# Shane Abbas Revisionist v. State of U.P. & Anr. 1096 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 6 ILRA 1095
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-24
- **Case number:** Criminal Revision No. 944 of 2017
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shane-abbas-revisionist-v-state-of-u-p-anr-1096-indian-law-reports-allahabad-48632
- **Pages:** 18

## Headnote

Criminal Law - Juvenile Justice Act, 2015Revisionist challenging the order declaring the
Opposite party as juvenile-disputing the date of
birth in the High School Certificate as according
to the certificate issued by the Muncipal
Corporation Moradabad the date of birth is
different -throughout from class K.G. to XI, the
date of birth is same as in high school
certificate-valid proof for age determination -if
matriculation certificate is available and there is
no other material evidence to create doubtmatriculation certificate will determine the age.

Revision dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,757 of 58,789. This is a partial read: ask again with offset=39757 for what follows._

6 All. Shane Abbas Vs. State of U.P. & Anr.
1095

"...The
evidence
on
record
suggests neglect of its own right for long
time in preferring appeals. The court cannot
enquire into belated and state claims on the
ground of equity. Delay defeats equity. The
court helps those who are vigilant and "do
not

15. In Maniben Devraj Shah Vs.
Municipal
Corporation
of
Brihan
Mumbai, 2012

"What needs to be emphasised is
that even though a liberal and justice
oriented approach is required to be adopted
in the exercise of power under Section 5 of
the Limitation Act and other similar statutes,
the Courts can neither become oblivious of
the fact that the successful litigant has
acquired certain rights on the basis of the
judgment under challenge and a lot of time
is consumed at various stages of litigation
apart from the cost. What colour the
expression 'sufficient cause' would get in the
factual matrix of a given case would largely
depend on bona fide nature of the
explanation. If the Court finds that there has
been no negligence on the part of the
applicant and the cause shown for the delay
does not lack bona fides, then it may
condone the delay. If, on the other hand, the
explanation given by the applicant is found
to be concocted or he is thoroughly
negligent in prosecuting his cause, then it
would be a legitimate exercise of discretion
not to condone the delay. In cases involving
the State and its agencies/instrumentalities,
the Court can take note of the fact that
sufficient time is taken in the decision
making process but no premium can be
given for total lethargy or utter negligence
on the part of the officers of the State and /
or its agencies/instrumentalities and the
applications filed by them for condonation
of delay cannot be allowed as a matter of
course by accepting the plea that dismissal
of the matter on the ground of bar of
limitation will cause injury to the public
interest."

16. In my view, the kind of
explanation rendered herein does not satisfy
the observations of Apex Court that if delay
has occurred for reasons which does not
smack of mala fide, the Court should be
reluctant to refuse condonation. On the
contrary, I find that here is a case which
shows a complete careless and reckless long
delay on the part of revisionist which has
remain
virtually
unexplained
at
all.
Therefore, I do not find any reason to
exercise my judicial discretion exercising
judiciously so as to justify condonation of
delay in the present case.

17. In the result, the application
deserves to be dismissed.

18. Accordingly, the application for
condonation application is hereby rejected.

Since delay condonation application
No. 135146 of 2016 has been rejected by
this Court vide order of date, therefore, the
present revision is also dismissed as barred
by limitation.
----------
(2022)06ILR A1095
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.03.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Revision No. 944 of 2017

Shane Abbas ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Revisionist:
Sri Krishna Dutt Tiwari

Counsel for the Opposite Parties:
Govt. Advocate, Sri Firoz Haider, Sri Nazrul
Islam Jafri

Criminal Law - Juvenile Justice Act, 2015Revisionist challenging the order declaring the
Opposite party as juvenile-disputing the date of
birth in the High School Certificate as according
to the certificate issued by the Muncipal
Corporation Moradabad the date of birth is
different -throughout from class K.G. to XI, the
date of birth is same as in high school
certificate-valid proof for age determination -if
matriculation certificate is available and there is
no other material evidence to create doubtmatriculation certificate will determine the age.

Revision dismissed. (E-9)

List of Cases cited:

1. Rishipal Singh Solanki Vs St. of U.P. & ors.
2021 0 Supreme (SC) 698

2. Ashwani Kumar Saxena Vs St. of M.P. in
Criminal Appeal No. 1403 of 2021 (decided on
13.09.2012),

3. Jabar Singh Vs Dinesh & anr. - (2010) 3 SCC
757

4. Ram Vijay Singh Vs St. of U.P.- 2021 CriLJ
2805

5. Shah Nawaz Vs St. of U.P. & ors. reported in
AIR 2011SC3107

6. Parag Bhati (Juvenile through Legal Guardian
Mother-Smt. Rajini Bhati Vs St. of U.P. & anr. -
(2016) 12 SCC 744

7. Abuzar Hossain @ Gulam Hossain Vs St. of
West Bengal reported in 2012 (10) SCC 489
(Delivered by Hon'ble Shamim Ahmed, J.)

1. This revision is directed against the
judgment and order dated 09.03.2017
passed by Special Judge (POCSO Act)
Additional Sessions Judge Court No. 12
Moradabad in Appeal No. 207/2016 (Shane
Abbas Vs. Kumar Fiza Zaidi) dismissing
the appeal of the present revisionist and
confirmed the order dated 20.10.2016
passed
by
Juvenile
Justice
Board
Moradabad in Case No. 77/2016 arising out
of Case Crime No. 237/2016, under
Sections 302, 120B I.P.C. Police Station
Civil Lines, District Moradabad, by which
the opposite party No.2-Kumari Fiza
Naseem Zaidi has been

2. The brief facts of the present case
is that on 25.02.2016 opposite party No.2Kumari Fiza Naseem Zaidi and others have
committed brutal murder of the brother of
the
revisionist,
who
was
practising
advocate and returning from kachery
(District Court). The opposite party No.2
raised the plea of her juvenility before the
Juvenile Justice Board Moradabad and after
considering the material evidence the
Juvenile Justice Board, Moradabad vide
order
dated
20.10.2016
allowed
the
application of the opposite party no.2 and
she was declared juvenile. Thereafter, the
present revisionist filed an appeal against
the order dated 20.10.2016 before the
Special Judge (POCSO Act) Additional
Sessions Judge Court No. 12 Moradabad
bearing Criminal Appeal No. 207/2016
(Shane Abbas Vs. Kumari Fiza Zaidi)
raising objection that the date of birth of
the opposite party No.2-Kumari Fiza
Naseem Zaidi as per the certificate issued
by the Municipal Corporation Moradabad
is 16.11.1998 and according to the High
School Certificate her date of birth is
16.11.1999 and as per Medical report (Xray report) her age is 19 years, even then
learned courts below have not considered
the same and passed the impugned order.
Several other grounds were taken while
6 All. Shane Abbas Vs. State of U.P. & Anr.
1097
assailing the impugned order passed by the
court below.

3. I have heard the learned counsel for
the parties and perused the record.

4. Before this Court proceeds further
to assess the evidence and to consider and
decide the case on merits, it shall be
appropriate to examine the nature and
scope of enquiry as contemplated under the
law.

5. Hon'ble Apex Court in the case of
Rishipal Singh Solanki Vs. State of Uttar
Pradesh and others 2021 0 Supreme (SC)
698 in paras 18,19, 20, 21, 22, 23, 24, 25,
26, 27 has held as under:

"18. The JJ Act, 2015 is a sequel
to
the
Juvenile
Justice
(Care
and
Protectiion of Children ) Act 2000
(hereinafter referred to as the ''JJ Act,
2000') which has since been repealed.
Under the JJ Act, 2000, an amendment was
made by Act 33 of 2006 with effect from
22.8.2006 under which Section 7A of was
inserted which reads as under:

"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 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." of Section 49 of
the said Act reads as under:

"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."

19. Rule 12 of the Juvenile
Justice (Care and Protection of Children)
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules, 2007 (hereinafter referred to as the
''JJ Rules, 2007') prescribed the procedures
for determination of age. Rule 12 reads 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 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
6 All. Shane Abbas Vs. State of U.P. & Anr.
1099
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."

20. Rule 12 of the JJ Rules, 2007
deals with the procedure to be followed in
determination of age. The juvenility of a
person in conflict with law had to be
decided prima facie on the basis of physical
appearance, or documents, if available. But
an inquiry into the determination of age by
the Court or the JJ Board was by seeking
evidence
by
obtaining
:
(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. Only
in the absence of either (i), (ii) and (iii)
above, the medical opinion could be sought
from a duly constituted Medical Board to
declare the age of the juvenile or child. It
was also provided that while determination
was being made, benefit could be given to
the child or juvenile by considering the age
on lower side within the margin of one
year. If a juvenile in conflict with law was
found to be below 18 years, an order had to
be passed declaring the status of the
juvenility by the Court. The said procedure
was also applicable to dispose off cases
where the status of the juvenility had not
been determined in accordance with the
Act and the Rules made thereunder.

21. On repeal of JJ Act, 2000 and
on the enforcement of JJ Act, 2015, the
procedure to be followed when a claim of
juvenility is raised before any court, other
than a Board is stipulated under Section 9
(2) & (3). The same reads as under -

"2) In case a person alleged to
have committed an offence claims before a
court other than a Board, that the person is
a child or was a child on the date of
commission of the offence, or if the court
itself is of the opinion that the person was a
child on the date of commission of the
offence, the said court shall make an
inquiry, take such evidence as may be
necessary
(but
not
an
affidavit)
to
determine the age of such person, and shall
record a finding on the matter, stating the
age of the person as nearly as may be:

Provided that such a claim may
be raised before any court and it shall be
recognised at any stage, even after final
disposal of the case, and such a claim shall
be determined in accordance with the
provisions contained in this Act and the
rules made thereunder even if the person
has ceased to be a child on or before the
date of commencement of this Act.

(3) If the court finds that a person
has committed an offence and was a child
on the date of commission of such offence,
it shall forward the child to the Board for
passing
appropriate
orders
and
the
sentence, if any, passed by the court shall
be deemed to have no effect."

There is no corresponding Rule
to determine juvenility akin to Rule 12 of
the JJ Rules, 2007.

22. On the other hand, under
section 94 of the JJ Act, 2015, a
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
presumption is raised that when a person is
brought before the JJ Board or the Child
Welfare Committee (''Committee' for short)
(other than for the purpose of giving
evidence) and the said person is a child, the
JJ Board or the Committee shall record
such observation stating the age of the
child as nearly as may be, and proceed
with the inquiry under Section 14 or
Section 36, as the case may be, without
waiting for further confirmation of the age.
But where the said Board or the Committee
has
reasonable
grounds
for
doubt
regarding whether the person brought
before it is a child or not, the JJ Board or
the Committee, as the case may be, shall
undertake the process of age determination
by seeking evidence by obtaining -

(i) the date of birth certificate
from the school, or the matriculation or
equivalent certificate from the concerned
examination Board, if available; and in the
absence thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii) and only in the absence of (i)
and (ii) above, age shall be determined by
an ossification test or any other latest
medical age determination test conducted
on the orders of the Committee or the
Board.

Provided such age determination
test conducted on the order of the
Committee or the Board shall be completed
within fifteen days from the date of such
order. The age recorded by the Committee
or the Board to be the age of person so
brought before it shall, for the purpose of
the Act, be deemed to be the true age of
that person. For immediate reference
section 94 of JJ Act, 2015 is extracted as
under:

"94.
Presumption
and
determination of age.- (1) Where, it is
obvious to the Committee or the Board,
based on the appearance of the person
brought before it under any of the
provisions of this Act (other than for the
purpose of giving evidence) that the said
person is a child, the Committee or the
Board shall record such observation
stating the age of the child as nearly as
may be and proceed with the inquiry under
Section 14 or Section 36, as the case may
be, without waiting for further confirmation
of the age.

(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Committee or
the Board, as the case may be, shall
undertake
the
process
of
age
determination, by seeking evidence by
obtaining -

a) the date of birth certificate
from the school, or the matriculation or
equivalent certificate from the concerned
examination Board, if available; and in the
absence thereof;

b) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

c) and only in the absence of (i)
and

(ii)
above,
age
shall
be
determined by an ossification test or any
other latest medical age determination test
conducted on the orders of the Committee
or the Board.
6 All. Shane Abbas Vs. State of U.P. & Anr.
1101

Provided such age determination
test conducted on the order of the
Committee or the Board shall be completed
within fifteen days from the date of such
order.

(3)
The
age
recorded
by
the
Committee or the Board 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.

23. Under section 7A of JJ Act,
2000 which was inserted by an amendment
with effect from 22.08.2006, provision was
made to claim juvenility by contending that
the accused person was a juvenile on the
date of commission of the offence and in
such a case, on the evidence taken on
record, a finding regarding the age of such
person had to be recorded by the court,
other than a JJ Board. The claim for
juvenility could be raised before any Court
and at any stage, even after the final
disposal of a case and such claim had to be
determined in terms of the said Act and the
rules made thereunder. If the Court found a
person to be a juvenile on the date of
commission of offence under sub-section
(1) of section 7A of the JJ Act, 2000, it had
to forward the juvenile to the JJ Board for
passing
appropriate
orders
and
the
sentence, if any, passed by a Court would
not have any effect. However, under the JJ
Act, 2015, a provision corresponding to
section 7A of the JJ Act, 2000, is in the
form of sub-Section 2 of Section 9 of the
said Act, which has been extracted above.

24. Further, unlike section 49 of JJ
Act, 2000, section 94 of JJ Act, 2015 provides
for presumption and determination of age if
the Juvenile Justice Board or the Committee
has reasonable grounds to doubt whether the
person brought before it is a child or not. It
shall undertake the process of determination
of age by seeking evidence such as:

(i) the date of birth certificate from
the school, or the matriculation or equivalent
certificate from the concerned examination
Board, if available; and in the absence
thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat; and

(iii) only in the absence of (i) and
(ii) above, age shall be determined by an
ossification test or any other latest medical
age determination test conducted on the
orders of the Committee or the Board.

25. The difference in the procedure
under the two enactments could be discerned
as under:

(i) As per JJ Act, 2015 in the
absence of requisite documents as mentioned
in Sub-section (2) of Section 94(a) and (b),
there is provision for determination of the
age by an ossification test or any other
medical age related test to be conducted on
the orders of the Committee or the JJ Board
as per Section 94 of the said Act; whereas,
under Rule 12 of the JJ Rules, 2007, in the
absence of relevant documents, a medical
opinion had to be sought from a duly
constituted Medical Board which would
declare the age of the juvenile or child.

(ii) With regard to the documents
to be provided as evidence, what was
provided under Rule 12 of the JJ Rules,
2007 has been provided under sub-section
2 of section 94 of the JJ Act, 2015 as a
substantive provision.

(iii) Under Section 49 of the JJ
Act, 2000, where it appeared to a
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
competent authority that a person brought
before it was a juvenile or a child, then
such authority could, after making an
inquiry and taking such evidence as was
necessary, record a finding as to the
juvenility of such person and state the age
of such person as nearly as may be. Subsection (2) of Section 49 stated 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 had been made
is not a juvenile and the age recorded by
the competent authority to be the age of
person so brought before it, for the purpose
of the Act, be deemed to be the true age of
that person.

26. But, under Section 94 of the
JJ Act, 2015, which also deals with
presumption and determination of age, the
Committee or the JJ Board has to record
such observation stating the age of the
child as nearly as may be and proceed with
the inquiry without waiting for further
confirmation of the age. It is only when the
Committee or the JJ Board has reasonable
grounds for doubt regarding whether the
person brought before it is a child or not, it
can
undertake
the
process
of
age
determination, by seeking evidence.

27. Sub-section (3) of Section 94
states that the age recorded by the
Committee or the JJ Board to be the age of
the persons so brought before it shall, for
the purpose of the Act, be deemed to be the
true age of that person. Thus, there is a
finality attached to the determination of the
age recorded and it is only in a case where
reasonable grounds exist for doubt as to
whether the person brought before the
Committee or the Board is a child or not,
that a process of age determination by
seeking evidence has to be undertaken.

6. The Supreme Court of India in
Ashwani Kumar Saxena Vs. State of
M.P. in Criminal Appeal No. 1403 of
2021 (decided on 13.09.2012), examined
the scope of an enquiry expected from a
Court, the Juvenile Justice Board and the
Committee
in
the
light
of
earlier
judgements and was pleased to observe in
para-27 as under:-

"Section 7A, 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 J.J. Act. Criminal Courts, JJ
Board, Committees etc., we have noticed,
proceed as if they are conducting a trial,
inquiry, enquiry or investigation as per the
Code. Statute requires the Court or the
Board only to make an ''inquiry' and in
what manner that inquiry has to be
conducted is provided in JJ Rules. Few of
the expressions used in Section 7A and
Rule 12 are of considerable importance
and a reference to them is necessary to
understand the true scope and content of
those provisions. Section 7A has used the
expression "court shall make an inquiry",
"take such evidence as may be necessary"
and "but not an affidavit". The Court or the
Board can accept as evidence something
more than an affidavit i.e. the Court or the
Board can accept documents, certificates
etc. as evidence need not be oral evidence."

7. The Hon'ble Supreme Court held
that the enquiry on the point of juvenility
has nothing to do with the enquiry as
contemplated under other legislations and
gave an opinion in paras-32, 34 and 36 of
the aforesaid judgment of Ashwani Kumar
Saxena (supra) as below:

32. Consequently, the procedure
to be followed under the J.J. Act in
6 All. Shane Abbas Vs. State of U.P. & Anr.
1103
conducting an inquiry is the procedure laid
down in that statute itself i.e. Rule 12 of the
2007 Rules. We cannot import other
procedures laid down in the Code of
Criminal
Procedure
or
any
other
enactment while making an inquiry with
regard to the juvenility of a person, when
the claim of juvenility is raised before the
court exercising powers under section 7A
of the Act. Many of the cases, we have
come across, it is seen that the Criminal
Courts are still having the hangover of the
procedure of trial or inquiry under the
Code as if they are trying an offence under
the Penal laws forgetting the fact that the
specific procedure has been laid down in
section 7A read with Rule 12.

34. "Age determination inquiry"
contemplated under section 7A of the Act
r/w Rule 12 of the 2007 Rules enables the
court to seek evidence and in that process,
the court can obtain the matriculation or
equivalent certificates, if available. Only
in the absence of any matriculation or
equivalent certificates, the court need
obtain the date of birth certificate from the
school first attended other than a play
school.
Only
in
the
absence
of
matriculation or equivalent certificate or
the date of birth certificate from the
school first attended, the court need obtain
the birth certificate given by a corporation
or a municipal authority or a panchayat
(not an affidavit but certificates or
documents). The question of obtaining
medical opinion from a duly constituted
Medical Board arises only if the above
mentioned documents are unavailable. In
case exact assessment of the age cannot be
done, then the court, for reasons to be
recorded, may, if considered necessary,
give the benefit to the child or juvenile by
considering his or her age on lower side
within the margin of one year.

36. Age determination inquiry
contemplated under the JJ Act and Rules
has nothing to do with an enquiry under
other legislations, like entry in service,
retirement, promotion etc. There may be
situations where the entry made in the
matriculation or equivalent certificates,
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 Court, J.J. Board or a
Committee functioning under the J.J. Act is
not expected to conduct such a roving
enquiry and to go behind those certificates
to examine the correctness of those
documents, kept during the normal course
of business. Only in cases where those
documents or certificates are found to be
fabricated or manipulated, the Court, the
J.J. Board or the Committee need to go for
medical report for age determination.

8. In Jabar Singh Vs. Dinesh and
another - (2010) 3 SCC 757, Hon'ble
Apex Court Court considered a situation
wherein the entry of date of birth in the
admission form of the school records or
transfer certificates did not satisfy the
condition laid down under Section 35 of the
Evidence Act, i.e., the said entry was not in
any public or official register and was not
made either by a public servant, in the
discharge of his official duty or by any
person in performance of a duty specially
enjoined by the law of the country and
therefore the said evidence was not relevant
for the purpose of determining the age of
the accused in the said case. In the
aforesaid case, this Court set aside the
order of the High Court in revision and
confirmed the order of the trial Court
holding that the accused therein was a
juvenile at the time of the commission of
the alleged offence.
1104 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Hon'ble Apex Court in the case of
Ram Vijay Singh Vs. State of Uttar
Pradesh- 2021 CriLJ 2805, has observed
as under :

"the ossification test is not the sole
criterion of age determination and a blind
and mechanical view regarding the age of the
person cannot be adopted solely on the basis
of
medical
opinion
by
radiological
examination.
Though,
radiological
examination is a useful guiding factor for
determining the age of a person, 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. The relevant
paragraphs of the said judgment are
extracted as under: "14. We find that the
procedure prescribed in Rule 12 is not
materially different than the provisions of
Section 94 of the Act to determine the age of
the person There are minor variations as the
Rule 12(3)(a)(i) and (ii) have been clubbed
together with slight change in the language.
Section 94 of the Act does not contain the
provisions regarding benefit of margin of age
to be given to the child or juvenile as was
provided in Rule 12(30(b) of the Rules. The
importance of ossification test has not
undergone change with the enactment of
Section 94 of the Act. The reliability of the
ossification test remains vulnerable as was
Under Rule 12 of the Rules."

10. Hon'ble Apex Court in the Case of
Shah Nawaz Vs. State of U.P. and others
reported in AIR 2011SC3107 in paras 7,
8, 9, 10, 11 and 12 has held as under:

"7) In Raju and another Vs.
State of Haryana (2010) 3 SCC 235, this
Court had admitted "mark sheet" as one of
the proof in determining the age of the
accused person. In that case, the appellants
therein Raju and Mangli along with Anil
alias Balli and Sucha Singh were sent up
for trial for allegedly having committed an
offence punishable under Section 302 read
with Section 34 of the IPC. Accused Sucha
Singh was found to be a juvenile and his
case was separated for separate trial under
the Act. Others were convicted under
Section 302 read with Section 34 of the
IPC and were sentenced to imprisonment
for life and to pay a fine of Rs. 5,000/-.
Apart from contending on the merits of the
prosecution case, insofar as appellant No.
1,
Raju,
is
concerned,
the
counsel
appearing for him submitted that on the
date of the incident that is on (31.03.1994),
he was a juvenile and as per his mark sheet,
wherein his date of birth was recorded as
1977, he was less than 17 years of age on
the date of the incident. Learned counsel
submitted that having regard to the recent
decision of this Court in Hari Ram Vs.
State of Rajasthan and another, (2009)
13 SCC 211, appellant No. 1 must be held
to have been a minor on the date of the
incident and the provisions of the Act
would apply in his case. Learned counsel
further contended that the appellant No. 1
would have to be dealt with under the
provisions of the said Act in keeping with
the decision in the aforesaid case. On
merits, while accepting the claim of the
learned counsel for accused-appellant, this
Court altered the conviction and sentence
and convicted under Section 304 Part I read
with Section 34 IPC instead of Section 302
read with Section 34 IPC. As far as
appellant No. 1, namely, Raju was
concerned, while accepting the entry
relating to date of birth in the mark sheet
referred his case to the Board in terms of
Section 20 of the Act to be dealt under the
provisions of the said Act in keeping with
6 All. Shane Abbas Vs. State of U.P. & Anr.
1105
the provision of Section 15 thereof. It is
clear from the said decision that this Court
has accepted mark sheet as one of the proof
for determining the age of an accused
person.

8) Similarly, this Court has
treated the date of birth in School Leaving
Certificate as valid proof in determining the
age of an accused person. In Bhoop Ram
Vs. State of U.P. (1989) 3 SCC 1, this
Court considered whether the appellant
therein is entitled lesser imprisonment than
imprisonment for life and should have been
treated as a "child" within the meaning of
Section 2(4) of the U.P. Children Act, 1951
(1 of 1952). The following conclusion in
para 7 is relevant which reads as under:-

"7.....The first is that the appellant
has produced a school certificate which
carries the date 24-6-1960 against the
column "date of birth". There is no material
before us to hold that the school certificate
does not relate to the appellant or that the
entries therein are not correct in their
particulars.... "

It is clear from the above decision
that this Court relied on the entry made in
the column "date of birth" in the School
Leaving Certificate.

9) In Rajinder Chandra Vs.
State of Chhattisgarh and another (2002)
2 SCC 287, this Court once again
considered the entry relating to date of birth
in the mark sheet and concluded as under:

"5. It is true that the age of the
accused is just on the border of sixteen
years and on the date of the offence and his
arrest he was less than 16 years by a few
months only. In Arnit Das v. State of Bihar
this Court has, on a review of judicial
opinion, held that while dealing with the
question of determination of the age of the
accused for the purpose of finding out
whether he is a juvenile or not, a
hypertechnical approach should not be
adopted while appreciating the evidence
adduced on behalf of the accused in
support of the plea that he was a juvenile
and if two views may be possible on the
said evidence, the court should lean in
favour of holding the accused to be a
juvenile in borderline cases. The law, so
laid down by this Court, squarely applies to
the facts of the present case.

10) In Arnit Das v. State of Bihar
(2000) 5 SCC 488, the Court held that
while
dealing
with
a
question
of
determination of the age of an accused, for
the purpose of finding out whether he is a
juvenile or not, a hyper-technical approach
should not be adopted while appreciating
the evidence adduced on behalf of the
accused in support of the plea that he is a
juvenile and if two views may be possible
on the same evidence, the court should lean
in favour of holding the accused to be
juvenile in borderline cases.

11) In Ravinder Singh Gorkhi
Vs. State of U.P. (2006) 5 SCC 584 with
regard to the entries made in School
Leaving
Certificate,
this
Court
has
observed as under:- "17. The schoolleaving certificate was said to have been
issued in the year 1998. A bare perusal of
the said certificate would show that the
appellant was said to have been admitted
on 1-8-1967 and his name was struck off
from the roll of the institution on 6-5-1972.
The said school-leaving certificate was not
issued in the ordinary course of business of
the school. There is nothing on record to
show that the said date of birth was
recorded in a register maintained by the
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
school in terms of the requirements of law
as contained in Section 35 of the Evidence
Act. No statement has further been made by
the said Headmaster that either of the
parents of the appellant who accompanied
him to the school at the time of his
admission therein made any statement or
submitted any proof in regard thereto. The
entries
made
in
the
school-leaving
certificate, evidently had been prepared for
the purpose of the case. All the necessary
columns were filled up including the
character of the appellant. It was not the
case of the said Headmaster that before he
had made entries in the register, age was
verified. If any register in regular course of
business was maintained in the school,
there was no reason as to why the same
had not been produced."

12) In Pradeep Kumar Vs. State
of U.P. 1995 Supp (4) SCC 419, this Court
considered the commission of offence by
persons below 16 years of age. The
question before a three- Judge Bench was
whether each of the appellants in those
appeals was a child within the meaning of
Section 2(4) of the U.P. Children Act, 1951
and as such on conviction under Section
302 read with Section 34 IPC should have
been sent to an approved school for
detention till the age of 18 years. At the
time of granting special leave, appellant,
by name, Jagdish produced High School
Certificate, according to which he was
about 15 years of age at the time of
occurrence. Appellant - Krishan Kant
produced horoscope which showed that he
was 13 years of age at the time of
occurrence. So far as appellant - Pradeep
was concerned, a medical report was
called for by this Court which disclosed
that his date of birth as 07.01.1959 was
acceptable on the basis of various tests
conducted by the medical authorities. In the
above factual scenario/details, this Court
concluded as under:-

"3. It is thus proved to the
satisfaction of this Court that on the date of
occurrence,
the
appellants
had
not
completed 16 years of age and as such they
should have been dealt with under the U.P.
Children Act instead of being sentenced to
imprisonment on conviction under Section
302/34 of the Act"

After saying so and after finding
that the appellants were aged more than 30
years, this Court directed not to send them
to an approved school under the U.P.
Children Act for detention, while sustaining
the conviction of the appellants under all
the charges framed against them, quashed
the sentences awarded to them and ordered
their release forthwith."

11. In case of Parag Bhati (Juvenile
through Legal Guardian-Mother-Smt.
Rajini Bhati v. State of Uttar Pradesh
and another - (2016) 12 SCC 744, Ho'ble
Apex Court observed as under:

"34. It is no doubt true that if
there is a clear and unambiguous case in
favour of the juvenile accused that he was a
minor below the age of 18 years on the date
of the incident and the documentary
evidence at least prima facie proves the
same, he would be entitled to the special
protection under the JJ Act. But when an
accused commits a grave and heinous
offence and thereafter attempts to take
statutory shelter under the guise of being a
minor, a casual or cavalier approach while
recording as to whether an accused is a
juvenile or not cannot be permitted as the
Courts are enjoined upon to perform their
duties with the object of protecting the
confidence
of
common
man
in
the
6 All. Shane Abbas Vs. State of U.P. & Anr.
1107
institution
entrusted
with
the
administration of justice.

35.