# Nadeem @ Kalia Revisionist v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 483
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-07
- **Case number:** Criminal Revision No. 2913 of 2019
- **Bench:** Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nadeem-kalia-revisionist-v-state-of-u-p-anr-opp-parties-49985
- **Pages:** 12

## Headnote

Criminal Law-Juvenile Justice (Care and
Protection of Children) Act, 2000-Sections
7A,
49-Juvenile
Justice
(Care
and
Protection of Children) Rules, 2007-Rule
12)- Revision against the judgment and
order passed in Juvenile Criminal Appeal-A
person can move an application claiming
himself to be juvenile at any stage of the
case and even after the judgment of the
case-The word 'any court in Section 7A(1)'
means the trial court/High Court/Apex
Court and does not mean that any court in
U.P.
wherever
a
person
wants
an
application to be moved-Medical report
does
not
bear
the
thumb
impression/signature
of
the
accused
thereby the presence of the revisionist at
the time of medical examination cannot be
ascertained-St.ment of the revisionist u/s
313 CrPC and license of DBBL gun issued
in the name of revisionist before the date
484 INDIAN LAW REPORTS ALLAHABAD SERIES
of incident an admission on the part of the
accused revisionist of being major on the
date of incident-Two agreement to sale
and one power of attorney have been
placed which bear the thumb impression
of the revisionist this again indicates that
the revisionist was major before the date
of incident. (Para 10, 33, 38)

Revision dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,407 of 41,080. This is a partial read: ask again with offset=39407 for what follows._

4 All. Nadeem @ Kalia Vs. State of U.P. & Anr.
483
allegations made in the application under
Section 156 (3) Cr.P.C. has ever been filed
by the applicant.

40. From the above discussion, it is
explicit that before taking recourse of the
Court, the complainant ought to move to
the police station for registration of the
F.I.R. and if unattended there, move an
application to the Superintendent of Police
and this fact also be deposed clearly in his
application under Section 156 (3) Cr.P.C.
moved before the Magistrate. In the matter
in hand, copies of the applications moved
by the applicant to the police station
Gabhana, District Aligarh and to the S.S.P.,
Aligarh have been filed on record, but this
fact has not been deposed anywhere by the
informant by way of affidavit, which was a
necessary compliance of the law governing
the subject. Although the learned Court has
not paid any attention to this legal omission
and the impugned order has been passed on
factual aspect, but this Court can, in no
circumstance,
ignore
legal
principles
governing the present matter. If no affidavit
was filed in support of the application
under Section 156 (3) Cr.P.C., it even,
could not have been entertained by the
court concerned. The application itself
suffers from a serious legal flaw and was
not entertainable as such.

41. It is not required for this Court to
examine the facts of the case and to draw a
conclusion whether the learned Sessions
Court analyzed the factual scenario of the
matter in proper manner or not because it
has been already held that the application in
itself was not entertainable for want of
affidavit and rejection of the same was a
right consequence.

42. On the basis of the aforesaid
discussion, I am of the considered view that
the revision is devoid of merit and deserves
to be dismissed.

43. The revision is accordingly
dismissed.
----------
(2023) 4 ILRA 483
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.04.2023

BEFORE

THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Criminal Revision No. 2913 of 2019

Nadeem @ Kalia ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Bhavya Sahai, Sri Brijesh Sahai (Sr.
Advocate)

Counsel for the Opp. Parties:
G.A., Sri Avnish Kumar Srivastava, Sri Anoop
Trivedi (Sr. Advocate)

Criminal Law-Juvenile Justice (Care and
Protection of Children) Act, 2000-Sections
7A,
49-Juvenile
Justice
(Care
and
Protection of Children) Rules, 2007-Rule
12)- Revision against the judgment and
order passed in Juvenile Criminal Appeal-A
person can move an application claiming
himself to be juvenile at any stage of the
case and even after the judgment of the
case-The word 'any court in Section 7A(1)'
means the trial court/High Court/Apex
Court and does not mean that any court in
U.P.
wherever
a
person
wants
an
application to be moved-Medical report
does
not
bear
the
thumb
impression/signature
of
the
accused
thereby the presence of the revisionist at
the time of medical examination cannot be
ascertained-St.ment of the revisionist u/s
313 CrPC and license of DBBL gun issued
in the name of revisionist before the date
484 INDIAN LAW REPORTS ALLAHABAD SERIES
of incident an admission on the part of the
accused revisionist of being major on the
date of incident-Two agreement to sale
and one power of attorney have been
placed which bear the thumb impression
of the revisionist this again indicates that
the revisionist was major before the date
of incident. (Para 10, 33, 38)

Revision dismissed. (E-15)

List of Cases cited:

1. Ram Vijay Singh Vs St. of U. P., LL 2021 SC
117

2. Mukarrab & ors. Vs St. of U. P. (2017) 2 SCC
210

(Delivered by Hon'ble Mrs. Sadhna Rani
(Thakur), J.)

1. Heard Sri Brijesh Sahai, learned
Senior Advocate assisted by Sri Bhavya
Sahai, learned counsel for the revisionist
and Sri Anoop Trivedi, learned Senior
Advocate assisted by Sri Avnish Kumar
Srivastava, learned counsel for the opposite
party no. 2.

2. This revision has been preferred
against the judgement and order dated
04.07.2019 passed in Juvenile Criminal
Appeal No. 08 of 2019 arising out of Case
Crime No. 131 of 2003 under Sections 147,
148, 149, 307 and 302 IPC, Police Station
Kotwali, District Meerut.

3. As per facts of the case Sessions
Trial Nos. 668, 669 and 671 of 2003, Case
Crime No. 131 of 2003 and 134 of 2003
respectively under Sections 147, 148, 149,
307, 302 IPC and 25/27 Arms Act, Police
Station Kotwali, District Meerut were
decided by the trial court vide judgement
dated 04.08.2007 and all the four accused
persons were found guilty. The case was
decided into capital punishment. Criminal
Reference No. 21 of 2007 - State Vs.
Khalid and others, was made to this court
to confirm the capital punishment. The
accused persons also filed Criminal Appeal
No. 5169 of 2007 - Khalid and others Vs.
State of U.P. before this court. Both the
reference and criminal appeal were heard
together by the Division Bench of this
court. The reference was dismissed and the
appeal was partly allowed vide judgment
and order dated 05.09.2008. The death
sentence was set aside and was commuted
to life imprisonment i.e. imprisonment for
whole life with the provision that the
accused persons shall not be entitled to be
considered for remission of sentence,
unless they have undergone an actual term
of 20 years imprisonment including the
period already undergone by them. The
sentence of fine awarded to the appellants
under Sections 302/149 IPC as well as
sentence of imprisonment and fine awarded
to them under Section 307/149 and 148 IPC
and the conviction of accused appellants
Tahir and Moinuddin and the sentence
awarded to them under Section 25 Arms
Act were upheld. All the sentences of
imprisonment were to run concurrently.
The convict/revisionist along with other coaccused persons was thereafter transferred
to Central Jail, Agra to serve the sentence.

4. One Sister Sheeba Jose, a lawyer
and human right activist, filed a Public
Interest Litigation No. 855 of 2012 (Sister
Sheeba Jose Vs. State of U.P. and others)
before this Court for release of the
prisoners, who may have been below 18
years of age at the time of incident and
were detained in various district or Central
Jail. For Agra, Central Jail a list of 18
prisoners was made for grant of such relief.
This writ petition was decided by the
division bench of this Court vide order
dated 24.05.2012 and directions were
4 All. Nadeem @ Kalia Vs. State of U.P. & Anr.
485
issued to the District Judges, who were also
the Chairpersons of their Legal Services
Authorities to see that the efficient lawyers
were
appointed
for
the
purpose
of
providing legal aid to the prisoners, who
were unable to engage private lawyers and
who were mentioned in the list furnished
by the State Government and described to
be below 18 years in age on the date of
commission
of
offence.
The
present
applicant
applied
(through
Jail
Superintendent, Central Jail, Agra) before
the Secretary, District Legal Services
Authority for providing him legal aid. On
his application, the District Legal Services
Authority appointed an advocate for
providing him legal aid and thereafter on
22.03.2017 an application was moved on
behalf of the revisionist before the Juvenile
Justice Board, Agra claiming therein that he
was juvenile at the time of incident and as
he was not literate and having no
documentary evidence regarding his age, as
such by constituting a medical board his
age may be determined. His medical was
done by the medical board and on the basis
of
report
of
medical
board
dated
19.04.2017
the
Principal
Magistrate,
Juvenile Justice Board, Agra vide order
dated 22.04.2017 declared the revisionist
juvenile on the date of incident.

5. On various grounds and vide order
dated 03.05.2017 of Juvenile Justice Board,
Agra the revisionist, who was said to had
served incarceration of more than 13 years
10 months, was ordered to be released from
the jail. Against these orders dated
22.04.2017 and 03.05.2017 Application
U/S 482 No. 18718 of 2017 was filed by
Dr. Mohd Iqbal Gaji, which was withdrawn
by him on 11.10.2017 with the version that
against these orders the remedy of appeal
has been provided in the statute and the
application had been filed in the wrong
court, hence, with liberty to avail proper
legal remedy against the orders, the
permission to withdraw this application
was
seeked,
which
was
allowed
accordingly. Then an appeal was filed by
Haji Baseeruddin, opposite party no. 2
against the orders dated 22.04.2017 and
03.05.2017, which was allowed vide order
dated 04.07.2019 of the Sessions Judge,
Agra. The orders dated 22.04.2017 and
03.05.2017
were
set
aside
and
the
revisionist/accused was ordered to be
arrested by issuing non bailable warrant
against him.

6.

Admittedly,
the
revisionist
remained absconding and the processes
were issued by the concerned court for his
arrest. At last vide order dated 17.05.2022
in Writ Petition (Criminal) No. 155 of 2022
the revisionist was directed to be released
on bail subject to the conditions to be
imposed by the trial court until further
orders and vide order dated 06.09.2022 in
the same writ petition the Apex Court
disposed of the writ petition with the
request to this court to dispose of the
Criminal Misc. Application No. 20368 of
2017 of the co-accused and Criminal
Revision No. 2913 of 2019 (present
revision) as expeditiously as possible not
later than six months.

7. This revision was placed before
this court along with Application U/S 482
No. 20368 of 2017 of the co-accused on
22.03.2023 for the first time and the
learned counsel for the applicant in
application under Section 482 Cr.P.C.
seeked time so that he may inform the
counsel for the revisionist and accordingly
28.03.2023 was fixed and on 28.03.2023
the arguments were heard in Application
U/S 482 No. 20368 of 2017 and due to
paucity of time on next date i.e. 29.03.2023
486 INDIAN LAW REPORTS ALLAHABAD SERIES
the arguments on present revision were
heard.

8. The present revision has been
preferred
against
the
order
dated
04.07.2019 of the Sessions Judge, Agra in
Criminal Appeal No. 08 of 2019 related to
Case Crime No. 131 of 2003.

9. The judgment is assailed on the
ground that the impugned judgment is
against the settled principles of law. It is
based on surmises and conjectures. The
District Judge, Agra misread the record,
thus, the order is arbitrary and against the
principle of natural justice and not
sustainable. The provisions of Section 94 of
the Juvenile Justice (Care and Protection of
Children) Act have not been followed,
whereby the educational certificate/birth
certificate by a corporation or municipality
or panchayat/ ossification test are relevant
for the purpose of determination of age. As
per provisions of Juvenile Justice (Care and
Protection of Children) Act, the voter ID,
statement under Section 313 Cr.P.C. and
arms license are irrelevant for the purpose
of determination of age. No admissible
evidence could be attributed by the
appellant regarding the age of the accused
revisionist. The order has been passed
mechanically and without application of
mind, which needs to be quashed.

10. Admittedly, a person can move an
application claiming himself to be juvenile
at any stage of the case and even after the
judgement of the case. As in the present
case, the judgement in S.T. No. 668, 669
and 671 of 2003 was passed on 04.08.2017
and the application for declaring him to be
juvenile was moved by the revisionist in
the year 2017 and on his medical
examination by the medical board, report
was submitted on 19.04.2017 and vide
order dated 22.04.2017 the revisionist was
declared juvenile. On 03.05.2017 he was
ordered to be released from the Central Jail.

11. The only law question involved in
this revision is whether in the presence of
report of medical examination by the
medical board the appellate court could
find the revisionist major on the date of
incident on the basis of other evidence on
record?

12. Admittedly, this appeal was
decided in the absence of revisionist
finding sufficient service by refusal on him.

13. The incident is dated 07.06.2003.
Admittedly, at that time Juvenile Justice
(Care and Protection of Children) Act, 2000
(hereinafter referred to as the 'Act') was
prevalent and later on in 2007, Juvenile
Justice (Care and Protection of Children)
Rules, 2007 (hereinafter referred to as the
'Rules 2007') were framed. Regarding
procedure for a claim of juvenility Section
7A and Section 49 of the Act are apposite
to mention here:-

[7A. Procedure to be followed when
claim of juvenility is raised before any
court.- (1) Whenever a claim of juvenility
is raised before any court or a court is of
the opinion that an accused person was a
juvenile on the date of commission of the
offence, the court shall make an inquiry,
take such evidence as may be necessary
(but not an affidavit) so as to determine the
age of such person, and shall record a
finding whether the person is a juvenile or
a child or not, stating his age as nearly as
may be:

Provided that a claim of juvenility
may be raised before any court and it shall
be recognised at any stage, even after final
disposal of the case, and such claim shall
4 All. Nadeem @ Kalia Vs. State of U.P. & Anr.
487
be determined in terms of the provisions
contained in this Act and the rules made
thereunder, even if the juvenile has ceased
to be so on or before the date of
commencement of this Act.

(2) If the court finds a person to be a
juvenile on the date of commission of the
offence under sub-section (1), it shall
forward the juvenile to the Board for
passing
appropriate
orders
and
the
sentence, if any, passed by a court shall be
deemed to have no effect.]

49. Presumption and determination of
age.--(1) Where it appears to a competent
authority that person brought before it under
any of the provisions of this Act (otherwise
than for the purpose of giving evidence) is a
juvenile or the child, the competent authority
shall make due inquiry so as to the age of that
person and for that purpose shall take such
evidence as may be necessary (but not an
affidavit) and shall record a finding whether
the person is a juvenile or the child or not,
stating his age as nearly as may be.

(2) 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 or the child, and the
age recorded by the competent authority to be
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.

14. A reading of Section 7A of the Act
makes it clear that as per Section 7A (1)
claim of juvenility shall be determined in
terms of provisions contained in the Act
and the Rules made therein even if the
juvenile ceased to be so on or before
commencement of this act.

15. In the case in hand, an application
for declaring him juvenile was moved by
the present revisionist in the year 2017, till
then the above Rules, 2007 had been
framed, hence, regarding determination of
age of the revisionist Rule 12 of the Rules,
2007 shall be applied.

16. Rule 12 of the Rules, 2007 runs 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
488 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 Ihe 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 7A, 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.

17. Thus, as per learned counsel for
the revisionist for declaration of a person to
be juvenile in conflict with law, the court or
the board shall determine the age of the
child by inquiry and seeking evidence by
obtaining (1) the matriculation or equivalent
certificates available and in the absence
whereof (2) the date of birth certificate from
the school (other than a play school) first
attended and in the absence whereof (3) the
birth certificate given by a corporation or a
municipal authority or a panchayat and in the
absence of above three, the medical opinion
will be sought from a duly constituted
Medical Board, that would declare the age of
the juvenile or child. In case exact assessment
of the age could not be done, the Court or the
Board, for the reasons to be recorded, give
benefit to the child/juvenile by considering
his/her age on lower side within the margin of
one year.

18. It is the version of the learned
counsel for the revisionist that as in the
present case the revisionist was illiterate
person so his matriculation or equivalent
certificate or the date of birth certificate from
any school were not available and the
certificate of any corporation or municipal
authority or panchayat was also not available,
so the Juvenile Justice Board rightly relied
upon the report of medical examination done
by the medical board and declared the
revisionist juvenile.

19. This argument of the revisionist
counsel is assailed on various grounds.

20. It is submitted by the learned
counsel for the opposite party no. 2 that the
4 All. Nadeem @ Kalia Vs. State of U.P. & Anr.
489
medical examination report submitted by
the medical board dated 19.04.2017 does
not bear the thumb impression/ signature of
the revisionist so in the absence of thumb
impression/signature of the revisionist this
certificate has no legal sanctity and is a
bare piece of paper and when there was
neither any educational certificate nor any
certificate issued by the municipal board or
panchayat nor any reliable medical report,
the court was free to collect other evidence
which could be available before the court
and pass an order accordingly.

21. Learned counsel for the opposite
party no. 2 placed before the court
judgement in Ram Vijay Singh Vs. State of
Uttar Pradesh, LL 2021 SC 117 wherein
the apex court held that the medical
evidence as to the age of a person, though a
very useful guiding factor, is not conclusive
and has to be considered along with other
circumstances. Paragraphs 26, 27 and 28 of
the judgement in Mukarrab & others Vs.
State of Uttar Pradesh (2017) 2 SCC 210
were referred in that judgement. These
paragraphs run as under:-

"26.
Having
regard
to
the
circumstances of this case, a blind and
mechanical view regarding the age of a
person cannot be adopted solely on the
basis of the medical opinion by the
radiological examination. At p. 31 of
Modi's Textbook of Medical Jurisprudence
and Toxicology, 20th Edn., it has been
stated as follows:

"In ascertaining the age of young
persons radiograms of any of the main
joints of the upper or the lower extremity of
both sides of the body should be taken, an
opinion should be given according to the
following Table, but it must be remembered
that too much reliance should not be placed
on this Table as it merely indicates an
average and is likely to vary in individual
cases even of the same province owing to
the eccentricities of development."

Courts have taken judicial notice of
this fact and have always held that the
evidence
afforded
by
radiological
examination is no doubt a useful guiding
factor for determining the age of a person
but the evidence is not of a conclusive and
incontrovertible nature and it is subject to a
margin of error. Medical evidence as to the
age of a person though a very useful
guiding factor is not conclusive and has to
be
considered
along
with
other
circumstances.

27. In a recent judgment, State of M.P.
v. Anoop Singh, (2015) 7 SCC 773 : (2015)
4 SCC (Cri) 208], it was held that the
ossification test is not the sole criteria for
age determination. Following Babloo Pasi
[Babloo Pasi v. State of Jharkhand, (2008)
13 SCC 133 : (2009) 3 SCC (Cri) 266] and
Anoop Singh cases [State of M.P. v. Anoop
Singh, (2015) 7 SCC 773 : (2015) 4 SCC
(Cri) 208], we hold that ossification test
cannot be regarded as conclusive when it
comes to ascertaining the age of a person.
More so, the appellants herein have
certainly crossed the age of thirty years
which is an important factor to be taken
into account as age cannot be determined
with precision. In fact in the medical report
of the appellants, it is stated that there was
no indication for dental x-rays since both
the accused were beyond 25 years of age.

28. At this juncture, we may usefully
refer to an article "A study of wrist
ossification for age estimation in paediatric
group in Central Rajasthan", which reads as
under:

"There are various criteria for age
determination of an individual, of which
eruption of teeth and ossification activities
of bones are important. Nevertheless age
can usually be assessed more accurately in
490 INDIAN LAW REPORTS ALLAHABAD SERIES
younger age group by dentition and
ossification along with epiphyseal fusion.

[Ref.: Gray H. Gray's Anatomy, 37th
Edn., Churchill Livingstone Edinburgh
London Melbourne and New York: 1996;
341-342];

A careful examination of teeth and
ossification at wrist joint provide valuable
data for age estimation in children.

[Ref.: Parikh C.K. Parikh's Textbook
of Medical Jurisprudence and Toxicology,
5th Edn., Mumbai Medico- Legal Centre
Colaba: 1990; 44-45];

Variations in the appearance of centre
of ossification at wrist joint shows
influence of race, climate, diet and regional
factors. Ossification centres for the distal
ends of radius and ulna consistent with
present study vide article "A study of wrist
ossification for age estimation in paediatric
group in Central Rajasthan" by Dr
Ashutosh Srivastav, Senior Demonstrator
and a team of other doctors, Journal of
Indian Academy of Forensic Medicine
(JIAFM), 2004; 26(4). ISSN 0971-0973].

22. It was argued on the basis of this
finding of the Apex Court that no dental xray of the revisionist was done. It was also
argued that examination of teeth and
ossification, wrist and joint would be
considered for age estimation in children
and as per medical report itself the
revisionist is found to be 29 years of age
presently, hence, his age cannot be said to
be assessed more accurately.

23. This argument of the learned
counsel for the opposite party no. 2 was
opposed by the learned counsel for the
revisionist on the ground that as per
findings of this judgement no medical
reprot was available before the court and in
absence of medical report, when High
School certificate or the certificate of first
school or Nagar Nigam or Panchayat were
already not available then only on the basis
of admission of the accused revisionist
made in the arm license, the age of the
accused was determined.

24. If we go through the provisions of
the Act in this regard in Section 7A itself
speaks that "whenever a claim is made by
the accused in the court and the court is of
the opinion that an accused person was a
juvenile on the date of commission of the
offence, the court shall make an inquiry,"
which clearly indicates that from the
physical appearance of the accused if the
court finds prima-facie that the inquiry is
must in the matter to determine the age of
the person only then the inquiry shall be
held. As is opined by the Apex Court in
para-15 of the judgement Ram Vijay Singh
(supra), which is as under:-

15. As per the Scheme of the Act, when it is
obvious to the Committee or the Board,
based on the appearance of the person, that
the said person is a child, the Board or
Committee
shall
record
observations
stating the age of the Child as nearly as
may be without waiting for further
confirmation of the age. Therefore, the first
attempt to determine the age is by assessing
the physical appearance of the person when
brought before the Board or the Committee.
It is only in case of doubt, the process of
age determination by seeking evidence
becomes necessary. At that stage, when a
person is around 18 years of age, the
ossification test can be said to be relevant
for determining the approximate age of a
person in conflict with law. However, when
the person is around 40-55 years of age, the
structure of bones cannot be helpful in
determining the age. This Court in Arjun
Panditrao Khotkar v. Kailash Kushanrao
Gorantyal and Ors. (2020)7SCC 1 held, in
4 All. Nadeem @ Kalia Vs. State of U.P. & Anr.
491
the context of certificate required under
Section 65B of the Evidence Act, 1872, that
as per the Latin maxim, lex non cogit ad
impossibilia, law does not demand the
impossible. Thus, when the ossification test
cannot yield trustworthy and reliable
results, such test cannot be made a basis to
determine the age of the person concerned
on the date of incident. Therefore, in the
absence of any reliable trustworthy medical
evidence to find out age of the appellant,
the ossification test conducted in year 2020
when the appellant was 55 years of age
cannot be conclusive to declare him as a
juvenile on the date of the incident.

25. Thus, first attempt of the court to
determine the age of the accused is by
assessing the physical appearance of the
person when brought before the medical
board or the committee and it is only in the
case of doubt that the process of age
determination by seeking other evidence
becomes necessary.

26. If we go through the order of the
medical board dated 22.04.2017 wherein on
the date of incident the age of the
revisionist is determined to be 15 years, 01
month and 18 days, while in his statement
under Section 313 Cr.P.C. the accused has
disclosed himself to be of 26 years. Thus,
he was about 23 years old on the date of
incident. Had the accused been 15 years of
age on the date of incident it could have
very well be assessed by the court by his
physical appearance when he used to
appear in the trial court at the time of
hearing of the trial. Admittedly during
complete trial the revisionist remained in
jail and he might have appeared from the
jail in the court. Thus, in compliance of
Section 7A of the Act, the trial court never
assessed the accused to be juvenile on his
appearance from the jail, so no process of
age determination by seeking any evidence
was adopted by the trial court. The
revisionist himself from the year 2003 till
2017 when he remained in jail for about
13-14 years, he never claimed himself to be
a juvenile and its reason has not been
disclosed by the revisionist anywhere.

27. It is argued by the learned counsel
for the revisionist that the appeal was heard
in the absence of the accused. In the
judgment of the appeal itself it has been
mentioned that the process was send to the
revisionist and the service on him was
found
to
be
sufficient
by
refusal.
Admittedly, since the release of the
revisionist from the jail after 2017 till today
he has not appeared before the court. He is
absconding. Even in the revision the
affidavit of Subhan Jamal, the nephew of
the revisionist, has been filed in support of
the prayer in the revision. Thus, it can be
said that revisionist has not come in the
revisional court with clean hands.

28. It is also argued by the learned
counsel for the opposite party no. 2 that the
medical report of the medical board, which
was relied upon by the Juvenile Justice
Board,
does
not
bear
the
thumb
impression/signature of the revisionist,
which makes the report unreliable and in
the absence of any medical report the court
was bound to decide the age of the accused
on the basis of other evidence present on
record. A perusal of the medical report
submitted by medical board clearly shows
that it does not bear the thumb impression
or signatures of the accused and this report
is of no importance in the absence of the
thumb impression or signatures of the
convict/revisionist.

29. In compliance of court's order
dated 24.05.2012 passed in Criminal Writ -
492 INDIAN LAW REPORTS ALLAHABAD SERIES
Public Interest Litigation No. 855 of 2012,
the list of 18 persons was prepared in the
Central Jail Agra and the age of these 18
persons was to be determined to be below
18 years by the Principal Judge, Juvenile
Justice Board. As per the learned counsel
for the opposite party no. 2 this list did not
include the name of the present revisionist
and he, with the ill intention against the
order of this court, moved an application
through Jail Superintendent before the
Juvenile Justice Board to declare him
juvenile. As the list of 18 persons prepared
in the Central Jail, Agra, for assessing those
persons to be juvenile on the date of the
incident, is not placed before the court, so
this argument of the learned counsel for the
opposite party no. 2 has no force.

30. However, this is admitted fact that the
division bench of this court vide order
dated 24.05.2012 in Criminal Writ - Public
Interest Litigation No. 855 of 2012, held
for determination of age of the persons,
who may be below 18 years of age on the
date of commission of offence and who
appear to be wrongly lodged in the regular
prisons for adults. It was clearly opined by
the division bench that the prosecution and
the complainant will also, of course, be
given an opportunity to examine their own
witnesses
and
to
cross-examine
the
witnesses, who have been got examined on
behalf of the accused and for that purpose
notice of the proceedings before the J.J.
Board shall be served on the complainant/
prosecution. Admittedly and also from
perusal of the impugned order dated
22.04.2017 the presence of the complainant
or his counsel is not noted therein.
However, learned ADGC is shown to be
heard
while
passing
order
dated
22.04.2017, but in compliance of this
court's
order
dated
24.05.2012
the
complainant was neither heard nor given a
notice before being heard. This is not the
version of the revisionist also that the
complaint was served or his counsel was
heard at the time of passing order dated
22.04.2017. There is nothing on record to
show that before determination of age of
the accused the complainant/opposite party
no. 2 was ever heard. Thus, order dated
22.04.2017 was clearly an exparte order
wherein the complainant was never given
an opportunity of appearing or being heard,
wherein in the present appeal it is clear
finding of the appellate court that the
service on revisionist was found sufficient
by refusal.

31. It is also argued by the learned
counsel for the opposite party no. 2 that the
Juvenile Justice Board, Agra had no
jurisdiction to determine the age of the
accused as the matter belonged to District
Meerut and it was after conviction from
Meerut District Court only that the accused
was lodged in Central Jail, Agra. This fact
does not give authority to Juvenile Justice
Board, Agra to hear the application of age
determination of the accused/convict.

32. In this regard, para-2 of Section
7A(1) is apposite to mention here as
under:-

[7A. Procedure to be followed when
claim of juvenility is raised before any
court.- (1) ........

Provided that a claim of juvenility
may be raised before any court and it shall
be recognised at any stage, even after final
disposal of the case, and such claim shall
be determined in terms of the provisions
contained in this Act and the rules made
thereunder, even if the juvenile has ceased
to be so on or before the date of
commencement of this Act.
4 All. Nadeem @ Kalia Vs. State of U.P. & Anr.
493

33. From the above provision, the
word 'any court' means the trial court/High
Court/Apex Court. It does not mean that
any court in U.P. wherever a person wants
an application to be moved he could move
the same. As the case belonged to District
Meerut and it was decided by the District
Court
Meerut,
the
District
Court,
Meerut/Principal
Magistrate,
Juvenile
Justice Board, Meerut only had jurisdiction
to decide the question of juvenility of the
applicant. Thus, the order dated 22.04.2017
passed
by
the
Principal
Magistrate,
Juvenile Justice Board, Agra was an order
passed without jurisdiction.

34. It is however further argued by the
learned counsel for the opposite party no. 2
that as per the statement under Section 313
Cr.P.C. of the accused he disclosed himself
to be 26 years old on 16.05.2006, thus,
according to his own admission his age on
the date of incident becomes about 22 years
and 11 months. In the voter list also in the
year 2017, his age is shown to be 40 years,
thus, his age becomes 26 years on the date
of incident. As per the judgment of the trial
court, the revisionist was acquitted for the
offence under Section 25 of Arms Act on
the ground that he was having a valid gun
license in his name. This fact is not
opposed by the learned counsel for the
revisionist. As gun license is issued in
favour of a major person so on this basis
also accused was claimed to be major on
the date of incident.

35. Again the attention of the court is
drawn that the present revisionist by the
name Gulam Shahjad @ Kaliya s/o
Jamiluddin has put his thumb impression
on agreements to sale dated 20.09.2000 and
15.09.2000 and on a revocable power of
attorney dated 27.08.1998. All these
documents on record show that on the
respective dates the revisionist was major
and only then he put his signatures as a
major person on the dates mentioned
therein on the agreements to sale and the
power of attorney. Thus, it was argued by
the learned counsel for the opposite party
no. 2 that in his statement under Section
313 Cr.P.C., in his valid gun license, on two
agreement to sale and power of attorney,
the revisionist by putting his thumb
impression/signatures himself has admitted
to be major on the date of incident.

36.

Learned
counsel
for
the
revisionist,
however,
opposed
these
arguments and submitted that as the
revisionist was minor on the date of
incident, so he was not prudent enough to
make an admission about his age.

37. However, the court is not
convinced with this argument of the learned
counsel for the revisionist.

38. In compliance of Rule 12 of the
Rules, 2007, the revisionist was not having
any matriculation or equivalent certificate
or birth certificate from any school,
corporation, municipal board or panchayat.
In absence of these documents his medical
was done by the medical board and that
medical report does not bear the thumb
impression/signature of the accused thereby
the presence of the revisionist at the time of
medical examination by the medical board
cannot be ascertained. Otherwise also, as
per above discussion, the age of a person
by medical examination can be accurately
determined only if he is about 18 years of
age and a person, who is shown to be 29
years of age at the time of examination by
the medical board, his age cannot be
determined by precision. In the light of
Section 7A of the Act, on his appearance in
the trial court the court never assessed him
494 INDIAN LAW REPORTS ALLAHABAD SERIES
to be a juvenile to make an inquiry for
determination of his age. As per Section 7A
of the Act at the time of enquiry the court
may take such evidence as it thinks
necessary, so as to determine the age of
such person and shall record a finding
whether the person is juvenile or not. In the
present case also, the Appellate Court has
clearly reached at a conclusion that at the
time
of
determination
of
age
the
complainant was not given a notice while at
the
time
of
appeal
the
revisionist
intentionally did not appear before the
court even after service by refusal and kept
absconding after the non bailable warrants
were issued against him by the court
concerned. The appellant court found the
statement of the revisionist under Section
313 Cr.P.C. and license of DBBL gun
issued in the name of revisionist before the
date of incident, to be an admission on the
part of the accused revisionist of being
major on the date of incident. Apart from
this, in this court again two agreement to
sale and one power of attorney have been
placed which bear the thumb impression of
the revisionist this again indicates that the
revisionist was major before the date of
incident as he was putting his thumb
impression
on
the
above
mentioned
documents independently and not under the
guardianship of any other person claiming
to be minor.

39.