# Sheelandra @ Rinku Revisionist v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 678
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-27
- **Case number:** Criminal Revision No. 3914 of 2022
- **Bench:** Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sheelandra-rinku-revisionist-v-state-of-u-p-ors-49388
- **Pages:** 7

## Headnote

(A) Criminal Law - Revision - Indian Penal
Code, 1860 -Section 376 (3) & 506 - The
Juvenile Justice (Care And Protection Of
Children) Act, 2015 - Section 3/4 , Section
94 - Presumption And Determination Of
Age - Scope Of Invoking Jurisdiction Of
High Court In Criminal Revision - inherent
and revisional jurisdiction should be used
cautiously,
especially
when
involving
factual appreciation - court findings can
be considered perverse if they are based
on ignoring or excluding relevant material,
considering
irrelevant/inadmissible
evidence,
or
defying
the
weight
of
evidence - finding may be considered
perverse if it contradicts the evidence or
defies logic, leading to the vice of
irrationality.(Para - 12, 13)

(B)
The
Juvenile
Justice
(Care
&
Protection of Children) Act, 2015 - Section
94 (2) (iii) - if a birth certificate is not
available, the age must be determined
through an ossification test or other
medical test. (Para - 16)

Before J.J.B. O.P. no.2 filed objection - as per
voter list revisionist was 25 years old - I.O.
recorded that revisionist was 22 years old -
Appellate Court's Findings on Revisionist's Age -
Revisionist's educational certificate deemed
unreliable - Based on computerised ration card,
final voter list of Panchayat 2021 voter list, and
CW-1 father's statement, revisionist deemed not
a child in conflict with law - held - Revisionist
was above 20 at the time of incident - J.J.B.
after reviewing U.P. Examination Board markssheet, transfer certificate, and educational
admission certificates - determined juvenile was
16 years, 11 months, and 24 days old at the
time of incident. (Para -3,4,18)

HELD:- Appellate court's perverse finding on
the revisionist's age determination is against
facts, evidence, and law. Impugned order set
aside. Juvenile Justice Board's order affirmed.
(Para -19)

Criminal Revision allowed. (E-7)
LIST OF CASES CITED:-

## Text

678 INDIAN LAW REPORTS ALLAHABAD SERIES
pronouncement of the judgment as already
held in Hardeep Singh (supra) since on
judgment being pronounced the trial comes
to a conclusion since until such time the
accused is being tried by the Court."

36. On overall evaluation and deeper
scrutiny of the law settled by the Apex
Court, this Court finds that while passing
the impugned order the trial judge has not
committed any illegality in examining the
law laid down by Five Judges of
Constitution Bench of the Apex Court in
the case of Hardeep Singh (Supra), which
has been followed in the recent judgment of
Five Judges' of Constitution Bench of the
Apex Court in the case of Sukh Pal Singh
Khaira (Supra), wherein the Apex Court
has framed certain guidelines for invoking
and exercising power under Section 319
Cr.P.C. for summoning any person to face trial
against whom final report has been submitted
by the Investigating Agency. The trial judge has
correctly read the law that the power under
Section 319 Cr.P.C. is a discretionary and an
extra ordinary power it is to be exercised
sparingly and only in those cases where the
circumstances of the case so warrant. It is not to
be exercised because the Magistrate or Sessions
Judge is of the opinion that some other person
may also be guilty of committing that offence.
Only where strong and cogent evidence occurs
against the person from the evidence led before
the court that such power should be exercised
and not in a casual or cavalier manner
[(Ref.:Hardeep
Singh,
Sukhpal
Singh
Khaira (Supras) and Mohd. Shafi Vs. Mohd.
Rafiq & Anr. passed Appeal (Crl.) No. 530
of 2007 dated 9th April, 2007]. The trial judge
has also correctly read that the test it has to be
applied under Section 319 Cr.P.C. is one which
is more than prima facie case as exercised at the
time of framing of the charge but short of
satisfaction to an extent that the evidence if goes
unrebutted would lead to conviction [Hardeep
Singh (Supra), Sukhpal Singh Khaira
(Supra) & Brijendra Singh (Supra)].

37. The trial judge while passing the
impugned order has recorded categorical
finding of fact that on the examination of the
first information report, the statements of the
witnesses, namely, Musabbar, Muzaffar and
Tasleema recorded under Sections 161 Cr.P.C.,
the statements of P.W.-1 and P.W.2 in dock and
other evidence, it is clear that the presence of
the revisionist at the time and place of incident
is prima facie visible. On the basis of such
categorical finding, the trial judge has rightly
passed the order impugned for summoning the
revisionist under Section 319 Cr.P.C. on an
application made by the informant to face trial
along with other two co-accused.

38. Consequently, the present revision
devoid of merits and is accordingly dismissed,
as there is no illegality or infirmity in the order
impugned passed by the trial judge for
summoning the revisionist to face trial under
Section 319 Cr.P.C. so as to warrant any
interference by this revisional Court under
Section 397/401 Cr.P.C.

39. There shall be no order as to costs.
----------
(2023) 11 ILRA 678
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2023

BEFORE

THE HON'BLE SANJAY KUMAR PACHORI, J.

Criminal Revision No. 3914 of 2022

Sheelandra @ Rinku ...Revisionist
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Revisionist:
Sri
Hari
Prakash
Mishra
11 All. Sheelandra @ Rinku Vs. State of U.P. & Ors.
679
Counsel for the Respondents:
G.A.

(A) Criminal Law - Revision - Indian Penal
Code, 1860 -Section 376 (3) & 506 - The
Juvenile Justice (Care And Protection Of
Children) Act, 2015 - Section 3/4 , Section
94 - Presumption And Determination Of
Age - Scope Of Invoking Jurisdiction Of
High Court In Criminal Revision - inherent
and revisional jurisdiction should be used
cautiously,
especially
when
involving
factual appreciation - court findings can
be considered perverse if they are based
on ignoring or excluding relevant material,
considering
irrelevant/inadmissible
evidence,
or
defying
the
weight
of
evidence - finding may be considered
perverse if it contradicts the evidence or
defies logic, leading to the vice of
irrationality.(Para - 12, 13)

(B)
The
Juvenile
Justice
(Care
&
Protection of Children) Act, 2015 - Section
94 (2) (iii) - if a birth certificate is not
available, the age must be determined
through an ossification test or other
medical test. (Para - 16)

Before J.J.B. O.P. no.2 filed objection - as per
voter list revisionist was 25 years old - I.O.
recorded that revisionist was 22 years old -
Appellate Court's Findings on Revisionist's Age -
Revisionist's educational certificate deemed
unreliable - Based on computerised ration card,
final voter list of Panchayat 2021 voter list, and
CW-1 father's statement, revisionist deemed not
a child in conflict with law - held - Revisionist
was above 20 at the time of incident - J.J.B.
after reviewing U.P. Examination Board markssheet, transfer certificate, and educational
admission certificates - determined juvenile was
16 years, 11 months, and 24 days old at the
time of incident. (Para -3,4,18)

HELD:- Appellate court's perverse finding on
the revisionist's age determination is against
facts, evidence, and law. Impugned order set
aside. Juvenile Justice Board's order affirmed.
(Para -19)

Criminal Revision allowed. (E-7)
LIST OF CASES CITED:-

1. Raj Kumar Vs St. of H.P., (2008) 11 SCC 76

2. St. of Mah. Vs Jagmohan Singh Kuldip Singh
Anand & ors., (2004) 7 SCC 659

3. Krishnan & anr. Vs Krishnaveni & anr.,
(1997) 4 SCC 241

4. Amit Kappor Vs Ramesh Chander, (2012) 9
SCC 460

5.
Rajinder
Kumar
Kindra

Vs
Delhi
Administration, AIR 1984 SC 1805

6. H.B. Gandhi & ors. Vs Gopi Nath & Sons,
1992 supp. (2) SCC 312

7. Triveni Rubber & Plastics Vs C.C.E. ,
Cochin AIR 1994 SC 1341

8. Gaya Din (D) thr. Lrs. & ors. Vs Hanuman
Prasad (D) thr. Lrs. & ors. , AIR 2001 SC 386

9. Gamini Bala Koteswara Rao & ors. Vs St. of
A.P. thr. Secy. , (2009) 10 SCC 636

10. Rishipal Singh Solanki Vs St. of U.P. & ors. ,
(2022) 8 SCC 602

(Delivered by Hon'ble Sanjay Kumar
Pachori, J.)

1. Heard Sri Hari Prakash Mishra,
learned counsel for the revisionist and Sri
Nagendra Singh, learned brief holder for
the State. Despite service of notice upon
opposite party no.2, none has appeared.

2. The present criminal revision has
been preferred to set aside the judgment
and order dated 25.07.2022 passed by
Sessions Judge, Etah in Criminal Appeal
No.47 of 2022 by which the appellate court
allowed the criminal appeal and set aside
the order dated 01.06.2022 passed by
Juvenile Justice Board, Etah in Criminal
Misc. Case No. 94 of 2021 arising out of
680 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Crime No. 525 of 2021, under Section
376 (3), 506 IPC and 3/4 POCSO Act,
whereby
the
Juvenile
Justice
Board
declared the revisionist.

3. Before the Juvenile Justice Board
the opposite party no.2 filed his objection,
alleging that as per voter list the revisionist
was 25 years old and the Investigating
Officer recorded that the revisionist was 22
years old on 19.11.2020.

4. The appellate court observed that
the educational certificate of the revisionist
is not a reliable document and on the basis
of
computerised ration
card
of
the
revisionist, final voter list of Panchayat
year 2021 and as per statement of CW-1
father of the revisionist, the revisionist was
not a child in conflict with law and held
that the revisionist was above 20 years
old at the time of the incident, which
had taken place in August, 2020.

5.

Learned
counsel
for
the
revisionist submits that the appellate
court has grossly erred while relying
upon the voter list, statement of
juvenile made before the investigating
officer and discarded the High School
Certificate of the revisionist and set
aside the well considered order of
Juvenile Justice Board on the basis of
perverse finding.

6. Per contra; learned A.G.A. for
the
State
defended
the
impugned
judgment and order passed by the
Appellate Court.

7. I have carefully considered the
submissions
made
by
the
learned
counsel for the revisionist and learned
A.G.A. for the State and perused the
material on record.

8. Before appreciating the evidence
and submissions of the revisionist, it would
be appropriate to discuss the scope of
invoking the jurisdiction of the High Court
in Criminal Revision.

9. The Supreme Court observed in
Raj Kumar v. State of Himachal
Pradesh, (2008) 11 SCC 76, as under:

"9. In Duli Chand v. Delhi Admn,
(1975) 4 SCC 649 the scope of invoking
jurisdiction of the High Court in criminal
revision was examined and it was held in a
case involving vehicular accident as
follows: (AIR p. 1960)

The question whether the accused
was guilty of negligence in driving the bus
and the death of the deceased was caused
due to his negligent driving is a question of
fact which depends for its determination on
an appreciation of the evidence. Where the
Magistrate, and the Additional Sessions
Judge arrived, on an assessment of the
evidence at a concurrent finding of fact that
the death of the deceased was caused by
negligent driving of the bus by the accused
and the High Court even though justified in
refusing to re-appreciate the evidence
reviewed the same in order to satisfy itself
that there was evidence in support of the
finding and that the finding was not
perverse, came to the conclusion that the
evidence established the death of the
deceased was caused by the negligent
driving of the bus by the accused, the
Supreme Court on an appeal under Article
136 refused to interfere.

10. In State of Orissa v. Nakula
Sahu, (1979) 1 SCC 328, it was held that
the High Court should not have interfered
with the concurrent findings recorded by
the trial court and the Sessions Judge in
11 All. Sheelandra @ Rinku Vs. State of U.P. & Ors.
681
exercise of revisional jurisdiction when
there was no error or fact or law arrived at
by the trial court or the Sessions Judge.

11.
In
State
of
Kerala
v.
Puttumana Illah Jathavedan Namboodiri,
(1999) 2 SCC 452, it was held that the
revisional jurisdiction is one of supervisory
jurisdiction exercised by the High Court for
correcting miscarriage of justice. But the
said revisional power cannot be equated
with the power of an appellate court nor
can it be treated even as a second appellate
jurisdiction. Ordinarily, therefore, it would
not be appropriate for the High Court to
re-appreciate the evidence and come to its
own conclusion on the same unless any
glaring feature is brought to the notice of
the High Court which would otherwise
tantamount to gross miscarriage of justice.

10. In State of Maharashtra v.
Jagmohan Singh Kuldip Singh Anand &
Others, (2004) 7 SCC 659, the Apex Court
has been observed that:

"22. The Revisional Court is
empowered to exercise all the powers
conferred on the Appellate Court by virtue
of the provisions contained in Section
401 CrPC. Section 401 CrPC is a provision
enabling the High Court to exercise all
powers of an Appellate Court, if necessary,
in aid of power of superintendence or
supervision as a part of power of revision
conferred on the High Court or the
Sessions Court. Section 397 CrPC confers
power on the High Court or Sessions
Court, as the case may be, "for the purpose
of satisfying itself or himself as to the
correctness, legality or propriety of any
finding, sentence or order, recorded or
passed, and as to the regularity of any
proceeding of such inferior court." It is for
the above purpose, if necessary, the High
Court or Sessions Court can exercise all
appellate
powers. Section
401 CrPC
conferring powers of an appellate court on
the revisional court is with the above
limited purpose. The provisions contained
in Section 395 to Section 401 CrPC, read
together, do not indicate that the revisional
power of the High Court can be exercised
as a second appellate power."

11. In Krishnan & Another v.
Krishnaveni & Another, (1997) 4 SCC
241, the Supreme Court observed as under:

"1. Exercises of the revisional
power by the high court under Section
397 read with Section 401 is to call for the
records of any inferior Criminal Court and
to examine the correctness, legality or
propriety of any finding, sentence or order
recorded or passed, and as to the
regularity of any proceedings of such
inferior Court and to pass appropriate
orders. The Court of Sessions and the
Magistrates are inferior criminal courts to
the High Court and Courts of judicial
Magistrate are inferior criminal courts to
the sessions judge. Ordinarily, in the
matter of exercise of power of revision by
any High Court, Section 397 and Section
401 are
required
to
be
read
together. Section 397 gives powers to the
High Court to call for the records as also
suo motu power under Section 401 to
exercise the revisional power on the
grounds mentioned therein, i.e. to examine
the correctness, legality or propriety of any
finding sentence or order, recorded or
passed and as to the regularity of any
proceedings of such inferior court, and to
dispose of the revision in the manner
indicated under Section 401 of the Code.
The revisional. power of the high Court
merely conserves the power of the high
Court to see that justice is done in
682 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with the recognised rules of
criminal
jurisprudence
and
that
its
subordinates courts do not exceed the
jurisdiction or abuse the power vested in
them under the code or to prevent abuse of
the process of the inferior criminal courts
or to prevent miscarriage of justice."

12. It is well settled principle of law
that the inherent as well as revisional
jurisdiction should be exercised cautiously.
Normally, a revisional jurisdiction should
be exercised on a question of law.
However, when factual appreciation is
involved, then it must find place in the
class of cases resulting in a perverse
finding. (Vide: Amit Kappor v. Ramesh
Chander (2012) 9 SCC 460).

13. It is also well settled
principle of law that the findings of
fact recorded by a court can be held to
be perverse if the findings have been
arrived at by ignoring or excluding
relevant material or by taking into
consideration
irrelevant/inadmissible
evidence. The finding may also be
said to be perverse if it is "against the
weight of evidence", or if the finding
so outrageously defies logic as to
suffer from the vice of irrationality.
(Vide: Rajinder Kumar Kindra v.
Delhi Administration AIR 1984 SC
1805; H.B. Gandhi & Ors. v. Gopi
Nath & Sons 1992 supp. (2) SCC
312; Triveni Rubber & Plastics v.
Collector
of
Central
Excise,
Cochin AIR 1994 SC 1341; Gaya
Din
(D)
thr.
Lrs.
&
Ors.
v.
Hanuman Prasad (D) thr. Lrs. &
Ors. AIR 2001 SC 386; Aruvelu &
Anr. (Supra); and Gamini Bala
Koteswara Rao & Ors. v. State of
Andhra
Pradesh thr.
Secretary
(2009) 10 SCC 636).

14. Section 94 of the Juvenile Justice
(Care and Protection of Children) Act,
2015, provides as follows:

"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-

(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:
11 All. Sheelandra @ Rinku Vs. State of U.P. & Ors.
683

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."

15. The main thrust of argument is as
to whether the High School Certificate of
the revisionist can be discarded on the basis
of age mentioned in the voter list of year
2020 and statement of the revisionist,
which
was
recorded
during
the
investigation in the enquiry provided under
Section 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015.

16. Section 94 (2) (iii) of the Juvenile
Justice (Care & Protection of Children)
Act, 2015 clearly provides that the date of
birth from the school or matriculation or
equivalent certificate by the concerned
examination board has to be first preferred
in the absence of age the birth certificate
issued by the Corporation or Municipal
Authority or Panchayat. In the absence of
these such document the age is to be
determined through ossification test or any
other latest medical age determination test
conducted on the orders of the concerned
authority.

17. In Rishipal Singh Solanki vs.
State of Uttar Pradesh And Others
(2022) 8 SCC 602, the Supreme Court has
held as under:

"22. 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."

"32.3 In Arnit Das v. State of
Bihar - (2000) 5 SCC 488, this Court
observed
that
while
considering
the
question as to determination of the age of
an accused for the purpose of ascertaining
whether he is a juvenile or not, a hypertechnical approach should not be adopted
while appreciating the evidence adduced in
support of the plea that he was a juvenile
and, if two views may be possible, the
Court should lean in favour of holding the
accused to be a juvenile in borderline
cases. This is because the Act being a
welfare legislation, the Courts should be
684 INDIAN LAW REPORTS ALLAHABAD SERIES
zealous to see that a juvenile derives full
benefits of the provisions of the Act but at
the same time it is also imperative for the
Courts to ensure that the protection and
privileges under the Act are not misused
by unscrupulous
persons
to
escape
punishment for having committed serious
offences."

32.13. In para 36 of parag Bharti
(2016) 12 SSC 744 it was observed:

'36. It is settled position of law
that if the matriculation or equivalent
certificates are available and there is no
other material to prove the correctness of
date of birth, the date of birth mentioned in
the matriculation certificate has to be
treated as a conclusive proof of the date of
birth of the accused. However, if there is
any doubt or a contradictory stand is being
taken by the accused which raises a doubt
on the correctness of the date of birth then
as laid down by this Court in Abuzar
Hossain vs. State of W.B., (2012) 10 SCC
489, an enquiry for determination of the
age of the accused is permissible which has
been done in the present case.'

18. Now I return back to case in hand,
the Juvenile Justice Board vide order dated
01.06.2022 after considering the markssheet of U.P. Examination Board Year
2019 of the revisionist and Transfer
Certificate of earlier school and statement
of CW-2 and CW-3, who have proved the
educational admission certificate, wherein
the date of birth of the juvenile is
25.12.2002 and the Juvenile Justice Board
declared that on the date and time of
incident the juvenile was 16 years, 11
months and 24 days old .

19. T aking into account the totality of
facts and keeping in mind, the ratio of the
Apex Court's judgment in the case of
Rishipal Singh Solanki vs. State of Uttar
Pradesh And Others (2022) 8 SCC 602,
and the reasons recorded and discussed
above, I am of the considered view that the
appellate court recorded perverse finding
into the enquiry for determination of age of
the revisionist and is against the facts,
evidence and law and the impugned order
dated 25.07.2022 is liable to be set aside
and the order date 01.06.2022 passed by the
Juvenile Justice Board is liable to be
affirmed. Hence the present criminal
revision is liable to be allowed.

20. In view of the above, the present
criminal revision is allowed and the order
dated 25.07.2022 passed by Sessions
Judge, Etah is set aside and the order dated
01.06.2022 passed by Juvenile Justice
Board, Etah is affirmed.

21. The office is directed to send back
the original record to the court concerned
with certificate copy of the judgement
immediately.

----------
(2023) 11 ILRA 684
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 4105 of 2022
With
Criminal Revision 2373 of 2023

Abhijeet @ Rahul ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel
for
the
Revisionist: