# Vishal Singh @ Pitarsan @ Vishal Kumar Singh Revisionist v. State of U.P. & Anr

- **Citation:** (2022) 7 ILRA 825
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-15
- **Case number:** Criminal Revision No. 614 of 2021
- **Bench:** Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishal-singh-pitarsan-vishal-kumar-singh-revisionist-v-state-of-u-p-anr-48851
- **Pages:** 20

## Headnote

Children) Act, 2015 - Section 9 & 94 -
Presumption and determination of age -
Juvenile Justice (Care and Protection of
Children) Rules, 2007 - by virtue of S. 9 of
Act of 2015, Court, before whom the
matter is pending & the claim of juvenility
is raised by an accused, then such Court
is competent to make an enquiry, take
such evidence as may be necessary
excluding an affidavit and thereafter
record a finding stating the age of person
as nearly as may be - For making a claim
with regard to juvenility the claimant
must produce some material which may
prima facie satisfy the court that an
inquiry into the claim of juvenility is
necessary - Initial burden has to be
discharged by the person who claims
juvenility - As to what materials would
prima facie satisfy the court cannot be
catalogued - documents mentioned in
Sub-section (2) of Section 94 of JJ Act,
2015, shall be sufficient for prima facie
satisfaction of the Court (Para 33, 51)

Incident occurred on 4.11.2017, a prompt F.I.R.
lodged, revisionist named as accused - chargesheet against accused submitted - Magistrate
took cognizance - matter pending in the court -
revisionist filed an application u/s 9 Juvenile
Justice (Care and Protection of Children) Act,
2015 to be declared a Juvenile on the date of
occurrence i.e. 4.11.2017 - on the ground that
date of birth recorded in the certificatecummark-sheet
issued
by
U.P.
Board
is
17.12.2000, as such, revisionist was aged about
17 years 8 months and 16 days on the date of
occurrence - on the other hand first informant
stated that the Revisionist date of birth recorded
in the mark-sheet, is 9.1.199, as such, on the
date of occurrence revisionist was aged about
18 years 10 months and 3 days - Trial court
held that since it was revisionist who was
claiming juvenility the burden to prove and
establish the same was upon revisionist himself
and revisionist having failed to do so, Court
below rejected the application filed by revisionist
claiming juvenility - Criminal Revision filed
826 INDIAN LAW REPORTS ALLAHABAD SERIES
before High Court - Held - Revisionist failed to
discharge the initial burden - claim of revisionist
does not appear to be bona fide either -
revision dismissed.

Dismissed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,914 of 67,642. This is a partial read: ask again with offset=39914 for what follows._

7 All. Vishal Singh @ Pitarsan @ Vishal Kumar Singh Vs. State of U.P. & Anr.
825
whether it would be in public interest to
allow the withdrawal from prosecution.
When the complainant himself is not
supporting the prosecution case, this Court
is of the view that there is no chance of
conviction of the accused in the case. The
case has been remained pending since 2007
and continuance of trial would be nothing
but a futile exercise and Court's precious
time would get wasted for futile exercise, if
the
application
for
withdrawal
from
prosecution is not allowed.

25. Considering the stand of the
complainant, this Court is of the view that
withdrawal from prosecution would be in
the interest of justice. It would be
appropriate to allow the application for
withdrawal from prosecution. In view
thereof, this Court finds that view taken by
the learned Special Judge does not appear
to be correct view. The revision is allowed.
Impugned order dated 14.10.2020 passed
by learned Special Judge/M.P./M.L.A./ VIAdditional Sessions Judge, Raebareli is
hereby set aside. The application for
withdrawal
from
prosecution
is
also
allowed.
----------
(2022)07ILR A825
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.07.2022

BEFORE

THE HON'BLE RAJEEV MISRA, J.

Criminal Revision No. 614 of 2021

Vishal Singh @ Pitarsan @ Vishal Kumar
Singh ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Kirtikar Pandey
Counsel for the Opposite Parties:
G.A.

Juvenile Justice (Care and Protection of
Children) Act, 2015 - Section 9 & 94 -
Presumption and determination of age -
Juvenile Justice (Care and Protection of
Children) Rules, 2007 - by virtue of S. 9 of
Act of 2015, Court, before whom the
matter is pending & the claim of juvenility
is raised by an accused, then such Court
is competent to make an enquiry, take
such evidence as may be necessary
excluding an affidavit and thereafter
record a finding stating the age of person
as nearly as may be - For making a claim
with regard to juvenility the claimant
must produce some material which may
prima facie satisfy the court that an
inquiry into the claim of juvenility is
necessary - Initial burden has to be
discharged by the person who claims
juvenility - As to what materials would
prima facie satisfy the court cannot be
catalogued - documents mentioned in
Sub-section (2) of Section 94 of JJ Act,
2015, shall be sufficient for prima facie
satisfaction of the Court (Para 33, 51)

Incident occurred on 4.11.2017, a prompt F.I.R.
lodged, revisionist named as accused - chargesheet against accused submitted - Magistrate
took cognizance - matter pending in the court -
revisionist filed an application u/s 9 Juvenile
Justice (Care and Protection of Children) Act,
2015 to be declared a Juvenile on the date of
occurrence i.e. 4.11.2017 - on the ground that
date of birth recorded in the certificatecummark-sheet
issued
by
U.P.
Board
is
17.12.2000, as such, revisionist was aged about
17 years 8 months and 16 days on the date of
occurrence - on the other hand first informant
stated that the Revisionist date of birth recorded
in the mark-sheet, is 9.1.199, as such, on the
date of occurrence revisionist was aged about
18 years 10 months and 3 days - Trial court
held that since it was revisionist who was
claiming juvenility the burden to prove and
establish the same was upon revisionist himself
and revisionist having failed to do so, Court
below rejected the application filed by revisionist
claiming juvenility - Criminal Revision filed
826 INDIAN LAW REPORTS ALLAHABAD SERIES
before High Court - Held - Revisionist failed to
discharge the initial burden - claim of revisionist
does not appear to be bona fide either -
revision dismissed.

Dismissed. (E-5)

List of Cases cited:

1. Sanjeev Kumar Gupta Vs St. of U.P. & anr.,
(2019) 12 SCC 370

2. Ashwani Kumar Saxena Vs St. of M.P. (2012)
9 SCC 750

3. Abuzar Hossain @ Ghulam Hossasin Vs St. of
W.B. (2012) 10 SCC 489

4. Prag Bhati Vs St. of U.P. (2016) 12 SCC 744

5. Babloo Pasi Vs St. of Jharkhand & anr., 2008
(13) SCC 133

6. Birad Mal Singhvi Vs Anand Purohit, AIR 1988
SC 1796

7. Manoj @ Monu @ Vishal Chaudhary Vs St. of
Har. & anr., 2022 SCC Online SC 185

8. Rishipal Singh Solanki Vs St. of U.P. & ors.,
2021 SCC Online SC 1079

(Delivered by Hon'ble Rajeev Misra, J.)

1. Heard Mr. Kirtikar pandey, learned
counsel for revisionist and learned A.G.A.
for State.

2. Perused the record.

3. This criminal revision has been
filed challenging judgement and order
dated 27.1.2021, passed by Additional
Sessions Judge/F.T.C II, Ballia, in Misc.
Application Criminal No. Nil of 2019,
dated
29.3.2019
(Paper
No.3
Kha),
whereby aforesaid application filed by
accused Vishal Sigh @ Pitarsan @ Vishal
Kumar Singh, claiming therein that he be
declared juvenile on the date of occurrence
i.e. 4.11.2017 has been rejected.

4. Present Criminal Revision came up
for admission on 19.3.2021 and this Court
passed the following order:

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

The
present
revision
under
Section 397/401 Cr.P.C. has been preferred
by the revisionist against the order dated
27.1.2021, passed by A.S.J./F.T.C.-II, Ballia,
in S.T. No. 54 of 2018 (State vs. Vishal)
arising out of Case Crime No. 745 of 2017
under sections 147, 148, 149, 323, 504, 506,
304 IPC, Police Station Dokati, District
Ballia whereby the application of the
revisionist declaring himself to be juvenile,
has been rejected.

The submission of counsel for the
revisionist
is
that
the
procedure
as
prescribed under section 94 of the Juvenile
Justice (Care and Protection of Children)
Act, 2015 has not been followed. He further
argues that there is nothing on record to
demonstrate
that
the
matriculation
certificate filed by the revisionist is forged
one, in the alternative, even if the Court
came to the said conclusion, the subsequent
procedure as prescribed under section 94
should have been resorted which have not
been done. Thus, the order suffers from
material irregularity.

Matter requires consideration.

Issue notice to the opposite party
no. 2 returnable at an early date.

Steps be taken to serve the
opposite party no. 2 within two weeks.

The opposite party no. 2 shall file
counter
affidavit
within
four
weeks.
Rejoinder affidavit may be filed within two
weeks thereafter.

Put up this matter as fresh on
28.4.2021.
7 All. Vishal Singh @ Pitarsan @ Vishal Kumar Singh Vs. State of U.P. & Anr.
827

Till the next date of listing,
further proceedings in S.T. No. 54 of 2018
(State vs. Vishal) arising out of Case
Crime No. 745 of 2017 under sections 147,
148, 149, 323, 504, 506, 304 IPC, Police
Station Dokati, District Ballia shall
remain stayed as against the revisionist
only. "

5. Pursuant to above order dated
19.3.2021, office has submitted a report
dated 16.6.2021, stating therein that as per
report received from C.J.M, Ballia notice
has been served upon opposite party-2,
personally.

6. However, inspite of service of
notice, no one has put in appearance on
behalf of opposite party-2. Learned A.G.A.
has filed a counter affidavit to which a
rejoinder affidavit has also been filed by
revisionist.

7. Counsel for the parties agreed that
instant revision be decided finally at the
stage of admission without calling for the
record. Accordingly, with the consent of
counsel for the parties and as provided
under Rules of the Court, present criminal
revision was heard and is now being
disposed of finally at the admission stage,
itself.

8. Record shows that in respect of an
incident which is alleged to have occurred
on 4.11.2017, a prompt F.I.R. dated
4.11.2017
was
lodged
by
first
informant/opposite party-2 Surya Dev
Pandey and was registered as Case Crime
No. 0745 of 2017 under sections 147, 148,
149, 324, 308, 323, 504, 506 IPC and
section 7 Criminal Law Amendment Act,
P.S. Dokati, District Ballia. In the aforesaid
F.I.R, 12 persons namely, Vishal Singh @
Pitarsan, Vishal Singh @ Bua, Sonu Singh,
Pawan Singh, Krishna Singh, Bhola Singh,
Chandan Singh, Monu, Chotu, Ajeet Singh,
Shivjogit Singh, Dharmendra Singh have
been nominated as named accused.

9.

Investigating
Officer
upon
completion of investigation of concerned
case crime number submitted the chargesheet against accused including applicant.
Concerned Magistrate took cognizance
upon same. As offence complained of is
triable by Court of Sessions, concerned
Magistrate committed the case to the Court
of Sessions. Resultantly, S.T. No. 54 of
2018 (State vs. Vishal), arising out of Case
Crime No. 0745 of 2017, under sections
147, 148, 149, 324, 308, 323, 504, 506 IPC
and section 7 Criminal Law Amendment
Act, P.S. Dokati, District Ballia came to be
registered, and now pending in the court of
Additional Sessions Judge/F.T.C. II, Ballia.

10. Subsequently, revisionist filed an
application dated 29.3.2019 (paper no. 3kha) before Court below in terms of
Section 9 Juvenile Justice (Care and
Protection of Children) Act, 2015 (herein
after referred to as act, 2015) praying
therein that revisionist be declared a
Juvenile as he was below 18 years of age
on the date of occurrence i.e. 4.11.2017.

11. Aforesaid application was filed by
revisionist on the ground that revisionist
has passed his High School Examination,
conducted by U.P. Board of High School
and Intermediate Education from Kesari
Balika Higher Secondary School, Shobha
Chapra, District-Ballia in the year 2014.
The date of birth of revisionist recorded in
the certificate-cum-mark-sheet issued on
30.5.2014 by U.P. Board of High School
and Intermediate Education in respect of
aforesaid
examination
undertaken
by
revisionist
is
17.12.2000.
As
such,
828 INDIAN LAW REPORTS ALLAHABAD SERIES
revisionist was aged about 17 years 8
months and 16 days on the date of
occurrence, which is 4.11.2017.

12. Claim of juvenility raised by
revisionist
was
opposed
by
prosecution/first informant-opposite party2. According to first informant-opposite
party-2, revisionist was major on the date
of occurrence i.e. 4.11.2017 as he was more
than 18 years of age. Revisionist has passed
his High School Examination conducted by
U.P.
Board
of
High
School
and
Intermediate Education in the year 2016
with Roll No. 2312942. The date of birth of
revisionist recorded in the mark-sheet,
pertaining to above noted examination is
9.1.1999. As such, on the date of
occurrence which is 4.11.2017 revisionist
was aged about 18 years 10 months and 3
days.

13. In view of above noted two
certificates/marksheets
of
revisionist,
regarding his High School Examination
before Court below, the Additional Sessions
Judge/F.T.C. II, Ballia passed an order
dated 22.9.2020, which reads as under:

"1. To declare this accused
Vishal Singh alias Peterson this present
application has been filed on his behalf
but without assigning any particular
provision of the Juvenile Justice Act, 2000
or Juvenile Justice Act, 2015.

2. This Court has heard the
submissions of both the rival sides on this
application. As it appeared from the case
file that during the proceeding of this
particular
application
my
learned
Predecessor has conducted almost the
entire proceeding. This Court is not in
position to hold that either it was right or
wrong but considering the law laid down
in Ashwani Kumar Saxena Vs. State of
Madhya Pradesh (2012) 9 SCC 750, in
which it has been emphatically instructed
to the Subordinate Courts to conduct
inquiry regarding the determination of
age of the person claiming minor and has
said in a very strong words that in the
process of such inquiry the process of trial
by
recording
the
testimonies
of
applicant/witness(s) etc., is prohibited.
More or less very similar approach has
been shown by the three Judges Bench of
Hon'ble
Supreme
Court
in
Abuzar
Hossain alias Ghulam Hossain Vs. State
of Bengal (2012) 10 SCC 489 and also in
Prag Bhati Vs. State of U.P. (2016) 12
SCC 744 the Hon'ble Supreme Court has
held in similar manner. However, while
deciding this aforesaid two cases the
Hon'ble Supreme Court has held that
there should be no strict pattern or
manner to conduct inquiry to determine
the age of a person claiming minor and in
a very recent judgment in Criminal Appeal
No. 108/19 Sanjeev Kumar Gupta Vs.
State of U.P. and another the Hon'ble
Supreme Court has again dealt with this
aspect in a very detailed manner and has
time and again referred the Ashwani
Kumar Saxena case(supra).

3. Considering the above in a
situation as it appears from the records
that the entire focus of this Court presided
over my learned Predecessor was to
extract
truth
circumfenced
with
a
particular certificate claiming as of
matriculation by calling witnesses and for
recording their evidence in respect of the
said certificate. Keeping in mind the
guiding light transmitted by the Hon'ble
Supreme
Court
in Ashwani
Kumar
Saxena case, this Court is not ready to go
along with the process opted by his
learned predecessor. This is on record that
the matriculation certificate filed by the
applicant is very aggressively opposed by
7 All. Vishal Singh @ Pitarsan @ Vishal Kumar Singh Vs. State of U.P. & Anr.
829
the prosecution accompanied with victim's
Advocate
and
the
prosecution
has
vehemently raised question over the
veracity of this certificate. Although the
prosecution has filed a photocopy of a
certificate of a person named as Peterson
Ram and has claimed that this is very
same person as of the accused claiming
his name as Vishal Kumar Singh alias
Peterson here this is very pertinent to note
that everywhere in the case record Vishal
Singh alias Peterson has been mentioned
and nowhere in the record Vishal Kumar
Singh alias Peterson noted and this is very
well settled in Criminal Jurisprudence
System name of the accused has utmost
important value and even difference of
one word in the name of the accused can
create a very big difference as well as
consequence. However, this Court has no
intention to give place the photocopy of
the alleged certificate of a person namely
Peterson Ram on the record to consider
further but this is also truth this has
already created serious doubt in the mind
of this Court regarding veracity of the
alleged matriculation certificate which
was allegedly produced for establishing
the accused as minor.

4. In aforesaid all the referred
cases as well as in the Juvenile Justice Act,
2000(S.94)
for
determining
the
aged
matriculation certificate has been given
priority over other alternatives. 5. It has been
held in Ashwani Kumar Saxena case(Supra)
by the Hon'ble Supreme Court that in case
the Court finds any such fabrication or has
any sort of suspect over/in the matriculation
certificate the Court may very much conduct
an inquiry in this regard but scope of the
inquiry as well as manner of the inquiry has
not been given anywhere regarding checking
the veracity of such certificate.

6. On the aforesaid analysis this
Court keeps pending the application filed
for declaration of the accused Juvenile
pending and meanwhile this Court deems
it fit to provide both the rival copies of the
matriculation certificate as one in the
name of Vishal Kumar Singh alias
Peterson and other in the name of Vishal
Ram alias Peterson for their verification
and in this regard the SHO of the
concerned Police Station i.e. Police
Station Dokati, Ballia is directed to submit
the report within a week. Further, this
Court directs the Director U.P. Secondary
Board, Lucknow to provide the records on
that basis age of this alleged Vishal
Kumar
Singh
was
noted
in
the
matriculation certificate as well as other
ancillary papers to show this particular
person has appeared in the matriculation
examination on that stipulated date
conducted by the U.P. Secondary Board,
Lucknow within a week to this Court.

Ordered accordingly.

Notice
be
issued
for
the
aforesaid purposes to the S.H.O. of the
Police Station Dokati, Ballia related with
this Sessions Trial No. 54/2018 (Case
Crime No. 745/2017) and to the Director,
U.P. Secondary Board, Lucknow."

14. Pursuant to above order dated
22.9.2020,
no
information/report
was
submitted by U.P. Secondary Education
Board Lucknow, regarding the sanctity or
genuineness of aforementioned certificatescum-marksheet pertaining to the High School
examinations undertaken by revisionist.
However, two Police reports (other than a
report contemplated under section 173 (2)
Cr.P.C.) were submitted by Police of
concerned Police Station. The first report was
submitted on 15.10.2020, whereas the second
report was submitted on 28.12.2020. In both
the reports, it was reiterated that the date of
birth of revisionist as mentioned in the High
School
Certificate
is
17.2.2000.
No
830 INDIAN LAW REPORTS ALLAHABAD SERIES
conclusion was drawn by the Police
regarding the authenticity/genuineness of the
two certificates-cum-mark sheets of High
School Examination undertaken by the
revisionist in the year 2014 and 2016
respectively or on the date of birth of
revisionist recorded therein.

15. In the light of above, Court below
itself proceeded to hold an enquiry / to
adjudicate the claim of juvenility raised by
revisionist.

16. On behalf of revisionist, reliance
was placed upon three documents i.e. letter
dated 5.4.2020, of Principal, Keshri Balika
Intermediate College Shobha Chapra, Ballia
(Ext.Ka-1), photo copy of Sarniyan Panjika
(Table Register), page no.0887368, verified
by Principal, Kesari Balika Intermediate
College, Sobha Chapra (Ext. Ka-2) and photo
copy
of
Chhatra
Patrawali
Tatha
Asttanantaran Praman Patra (Scholar
Register & Transfer Certificate), Register
No. 26384 verified by Principal (Ext. Ka-3).
Apart from above mentioned documentary
evidence, revisionist also adduced oral
evidence by producing A.P.W.1 Arjun Yadav
(Record Keeper of Kesari Balika Higher
Secondary School, Shobha Chapra, District-
Ballia) and A.P.W.2 Rita Devi (mother of
revisionist).

17. In the light of above, as well as
the two Police reports, Court below
proceeded to evaluate the claim of
juvenility raised by revisionist. Court
below disbelieved the Police reports
submitted by Police of Police Station
Dokati, District Ballia as according to court
below the two reports dated 15.10.2020 and
28.12.2020 are contradictory to each other.
It shall be apt to reproduce the observations
made by Court below itself in this regard,
which is contained in the penultimate part
of paragraph 18, and reads as under:

the
concerned
police
has
brazenly taken two stances in their two
reports that in report dated 15.10.2020 the
police speaks that it talked with the said
Naveen Singh on telephone whereas in
report dated 28.12.2020 the police says
that Naveen Singh's old number is
running switched off.

18. A.P.W.1 Arjun Yadav was
disbelieved by Court below by observing as
under:

" hence this person can only
prove the fact of presence of such records
in the school but cannot prove the
contents therein noted in the documents
which he brought before the Court"

19. A.P.W.2 Rita Devi, mother of
revisionist was also disbelieved by Court
below
vide
following
observations
contained in paragraph 16 of the impugned
order:

"From the aforesaid testimonies
of this APW2, mother of the applicant this
only can be drawn out that this witness,
however she was mother of the applicant
was not able to tell the exact date of birth
of her son because at the one hand she
deposed that the applicant's date of birth
was11 17.2.2000 but on the other hand she
has admitted that she was an illiterate and
she had memorized the age of (not the
date of birth) the applicant through Pandit
Ji. "

20.

Having
recorded
aforesaid
findings coupled with the fact that since it
was revisionist who was claiming juvenility
7 All. Vishal Singh @ Pitarsan @ Vishal Kumar Singh Vs. State of U.P. & Anr.
831
the burden to prove and establish the same
was upon revisionist himself and revisionist
having failed to do so, Court below by
means of impugned judgement and order
dated 27.1.2021 rejected the application
(paper no.3ka) filed by revisionist claiming
juvenility.

21. Thus feeling aggrieved by above
judgement and order, revisionist has now
approached this Court by means of present
criminal revision.

22. Mr. Kirtikar Pandey, learned
counsel for revisionist in challenge to the
impugned order dated 27.1.2021 submits
that order impugned in present criminal
revision is manifestly illegal and without
jurisdiction.
He
then
submits
that
juvenility of an accused has to be decided
as per section 94 of Juvenile Justice (Care
and Protection of Children) Act, 2015.
Aforesaid section is procedural in nature
and contains four sub-sections i.e. a,b,c,d
which are preferential in nature. In case
the first preference is not available, the
Court can rely upon second preference and
so on as the case may be. In the present
case, revisionist has passed his High
School Examination in the year 2014 and
his date of birth recorded therein is
17.12.2000. The occurrence in question
occurred on 4.11.2017. As such, applicant
was aged about 17 years 8 months and 16
days on the date of alleged occurrence and
therefore a juvenile. There is nothing on
record to show that the certificate/marksheet of the High School Examination
undertaken by revisionist in the year 2014
is forged or fictious. As such, Court below
has erred in law in not relying upon the
same. Case of revisionist is squarely
covered under section 94(1) of the
Juvenile Justice (Care and Protection of
Children) Act, 2015.

23. It is also contended that claim of
juvenility raised by revisionist was disputed
by
prosecution/first
informant-opposite
party-2.
Reliance
was
placed
upon
certificate/mark-sheet
of
High
School
Examination of revisionist alleged to have
been undertaken by revisionist in the year
2016 with Roll NO. 2312942 wherein name
of revisionist was shown as Peterson Ram
S/o Manoj Ram and the name of mother
has been shown as Rita Devi and the date
of birth of revisionist recorded therein is
1.1.1999. Except for this document, no
other evidence was adduced by first
informant-opposite party-2 to dispute the
claim of juvenility raised by revisionist.

24. In the aforesaid circumstance,
burden was upon first informant/opposite
party-2 to establish the fact that date of
birth of revisionist is 1.1.1999. Once
revisionist had already passed his High
School Examination in the year 2014,
wherein his date of birth was recorded as
17.12.2000, there was no occassion before
revisionist to retake the High School
Examination showing his date of birth as
1.1.1999 which admittedly is to his
disadvantage. In view of aforesaid facts and
circumstance, court below ought to have
accepted the claim of juvenility raised by
revisionist. Even otherwise, Court below
has disbelieved A.P.W.1 Arjun Yadav and
A.P.W.2 Ritu Devi on wholly trivial
grounds. As such, order impugned in
present criminal revision is liable to be setaside by this Court, and the application
dated 29.3.2019 (Paper No. 3 Kha) filed by
revisionist for declaring him a juvenile on
the date of occurrence is liable to be
allowed.

25. Per contra, the learned A.G.A. has
opposed this revision. He submits that
impugned order passed by Court below is
832 INDIAN LAW REPORTS ALLAHABAD SERIES
perfectly just and legal. Findings recorded
by Court below are definite and cogent
findings. Same cannot be classified as
illegal, perverse or erroneous. As such,
same are not liable to be interfered with by
this Court. Court below has exercised its
jurisdiction with due diligence and not in
casual and caviliar manner. Once two
contradictory High School Certificatescum-mark-sheets
of
revisionist
were
brought on record, court below rightly
passed the order dated 22.9.2020, whereby
the Police of Police Station-Dokati was
directed to conduct an enquiry in the matter
and further directions were issued to U.P.
Secondary Education Board to submit a
report regarding above. However, no report
was
submitted
by
U.P.
Secondary
Education
Board
in
respect
of
certificate/marksheet
of
High
School
Examination undertaken by revisionist in
the years 2014 and 2016, respectively. The
Police reports submitted on 15.10.2020 and
28.12.2020 by Police of Police Station
Dokati were rightly disbelieved as no
attempt was made to verify the genuineness
of the two certificate-cum-marksheet of
High School examination undertaken by
revisionist in the year 2014 and 2016
respectively or the date of birth of
revisionist.

26. As such, exercise undertaken by
Court below to adjudicate upon the claim
of juvenility of revisionist is perfectly just
and legal. Since revisionist was major on
the date of occurrence, as such, no
indulgence be granted by this Court in
favour of revisionist.

27. Before proceeding to evaluate the
rival submissions urged on behalf of the
parties, it would be appropriate to refer the
relevant provisions of Juvenile Justice
(Care and Protection of Children) Act,
2015, as well as Juvenile Justice (Care and
Protection of Children) Rules, 2007.

28. Section 9 of Act 2015 provides for
the procedure to be followed by a
Magistrate who has not been empowered
under this act. Same reads as under:

9. Procedure to be followed by a
Magistrate who has not been empowered
under this Act.-

(1) When a Magistrate, not
empowered to exercise the powers of the
Board under this Act is of the opinion that
the person alleged to have committed the
offence and brought before him is a child,
he shall, without any delay, record such
opinion and forward the child immediately
along with the record of such proceedings
to the Board having jurisdiction.

(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:

(3) 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
7 All. Vishal Singh @ Pitarsan @ Vishal Kumar Singh Vs. State of U.P. & Anr.
833
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.

(4) In case a person under this
section is required to be kept in protective
custody, while the person's claim of being
a child is being inquired into, such person
may be placed, in the intervening period
in a place of safety.

29. Section 94 of Act, 2015 provides
for the procedure for determining the age of
a Juvenile. Same is extracted herein under:

"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:

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.

30. Rule 12 of the 2007 Rules
provides the procedure to be followed in
determining the age of a child in conflict
with law. For ready reference same is
reproduced herein under:

"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.
834 INDIAN LAW REPORTS ALLAHABAD SERIES

(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 he
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 subrule (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."

31. What shall be the procedure to be
followed by Court upon an application filed
by an accused claiming himself to be a
juvenile came up for consideration in
Sanjeev Kumar Gupta Vs. State of U.P.
and another, (2019) 12 SCC 370. The
Court observed as follows in paragraph 11:

" 11. Upon a claim being raised
that an accused was a juvenile on the date
of the commission of the offence, the court
is required to make an enquiry, take
evidence and to determine the age of the
person. The court has to record a finding
whether the person is a juvenile or a child,
stating the age as nearly as may be. Rule
12(3) of the 2007 Rules contains a
7 All. Vishal Singh @ Pitarsan @ Vishal Kumar Singh Vs. State of U.P. & Anr.
835
procedural
provision
governing
the
determination of age by the court or by the
Board. Rule 12(3) stipulates thus:

32. The issue whether an enquiry can
be conducted by the Court for declaring the
age of an accused as well as the nature of
such enquiry came up for consideration in
Ashwani Kumar Saxena Vs. State of
Madhya Pradesh (2012) 9 SCC 750.
Following was observed by the Court in
paragraphs 32 and 34:

"32.
"Age
determination
inquiry" contemplated under Section 7-A
of the Act read with 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 needs to
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 needs to
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
abovementioned
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.

34. Age determination inquiry
contemplated under the JJ Act and the
2007 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, Juvenile Justice
Board or a committee functioning under
the JJ 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
Juvenile
Justice
Board
or
the
committee need to go for medical report
for age determination."

33. Subsequently, a three judges
Bench in Abuzar Hossain @ Ghulam
Hossasin Vs. State of West Bengal (2012)
10 SCC 489 also considered the aforesaid
issue
and
concluded
as
follows
in
paragraphs 39 and 48:

" 39. Now, we summarise the
position which is as under:

39.1. A claim of juvenility may
be raised at any stage even after the final
disposal of the case. It may be raised for
the first time before this Court as well
after the 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 the
appeal court.

39.2. For making a claim with
regard to juvenility after conviction, the
claimant must produce some material
836 INDIAN LAW REPORTS ALLAHABAD SERIES
which may prima facie satisfy the court
that an inquiry into the claim of juvenility
is necessary. Initial burden has to be
discharged by the person who claims
juvenility.

39.3. 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
Rules 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 Sheikh [(2009) 7 SCC
415 : (2009) 3 SCC (Cri) 431] and Pawan
[(2009) 15 SCC 259 : (2010) 2 SCC (Cri)
522] these documents were not found
prima facie credible while in Jitendra Singh
[(2010) 13 SCC 523 : (2011) 1 SCC (Cri) 857]
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 7-A
and order an enquiry for determination of the
age of the delinquent.

39.4. 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 the age of
the delinquent.

39.5. 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 the 2000 Act are not defeated
by the hypertechnical approach and the
persons who are entitled to get benefits of
the 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.

39.6. 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 the threshold
whenever raised.

34. Aforesaid judgements came to be
considered in Prag Bhati Vs.