# Singh v. State of Jharkhand and - **Citation:** (2010) 3 ILRA 946 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2010-08-11 - **Case number:** Criminal Revision No. 3221 of 2006 - **Bench:** Shri Kant Tripathi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/singh-v-state-of-jharkhand-and-41753 - **Pages:** 4 ## Headnote rules 2004, Rule-22(5)- Determination of age -date of birth recorded in Municipal Corporation or in school register-relevant-in absence thereof medical opinion be taken into consideration by giving one year margin. Held: Para 7 Under the Rule 22 (5) of the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004, the date of birth certificate issued by a corporation or a municipal authority or school is the relevant material for determining the age of the person who claims to be a juvenile. In absence of these materials, the medical opinion which is controvertible may be taken into consideration. While considering the medical opinion, a margin of one year for determining the age may be given. Case law discussed: AIR 2005 SC 2731, (2009) 13 SCC 211, 2009 (64) ACC 754 ## Text 946 INDIAN LAW REPORTS ALLAHABAD SERIES [2010 REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 11.08.2010 BEFORE THE HON'BLE SHRI KANT TRIPATHI, J. Criminal Revision No. 3221 of 2006 Subhash and others ...Appellants Versus State of U.P. ...Opposite Party Counsel for the Petitioner: Sri Sunil Kumar Counsel for the Respondents: A.G.A. U.P. Juvenile (Care and Protection of children) rules 2004, Rule-22(5)- Determination of age -date of birth recorded in Municipal Corporation or in school register-relevant-in absence thereof medical opinion be taken into consideration by giving one year margin. Held: Para 7 Under the Rule 22 (5) of the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004, the date of birth certificate issued by a corporation or a municipal authority or school is the relevant material for determining the age of the person who claims to be a juvenile. In absence of these materials, the medical opinion which is controvertible may be taken into consideration. While considering the medical opinion, a margin of one year for determining the age may be given. Case law discussed: AIR 2005 SC 2731, (2009) 13 SCC 211, 2009 (64) ACC 754 (Delivered by Hon'ble Shri Kant Tripathi, J.) 1. Heard Sri Sunil Kumar, learned counsel for the revisionists and learned AGA for the State. 2. This is a revision against the order dated 9.5.2006 passed by Mr. S. Lal, Additional Sessions Judge, Court No.3, Bulandshahar in S.T. No. 45 of 1995 (State Vs. Natthi and others) whereby the learned Additional Sessions Judge refused to hold the revisionists Subhash, Nanda @ Nan Kishore, Harpal and Harkesh as juveniles. 3. It appears that the occurrence of this case took place on 18.6.1994 and on that date the Juvenile Justice Act, 1986 was in force, in which a male person upto the age of 16 years was considered as a juvenile. Learned Additional Sessions Judge, Bulandshahar appears to have refused to declare the revisionists as juveniles on the ground that they had already completed 18 years before the commencement of the Juvenile Justice (Care and Protection of Children) Act, 2000 and based this finding on the verdict of a Constitution Bench of the Supreme Court in the case of Pratap Singh Vs. State of Jharkhand and others AIR 2005 SC 2731. The aforesaid Act of 2000 has been materially amended in the year 2006 by the Juvenile Justice (Care and Protection of Children) (Amendment) Act 2006 and thereby an explanation was added in section 20 of the Act of 2000 which is extracted as follows: Explanation- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law in any court, the determination of juvenility of such a juvenile shall be in term of clause (l) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the 3 All] Subhash and others V. State of U.P. 947 provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed." The provisions of Act of 2000 as amended by the Amending Act of 2006 have been considered by the Apex Court in the case of Hari Ram Vs. State of Rajasthan (2009) 13 SCC 211. The Apex Court held: "The said intention of the legislature was reinforced by the amendment effected by the said amending Act to Section 20 by introduction of the proviso and the Explanation thereto, wherein also it has been clearly indicated that in any pending case in any court the determination of juvenility of such a juvenile has to be in terms of Section 2 (l) even if the juvenile ceases to be so "on or before the date of commencement of this Act" and it was also indicated that the provisions of the Act would apply as if the said provisions had been in force for all purposes and at all material times when the alleged offence was committed." 4. In view of the principles propounded in Hari Ram's case (Supra) it is crystal clear that if the revisionists were less than 18 years on the date of occurrence, though the same took place prior to the commencement of the Act 2000, they shall be treated as juveniles and their case can not be discarded on account of the fact that they had become more than 18 years on the commencement of Act of 2000. 5. The question of juvenility of the applicants is required to be decided according to the rules applicable in the matter. The Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004 have been framed, which deal with the various matters relating to the Juveniles. The Rule 22 (5) of the said rules is the relevant rule for the purposes of determining the age of the person, who claims himself as a juvenile. The learned lower Court has not considered the provisions of Rule 22 (5) of the said Rules while passing the impugned order and has overlooked the same. Rule 22 (5) of the said Rules is being reproduced 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, recorded a finding in respect of his case." 6. A similar set of rules have also been framed in the State of Jharkhand, which have been referred to in the case of Babloo Pasi V. State of Jharkhand & 948 INDIAN LAW REPORTS ALLAHABAD SERIES [2010 Anr, 2009 (64) ACC. 754. In other words, Rule 22 (5) of the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004 is pari materia with Rule 22 (5) of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003. In the case of Babloo Pasi (supra) the Apex Court has interpreted Rule 22 (5) of the Jharkhand Rules and held that in the absence of birth certificate given by a corporation or a municipal authority or date of birth certificate from the school first attended or the Matriculation or equivalent certificate, the medical opinion by a duly constituted Board subject to the margin of one year, in deserving cases shall be relevant for determining the age of the alleged juvenile but the medical opinion per-se is not a conclusive proof of the age of the person concerned and it is merely an opinion. The Apex Court further held that it would be imprudent to formulate a uniform standard for the determination of the age. True the Medical Board's opinion based on radiological examination is a useful guiding factor for determination of the age of a person but is not incontrovertible. The date of birth is to be determined on the basis of material on record and appreciation of the evidence adduced by the parties. 7. Under the Rule 22 (5) of the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004, the date of birth certificate issued by a corporation or a municipal authority or school is the relevant material for determining the age of the person who claims to be a juvenile. In absence of these materials, the medical opinion which is controvertible, may be taken into consideration. While considering the medical opinion, a margin of one year for determining the age may be given. 8. The occurrence took place on 18.6.1994. Therefore, the relevant date for determining the age of each of the revisionists is the date of the occurrence. If on that date the revisionists have not completed the age of 18 years, they will be deemed to be juveniles and in that event they have to be referred to the Juvenile Justice Board for inquiry and appropriate order. The Additional Sessions Judge has not specifically recorded any finding regarding the exact age of each of the revisionists on the date of the occurrence. The prayers of the revisionists were turned down merely on the ground that they had completed the age of 18 years on the date of the commencement of the Act of 2000. While recording this finding the learned lower court had merely assumed the age of each of the revisionists as 16 years on the date of the occurrence, which is nothing except to guess work, therefore, the same cannot be upheld. The question of juvenility needs to be decided a fresh in accordance with the aforesaid rule22(5). Therefore, the matter has to go back to the learned trial court for a fresh finding. 9. The revision is allowed and the impugned order dated 9.5.2006 is set aside and the matter is remanded to the learned Additional Sessions Judge for afresh decision in accordance with law. --------- 3 All] Deep Narain and others V. State of U.P. and another 949 REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 31.08.2010 BEFORE THE HON'BLE SHRI KANT TRIPATHI, J. Criminal Revision No. 3502 of 2010 Deep Narain and others ...Petitioner Versus State Of U.P. and another ...Respondent Counsel for the Petitioner: Sri Shashi Bhushan Counsel for the Respondent: Sri S.N. Tripathi A.G.A Criminal Revision-against Summoning order u/s 319 Cr.P.C. without specific finding-if evidence remained uncontroverted-conviction of Revisionist can be held-order not sustainable Held: Para 12 In the present case, no doubt the learned Additional Sessions Judge has passed a detailed order but he nowhere recorded any specific finding whether or not the evidence adduced in support of the application filed under section 319 CrPC, if uncontroverted, would reasonably lead to conviction of the revisionists. In absence of a finding in this perspective, the summoning order can not be upheld. Case law discussed: 2009 (66) ACC 32, 2009 (66) ACC 273, (2000) 3 SCC 262, 2004 (7) SCC 792, 2010(5) ADJ 628 (Delivered by Hon'ble Shri Kant Tripathi, J.) 1. Heard Mr. Shashi Bhushan for the revisionists, Mr. S.N. Tripathi for the respondent no.2 and the learned AGA for the respondent no.1 and perused the impugned judgment and order. 2. With the consent of the learned counsel for the parties, the instant revision is being disposed of finally at the stage of admission. 3. The instant revision has been filed against the order dated 6.8.2010 passed by the Additional Sessions Judge (Fast Track Court) Sant Kabir Nagar in S.T. No. 53 of 2009 ? State vs. Nagendra Shukla, whereby the learned Additional Sessions Judge has summoned the revisionist no.1, Deep Narain with regard to the offences under section 376/302 IPC and has summoned the remaining revisionists in regard to the offence under section 302 IPC. 4. It appears that the respondent no.2 lodged an FIR with the allegations that her daughter (deceased Km. Meena) had made an oral dying declaration before her, according to which the revisionist no.1 Deep Narain committed rape on her and after that the remaining revisionists put her on fire after sprinkling kerosene, consequently, the deceased sustained burn injuries. In the hospital, the deceased made a similar statement but the doctor did not record her statement and referred her to Gorakhpur but she died while she was on way to Gorakhpur. 5. During the trial, the statements of PW-1 Smt. Geeta Shukla, PW-2 Km. Reena Shukla and PW-3 Km. Vedika Shukla were recorded. These witnesses have supported the prosecution story stated in the FIR. Learned Additional Sessions Judge found it proper to summon the revisionists under section 319 CrPC and accordingly passed the summoning order dated 6.8.2010.