# Mohit Mishra v. State Of U.P. & Anr - **Citation:** (2016) 7 ILRA 20 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-07-26 - **Bench:** Prabhat Chandra Tripathi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohit-mishra-v-state-of-u-p-anr-44011 - **Pages:** 3 ## Text 20 INDIAN LAW REPORTS ALLAHABAD SERIES APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 26.07.2016 BEFORE THE HON'BLE PRABHAT CHANDRA TRIPATHI, J. Criminal Revision No.- 2256 Of 2013 Mohit Mishra ...Appellant Versus State Of U.P. & Anr. ...Respondents Counsel for Appellant: Dinesh Kumar Counsel for Respondents: Govt. Advocate, T.K. Mishra Held The revision challenging the order dated 12.07.2013 passed by the Principal Magistrate, Juvenile Justice Board, Gautam Budh Nagar rejecting the plea of juvenility of Mohit Mishra is dismissed. The Court held that: The revisionist failed to produce matriculation certificate, birth certificate from the first attended school, or birth certificate issued by municipal authority/panchayat as required under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The school leaving certificates relied upon by the revisionist are not sufficient or relevant for determining juvenility under Rule 12. The medical age certificate dated 27.02.2013 issued by the Chief Medical Officer, Gautam Budh Nagar clearly opined that the revisionist was above 19 years of age. In absence of statutory documentary proof of age, medical opinion becomes relevant and determinative. No illegality, perversity, or infirmity was found in the order of the Juvenile Justice Board. Consequently, the plea that the revisionist was 16 years and 5 months old on the date of incident (15.12.2012) was rejected. The revision being without merit was dismissed and interim order, if any, was vacated. CASE LAW CITED Mohd. Azad Alam Vs. State of U.P., 2010 (1) JIC 303 (All) Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (Delivered by Hon'ble Prabhat Chandra Tripathi, J.) 7 All. Mohit Mishra Vs State Of U.P. & Anr. 21 1. Heard Sri Dinesh Kumar, learned counsel for the revisionist, Sri Yogesh Tiwari holding brief of Sri T.K. Mishra, learned counsel for the opposite party no. 2 and learned A.G.A. for the opposite party no. 1. 2. This criminal revision has been preferred by the revisionist for setting aside the judgment and order dated 12.07.2013 passed by the learned Principal Magistrate, Juvenile Justice Board, Gautam Budh Nagar in Misc. Case No. 39 of 2013 (State Vs. Mohit Mishra) arising out of Case Crime No. 499 of 2012 (State Vs. Mohit Mishra), under Sections 363, 366, 376, 368 I.P.C., Police Station Jewar, District Gautam Budh Nagar, whereby the application filed on behalf of the revisionist for declaring him juvenile has been rejected. 3. It is submitted by learned counsel for the revisionist that the revisionist was 16 years and 5 months old on the date of the alleged incident dated 15.12.2012. It is further submitted that the learned Principal Magistrate Juvenile Justice Board, Gautam Budh Nagar without making any enquiry with regard to the determination of age of the revisionist passed the impugned order. It is next submitted that the learned Principal Magistrate has overlooked the Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and passed the impugned order, which is liable to be quashed. 4. On specific query made by the Court, learned counsel for the revisionist informed that neither the revisionist has passed matriculation nor any birth certificate is available with him. Moreover, he has relied upon the school leaving certificates filed as Annexure nos. 3, 4 and 4-A to the affidavit filed in support of revision, in which the date of birth of the revisionist Mohit Mishra has been mentioned as 15.7.1996. On the basis of these school leaving certificates, the learned Juvenile Justice Board has laid emphasis that these documents are not relevant to establish the juvenility of the revisionist. 5. In the age certificate dated 27.02.2013 of the revisionist issued by the Chief Medical Officer, Gautam Budh Nagar, annexed as Annexure-6 to the affidavit filed in support of revision, it has been opined that Mohit Mishra is above 19 years of age. 6. In the counter affidavit filed by the opposite party no. 2 Roop Singh, an order dated 21.12.2012 passed by this Court in Writ-C No. 67530 of 2012-Smt. Somwati and another Vs. State of U.P. and others has been annexed as Annexure-1 in which it has been observed that "both the petitioners have claimed to be adults". 7. Learned counsel for the opposite party no. 2 has produced a photostat copy of the bail order dated 11.7.2014 passed by this Court in Criminal Misc. Bail Application No. 8087 of 2014 by which the bail was granted to the revisionist. 8. Learned counsel for the revisionist has also relied upon a decision of this Court in the case of Mohd. Azad Alam Vs. State of U.P., 2010 (1) JIC 303 (All). 22 INDIAN LAW REPORTS ALLAHABAD SERIES 9. The facts of the present case are different from the facts mentioned in the above cited case. 10. Rule 12 of The Juvenile Justice (Care and Protection of Children), Rules, 2007 does not mention to consider the school leaving certificate to decide the juvenility. For this purpose, matriculation or equivalent certificates, thereafter the date of birth certificate from the school (other than a play school) first attended and thereafter birth certificate given by a corporation or a municipal authority or a panchayat shall be obtained for seeking evidence by the Juvenile Justice Board and in absence of all the above documents, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. 11. In the present case, the age certificate dated 27.02.2013 of the revisionist issued by the Chief Medical Officer, Gautam Budh Nagar is relevant, which has clearly declared the age of the revisionist Mohit Mishra as above 19 years of age. 12. In the circumstances, there is no illegality, perversity or infirmity in the impugned order. The revision sans merits and is liable to be dismissed. 13. The revision is accordingly dismissed. The interim order, if any, stands vacated. ----------- ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 25.07.2016 BEFORE THE HON'BLE ABHAI KUMAR, J. Habeas Corpus Writ Petition No.- 22578 Of 2016 Smt. Manju Yadav Thru' Its Husband Yogendra Yadav ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for Petitioner: Anil Kumar Pandey Counsel for Respondents: Government Advocate Held Writ of habeas corpus not maintainable where custody of a minor girl has been given to her parents by a competent Magistrate under lawful authority and such order is not patently illegal or without jurisdiction. Distinction drawn between Nari Niketan detention and parental custody.