference is required.(Para 3 to 12)

B. Provision for determining age, firstly, High
School Certificate, Second option school first
attended, if the same is not available, birth
certificate given by a corporation or municipal
authority or a panchayat and only in the
absence of above three certificate, age shall be
determined by an ossification test or any other
medical age determination test.

The revision is disposed of. (E-6)

## Text

11 All. Jagarnath Chauhan Vs. State of U.P. & Anr.
313
early hearing of this revision due to heavy
pendency of criminal cases before this
Court and also in the absence of any
convincing
material
to
indicate
the
possibility of tampering with the evidence
and in view of the larger mandate of the
Article 21 of the Constitution of India and
the dictum of Apex Court in the case of
Dataram Singh vs. State of UP and
another, (2018) 3 SCC 22 and the view
taken by the Apex Court in the cases of
Kamal Vs. State of Haryana (supra),
Takht Singh Vs. State of Madhya
Pradesh (supra) and Shiv Kumar alias
Sadhu Vs. State of U.P. (supra)., this
Court is of the view that the revisionist be
be released on bail during the pendency of
the present revision.

22. In the result, the bail application
of the revisionist stands allowed.

23. Let the revisionist, Shubham @
Kalua be released on bail in Case Crime
No. 222 of 2002, under Section 376 IPC
Police Station Pilakhua District Ghaziabad
upon his executing a personal bond with
two solvent sureties of his relatives each in
the like amount to the satisfaction of the
Juvenile Justice Board, Ghaziabad.

24. On acceptance of bail bonds and
personal bonds, the lower court concerned
shall transmit photostat copies thereof to
this Court for being kept on the record.

25. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or the certified copy issued by
the Registry of the High Court, Allahabad.

26. The computer generated copy of
such order shall be self attested by the
counsel of the party concerned.

27.

The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.

28. It may be observed that in the
event of any breach of the aforesaid
conditions, the court below shall be at
liberty to proceed for the cancellation of
revisionist's bail.

29. It is clarified that the observations,
if any, made in this order are strictly
confined to the disposal of the bail
application and must not be construed to
have any reflection on the ultimate merits
of the case.
----------
(2020)11ILR A313
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2020

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Revision No. 1455 of 2020

Jagarnath Chauhan ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Ramashray Tripathi

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
397/401
&
Indian Penal Code, 1860-Section- 363,366
& Protection of Children From Sexual
Offence(POCSO) Act, 2012-section 7/8determination of the age of the victim-two
different marksheets were produced-the
law is well settled that in case of dubious
314 INDIAN LAW REPORTS ALLAHABAD SERIES
factual situation regarding conflicting date
of birth, the medical examination report
would prevail-the Medical Board assessed
the age around 18 to 19 years-Hence, no
interference is required.(Para 3 to 12)

B. Provision for determining age, firstly, High
School Certificate, Second option school first
attended, if the same is not available, birth
certificate given by a corporation or municipal
authority or a panchayat and only in the
absence of above three certificate, age shall be
determined by an ossification test or any other
medical age determination test.

The revision is disposed of. (E-6)

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

1. Heard Sri Ramashray Tripathi,
learned
counsel
for
the
revisionistinformant, Sri Phool Chandra Singh,
learned A.G.A. for the State and perused
the material brought on record.

2. This revision has been preferred to
quash/set aside the impugned order dated
06.01.2020, passed by the Chief Judicial
Magistrate, Ghazipur in Case Crime No. 65
of 2019, under Sections - 363, 366 I.P.C.
and 7/8 POCSO Act, Police Station -
Dullahpur, District - Ghazipur.

3.
 The
contention,
vehemently
asserted and claimed in this case, is that
prior to the passing of the aforesaid
impugned
order,
some
petition
was
preferred before this Court, wherein the
Division Bench of this Court had clarified
the situation and asked the Chief Judicial
Magistrate, Ghazipur to consider and
ascertain the age of the victim under the
provisions of law, for which the parents of
the victim shall also be heard.

4. In the backdrop of the aforesaid
factual position, claim is that the order
impugned is absolutely illegal and ex-parte,
without giving and affording opportunity of
hearing to the parents of the victim and that
way, the custodial order is illegal. At this
juncture, the Court repeatedly asked the
learned
counsel
for
the
revisionistinformant not only to put his case afresh on
the point of age of the victim, but also to
treat this Court as the appropriate forum,
where the revisionist-informant can raise
each and every contention in his/her
support on the merit. But the counsel for
the revisionist-informant insisted that the
only proper forum is the Magistrate's Court.
However, the Court again clarified that the
opportunity of hearing can be given by this
Court straightway here. If the Court
considers that any injustice has been done,
then the injustice can be redressed properly
by it after hearing the revisionist-informant
more appropriately, than by the Chief
Judicial Magistrate of the district concerned
and the counsel for the revisionistinformant was, thus, asked to avail and
exhaust this sanguine opportunity, which
he reluctantly availed.

5. He contended on the meritorial
count, the date of birth of the girl to be
25.01.2004. In support of his claim he
relied on record-Class-VIII mark-sheet of
Shri Ram Krishna Inter College, Sikhari,
Ghazipur. That way, the victim should be
treated to be minor on the date of
occurrence. Apart from that, charge-sheet
under the relevant provisions of the
POCSO Act has also been submitted
against the opposite party no. 2, which,
ipso facto, shows that the victim was minor
and to treat the victim to be major on the
date of occurrence is altogether erroneous.

6.

Retorting
to
the
aforesaid
argument, Sri Phool Chandra Singh,
learned A.G.A. has vehemently claimed
11 All. Jagarnath Chauhan Vs. State of U.P. & Anr.
315
that in this case, the document believed and
acted upon indicate that the date of birth of
the victim, as mentioned in her Class - VIII
mark-sheet presented before the learned
Magistrate,
was
01.01.2001
and
the
incident took place on 10th June, 2019. The
court below, after considering the other
relevant aspects and particularly, the
medical examination report which assessed
the victim about 18 to 19 years of age,
passed the order impugned. However, he
also acceded to the point that a direction
was given to the learned Magistrate to call
the parents of the victim, while considering
the point of minority or majority of the
victim at the time of the occurrence. He
further claimed that in view of the medical
examination report and in view of the
document in shape of date of birth as
01.01.2001, the impugned order was passed
under these circumstances.

7. I have considered the rival
submissions and perused the entire record
as brought forth before this Court.

8. Insofar as the opportunity of
hearing to the parents is concerned,
obviously, it is a factual situation but the
grievance can be well redressed by
according opportunity of fair hearing
before this Court, when this application has
been preferred by the father of the victim,
thus redressing the point of hearing to the
parents of the victim, at this juncture.
Record reflects that two different marksheets were produced by both sides, which
were taken into consideration and the
medical examination report was also
perused and considered. The law is well
settled that in cases of dubious factual
situation regarding conflicting date of birth,
the medical examination report would
prevail. On this point, the contention is that
the medical examination was conducted
after six months of the occurrence and that
way, it cannot be accepted as such, but the
contention does not carry substance, in
view of fact that the medical examination
report,
unless
challenged
specifically,
would stand and would become the
foundation of the consideration on point of
ascertaining age of the minor and can be
acted upon by the court concerned in view
of the conflicting claims regarding date of
birth of the victim by both the sides. The
Medical Board has assessed the age around
18 to 19 years. It means the factum of 19
years cannot be lost sight of and would
prevail. That way, the margin of six months
from the date of occurrence (10.06.2019) is
well justified and it would not rate the
calculation below 18 years in June, 2019.

9. Now, insofar as the the medical
examination report is concerned, then it can
be observed that in the Medical Board of
three doctors, the Radiologist had, in the
Medical Examination Report, expressed
clear-cut view that the wrist and the elbow
epiphysis/ joint, both were found to be
fused and on the basis of the same, he
opined that the person cannot be below 18
years of age. It is established position,
insofar as the determination of the age of
the victim under the Juvenile Justice (Care
and Protection of Children) Act, 2015 is
considered, that the margin of one year
would be applicable in favour of the
accused. That way also, the age of the
victim can be said to be 18 or more on the
relevant date of occurrence in June, 2019.

10. The point for consideration is the
custody of the victim and with that view in
mind, the age of the victim has got
particular relevance. But insofar as the
impugned order is concerned, it can be said
that the Magistrate faulted partly, when he
did not call the parents, but the parents
316 INDIAN LAW REPORTS ALLAHABAD SERIES
themselves moved up to this Court
invoking powers under Section - 482
Cr.P.C. and this Court was kind enough to
the
parents,
while
it
accorded
full
opportunity of hearing on the issue of
custodial
order
in
question
and
its
authenticity.

11. This Court after considering the
entirety of this matter, in view of the
factual dispute and conflicting claims
raised by both the sides, concludes that
the medical examination report would
prevail
and
according
to
medical
examination report, the Medical Board
assessed the age to be around 18 to 19
years. On the basis of above, the order
impugned
is
sustained
and
no
interference is required.

12. However, it is open to the trial
court
to
scrutinise
the
aspect
of
minority/majority and that question will
remain open till evidence is adduced led
by both the sides and scrutiny is done.
This Court, accordingly, disposes of the
custodial matter and for that reason alone,
observations made hereinabove on point
of age of the victim should never come in
the way of the trial court, while
ascertaining
the
question
of
minority/majority of the victim.

13. Consequently, the lower court is
free to exercise its jurisdiction in right
perspective in accordance with law in
arriving at proper conclusion regarding
the age of the victim.

14. With the aforesaid observations,
this revision stands disposed of.
----------

(2020)11ILR A316
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2020

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Revision No. 1521 of 2020

Sohanveer Singh ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Amit Kumar Srivastava

Counsel for the Opposite Parties:
A.G.A., Sri Amit Daga, Sri Sandeep Kumar
Srivastava

Dischare Application dismissed by Court
below-Submission is pure questions of
fact-can be adequately adjudicated in
Trial-Charge sheet makes a prima facie
case-no justifiable ground to set aside the
impugned order.

Criminal Revision dismissed. (E-9)

List of Cases cited:-

1. Dilawar Balu Kurane Vs St. of Mah. reported
in 2002 (44) ACC 447 SC;

2. Sanghi Brothers (Indore) Private Ltd. Vs
Sanjay Chaudhary & ors. reported in 2009 (64)
ACC 454; 4

3. P. Vijayan Vs St. of Ker. & anr. reported in
(2010) 2 SC 398;

4. L. Krishna Reddy Vs State by Station House
Officer & ors. reported in 2013 (83) ACC 947
(SC) 5. Geeta Mehrotra Vs St. of U.P. reported in
U.P. 2013 (80) ACC.

6. St. of Orissa Vs Debendra Nath Padhi
reported in (2005) 1 SCC 568,

7. State (NCT OF DELHI) Vs Shiv Charan Bansal
& ors. (2020) 2 SCC 290,