# Revisionist v. State of U.P. Opp. Party

- **Citation:** (2013) 3 ILRA 1309
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-23
- **Case number:** Criminal Revision No. 364 of 2006
- **Bench:** Arvind Kumar Tripathi (Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionist-v-state-of-u-p-opp-party-42694
- **Pages:** 4

## Headnote

Justice Act under section 22(5)-based
upon date of birth on school leaving
certificate-ignored-order
not
sustainable-quashed-with
direction
of
fresh consideration.

Held: Para-13 & 14

## Text

3 All] Babloo Vs. State of U.P.
1309
Parties are directed to appear thereon
07.10.2013 before the learned trial court.
Registry is directed to communicate copy
of this order within three days to the
learned Sessions Judge concerned as well
as to the concerned trial court for
compliance of the order in letter and
spirit.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.09.2013

BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

Criminal Revision No. 364 of 2006

Babloo

 ...Revisionist
Versus
State of U.P. ...Opp. Party.

Counsel for the Petitioner:
Sri A.K. Dixit

Counsel for the Respondents:
G.A.

Criminal Revision- Claim of juvenile
Justice Act under section 22(5)-based
upon date of birth on school leaving
certificate-ignored-order
not
sustainable-quashed-with
direction
of
fresh consideration.

Held: Para-13 & 14
13. In the instant case, court below has not
considered this aspect regarding the age
mentioned in School Leaving Certificate and
its evidentiary value and has not given any
finding about the same.

14. In view of above discussion and the
reasons mentioned above, this criminal
revision is liable to be allowed and is
hereby by allowed. Impugned order is
quashed. The matter is remanded back
to the Court below to decide the matter
afresh, after giving opportunity to the
revisionist to adduce all such evidence
which he wants to adduce, within a
period of six months.

Case Law discussed:
2013(1) JIC 192; AIR 1965 SC 282; 2002(2)
JIC 984(All.)

(Delivered by Hon'ble Arvind Kumar
Tripathi(II), J.)

1. This criminal revision has been filed
by Babloo challenging the order dated
31.5.2006 passed by Additional Sessions
Judge,
Sitapur
in
Sessions
Trial
No.361/1997(State
Vs.
Babloo)
under
Section 307 IPC, P.S.Maholi, District-
Sitapur, by which the application of the
revisionist under Section 20/49 of Juvenile
Justice (Care and Protection of Children Act,
2000) (hereinafter referred as the Act), was
rejected and the revisionist was not declared
juvenile on the date of occurrence.

2. Heard learned counsel for the
revisionist and learned AGA for the State.

3. It was submitted that learned
Court below has erred in not believing the
School
Leaving
Certificate
of
the
revisionist which shows date of birth to be
12.6.1979. It was also submitted that
learned trial court has wrongly held that
this plea was not taken at the time of
appearance in the Court so it cannot be
taken at the stage of recording of
statement under Section 313 Cr.P.C.

4. In the case of Hari Ram Vs. State
of Rajasthan and Another 2010 (68) ACC
367 Apex Court has held that plea of
juvenile can be raised before any Court at
any stage even after final disposal of a
case.

"Section 7-A makes provision for a
claim of juvenility to be raised before any
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
Court at any stage, even after final disposal
of a case and sets out the procedure which
the Court is required to adopt, when such
claim of juvenility is raised. It provides for
an inquiry, taking of evidence as may be
necessary (but not affidavit) so as to
determine the age of a person and to record
a finding whether the person in question is a
juvenile or not. The aforesaid provisions
were, however, confined to Courts, and
proved inadequate as far as the Boards were
concerned. Subsequently, in the Juvenile
Justice (Care and Protection of Children)
Rules, 2007, which is a comprehensive
guide as to how the provisions of the
Juvenile Justice Act, 2000, are to be
implemented, Rule 12 was introduced
providing the procedure to be followed by
the Courts, the Boards and the Child
Welfare Committees for the purpose of
determination of age in every case
concerning a child or juvenile or a juvenile
in conflict with law."

5. In view of above provision and
decision of the Apex Court the plea of
juvenility can be taken at any stage.

6. So far as, the procedure regarding
determination of age is concerned Rule
22(5) of U.P. Juvenile Justice (Care and
Protection of Children Rules 2004) being
relevant in this case is being reproduced
as follows:-

7. Rule 22(5) of the U.P. Juvenile
Justice (Care and Protection of Children)
Rules, 2004, being relevant in this case is
being produced as follows:

"22(5) In every case concerning a
juvenile or child, the Board shall either
obtain-

(i) a birth certificate given by a
corporation or a municipal authority; or

(ii) a date of birth certificate from
the school first attended; or

(iii) matriculation or equivalent
certificates, if available; and

(iv) in the absence of (i) to (iii)
above, the medical opinion by a duly
constituted Medical Board, subject to a
margin of one year, in deserving cases for
the reasons to be recorded by such
Medical Board, regarding his age; and,
when 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."

7. According to this provision the
birth certificate given by a Corporation or
Municipal Authority or a date of birth
certificate from the school first attended is
relevant.

8. In the Case of Abuzar Hossain @
Gulam Hossain Vs. State of West Bengal,
2013 (1) JIC 192 Supreme Court, the
Apex Court has given certain guidelines
regarding which are reproduced as below:

"36. Now, we summarise the position
which is as under: (i) A claim of juvenility
may be raised at any stage even after final
disposal of the case. It may be raised for
the first time before this Court as well
after final disposal of the case. The delay
in raising the claim of juvenility cannot be
a ground for rejection of such claim. The
claim of juvenility can be raised in appeal
even if not pressed before the trial court
and can be raised for the first time before
this Court though not pressed before the
trial court and in appeal court. (ii) For
making a claim with regard to juvenility
after conviction, the claimant must
produce some material which may prima
facie satisfy the court that an inquiry into
3 All] Babloo Vs. State of U.P.
1311
the claim of juvenility is necessary. Initial
burden has to be discharged by the
person who claims juvenility. (iii) As to
what materials would prima facie satisfy
the court and/or are sufficient for
discharging the initial burden cannot be
catalogued nor can it be laid down as to
what weight should be given to a specific
piece of evidence which may be sufficient
to raise presumption of juvenility but the
documents referred to in Rule 12(3)(a)(i)
to (iii) shall definitely be sufficient for
prima facie satisfaction of the court about
the age of the delinquent necessitating
further enquiry under Rule 12. The
statement recorded under Section 313 of
the Code is too tentative and may not by
itself be sufficient ordinarily to justify or
reject the claim of juvenility. The
credibility and/or acceptability of the
documents
like
the
school
leaving
certificate or the voters' list, etc. obtained
after conviction would depend on the facts
and circumstances of each case and no
hard and fast rule can be prescribed that
they must be prima facie accepted or
rejected. In Akbar Sheikh2 and Pawan8
these documents were not found prima
facie credible while in Jitendra Singh10
the
documents
viz.,
school
leaving
certificate, marksheet and the medical
report were treated sufficient for directing
an inquiry and verification of the
appellant's age. If such documents prima
facie inspire confidence of the court, the
court may act upon such documents for
the purposes of Section 7A and order an
enquiry for determination of the age of
the delinquent.

(iv) An affidavit of the claimant or
any of the parents or a sibling or a
relative in support of the claim of
juvenility raised for the first time in
appeal or revision or before this Court
during the pendency of the matter or after
disposal of the case shall not be sufficient
justifying an enquiry to determine the age
of such person unless the circumstances
of the case are so glaring that satisfy the
judicial conscience of the court to order
an enquiry into determination of age of
the delinquent.

(v) The court where the plea of
juvenility is raised for the first time should
always be guided by the objectives of the
2000 Act and be alive to the position that
the beneficent and salutary provisions
contained in 2000 Act are not defeated by
hyper-technical approach and the persons
who are entitled to get benefits of 2000 Act
get such benefits. The courts should not be
unnecessarily influenced by any general
impression
that
in
schools
the
parents/guardians understate the age of
their wards by one or two years for future
benefits or that age determination by
medical examination is not very precise.
The matter should be considered prima
facie on the touchstone of preponderance
of probability. (vi) Claim of juvenility
lacking in credibility or frivolous claim of
juvenility or patently absurd or inherently
improbable claim of juvenility must be
rejected by the court at threshold whenever
raised."

9. In the instant case, the revisionist
has
relied
upon
School
Leaving
Certificate issued by junior high school
which shows date of birth to be 12.6.79.

10. In the instant case in order to
prove the date of birth Principal of
'Adarsh Janta Madhyamik Vidhyalay,
Basara, Sitapur' appeared along with the
original register. It is note worthy that this
scholar register was not filled by this
witness.
1312 INDIAN LAW REPORTS ALLAHABAD SERIES

11. In the case of Brij Mohan Singh
Vs. Priya Brat Narain Sinha and Others,
AIR 1965 Supreme Court 282 the Apex
Court has held that :

"An objection was faintly raised by
Mr. Agarwal as regards the admissibility
of Ex.2 on the ground that the register is
not an official record or a public register.
It is unnecessary to consider this question
as the fact that such an entry was really
made in the admission register showing
the appellant's date of birth as October
15,1935 has all along been admitted by
him. His case is that this was an incorrect
statement made at the request of the
person who went to get him admitted to
the school. The request was made, it is
suggested to make him appear two years
younger than he really was so that later in
life he would have an advantage when
seeking public service for which a
minimum age for eligibility is often
prescribed. The appellant's case is that
once this wrong entry was made in the
admission register it was necessarily
carried forward to the Matriculation
Certificate and was also adhered to in the
application for the post of a Sub-Inspector
of Police. This explanation was accepted
by the Election Tribunal but was rejected
by the High Court as untrustworthy.
However much one may condemn such an
act of making a false statement of age
with a view to secure an advantage in
getting public service, a judge of facts
cannot ignore the position that in actual
life this happens not infrequently. We find
it impossible to say that the Election
Tribunal was wrong in accepting the
appellant's explanation. Taking all the
circumstances into consideration we are
of the opinion that the explanation may
very well be true and so it will not be
proper for the court to base any
conclusion about the appellant's age on
the entries in these three documents, viz,
Ex.2, Ex.8 and Ex.18."

12. In the case of Dharma Chandra
Vs. State of U.P. and Anothers 2002 (2)
JIC 984 (AII) this court has held that the
age given by the parents of the revisionist
in the School Register cannot be held to
be reliable because basis of the said
entries has not been given.

13. In the instant case, court below
has not considered this aspect regarding
the age mentioned in School Leaving
Certificate and its evidentiary value and
has not given any finding about the same.

14. In view of above discussion and
the
reasons
mentioned
above,
this
criminal revision is liable to be allowed
and is hereby by allowed. Impugned order
is quashed. The matter is remanded back
to the Court below to decide the matter
afresh, after giving opportunity to the
revisionist to adduce all such evidence
which he wants to adduce, within a period
of six months.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.09.2013

BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

Criminal Revision No. 441 of 2010

Pawan Kumar

 ...Revisionist
Versus
State of U.P. and Anr.
 ...Opp. Parties

Counsel for the Petitioner:
Sri Ajai Krishna

Counsel for the Respondents:
G.A.,
Sri
Shafat
Ullah
Khan