# XXX(Minor)S/o Pramod Singh(Juvenile) Revisionist v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2022) 11 ILRA 969
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-02
- **Case number:** Crl. Revision No. 1069 of 2022
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/xxx-minor-s-o-pramod-singh-juvenile-revisionist-v-state-of-u-p-ors-opp-parties-47941
- **Pages:** 5

## Headnote

(A) Criminal Law - The Juvenile Justice
(Care and Protection of Children) Act,
2015 - Section 102 - Revision, Section 94 -
Presumption and determination of age -
where several records from educational
institutions
as
envisaged
in
Section
94(2)(i) are available and they show
different dates of birth - Court shall have
to depend on the document which passed
the test of credibility and admissibility
both - comparison between the two (or
more) documents on the anvil of reliability
is inevitable. (Para -9)

Case involved two different birth dates - found
in school records of two different institutions -
primary school record showed a 12.02.2002
birth date - high school certificate showed a
15.03.2003 birth date - appellate court relied on
primary
school
record
-
assuming
no
discrepancies in recording of date of birth -
court found - date of birth from previous
institution
was

basis
for
admission
in
subsequent institutions - high school record was
not worth reliance - appellate Court declared
accused a major - Instant revision. (Para -
2,10)

HELD:- Appellate court correctly relied on the
student's primary school record's date of birth,
avoiding medical examinations when a reliable
school certificate was available. (Para -11)

Revision dismissed. (E-7)

## Text

11 All. XXX(Minor)S/o Pramod Singh(Juvenile) Vs. State of U.P. & Ors.
969
throughout the country. The Apex Court
held
the
Rule
44-I
as
invalid
on
04.07.2011. It may be noted that it is not
said by the Apex Court that the dictum
shall have only prospective application and
not retrospective.

10. In my view, if "the law or
precedent" is beneficial to the accused then
unless it is prohibited, the benefit should be
given to the accused retrospectively.
Hence, in my view, this revision deserves
to be allowed on two grounds. Firstly, the
Rule 44-I which was the basis of conviction
was declared ultra-vires the rule making
powers of the government. Secondly, the
evidence was deficient on the point that the
sample in fact belonged to that category of
common salt which was exposed for direct
human consumption.

11. The revision is allowed. The
judgment and order dated 08.01.2002
passed by Additional District and Sessions
Judge, Aligarh as well as judgment and
order dated 01.05.2001 passed by 1st
Additional
Chief
Judicial
Magistrate,
Aligarh, are hereby set aside.
----------
(2022) 11 ILRA 969
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.11.2022

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Crl. Revision No. 1069 of 2022

XXX(Minor)S/o Pramod Singh(Juvenile)
 ...Revisionist
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Revisionist:
Sri Upendra Upadhyay
Counsel for the Opp. Parties:
G.A., Sri Shashi Kumar Mishra

(A) Criminal Law - The Juvenile Justice
(Care and Protection of Children) Act,
2015 - Section 102 - Revision, Section 94 -
Presumption and determination of age -
where several records from educational
institutions
as
envisaged
in
Section
94(2)(i) are available and they show
different dates of birth - Court shall have
to depend on the document which passed
the test of credibility and admissibility
both - comparison between the two (or
more) documents on the anvil of reliability
is inevitable. (Para -9)

Case involved two different birth dates - found
in school records of two different institutions -
primary school record showed a 12.02.2002
birth date - high school certificate showed a
15.03.2003 birth date - appellate court relied on
primary
school
record
-
assuming
no
discrepancies in recording of date of birth -
court found - date of birth from previous
institution
was

basis
for
admission
in
subsequent institutions - high school record was
not worth reliance - appellate Court declared
accused a major - Instant revision. (Para -
2,10)

HELD:- Appellate court correctly relied on the
student's primary school record's date of birth,
avoiding medical examinations when a reliable
school certificate was available. (Para -11)

Revision dismissed. (E-7)

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Upendra Upadhyay,
learned counsel for the revisionist and Sri
O.P. Mishra, learned AGA for the State of
U.P. None responds for the respondent no.
2.

2. This criminal revision has been
filed under Section 102 of the Juvenile
Justice Act, 2015 challenging the order
970 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 10.02.2022 passed by the Sessions
Judge, Etah in Criminal Appeal No.
44/2021 setting aside the order dated
29.09.2021 passed by the Juvenile Justice
Board, Etah in Case No. 48 of 2020 by
which the revisionist was declared juvenile.
The appellate Court allowed the appeal and
declared the accused a major.

3. Relevant facts leading to this
criminal revision, are as below.

A FIR Case Crime No. 172 of 2020
under Sections 376D, 302, 506, 452 IPC
was registered under Police Station Jalesar,
District-Etah with the allegations that the
complainant's daughter was raped by one
Anil and the juvenile; his son aged about
11 years, who was witness to the
occurrence was murdered by them by
strangulation and the victim was also
threatened not to tell anything about the
incident. Finding accused a juvenile, the
matter came before the Juvenile Justice
Board, where age determination inquiry
was conducted and he was declared aged
17 years 1 month and 22 days on the date
of the incident by an order dated
29.09.2021. Challenging the above order of
the Juvenile Justice Board, an Appeal No.
44 of 2021 was preferred by the informant.
The learned appellate Court declared the
juvenile a major and set aside the order of
the Juvenile Justice Board. At the same
time, it was ordered that the case of the
juvenile shall be sent to the Special Judge,
POCSO Act for disposal in accordance
with law. The order of the appellate Court
has been challenged on behalf of the
revisionist through his natural guardian
before this Court.

4. It is contended on behalf of the
revisionist that the date of birth as
mentioned in the high school certificate
should have been given preference over
other evidence instead the appellate Court
relied on primary school record. And that
the impugned order has been passed against
the settled principles of law and against the
provisions of Section 94 of the Juvenile
Justice Act and therefore, the impugned
order is not sustainable in law.

5. Before the Juvenile Justice Board,
the father of the juvenile as CW1-and an
official from SMS Jain Inter College,
Hathras as CW2 and Headmaster of
primary school, Bhyau as CW3 were
examined. It may be noticed that the
Juvenile Justice Board before proceeding to
decide his age, passed an order dated
06.07.2021 for constitution of a Medical
Board for medical examination of the
juvenile in the background of divergence in
his age in educational documents. The
Juvenile Justice Board noticed that in the
high school certificate, his date of birth was
shown as 15.03.2003 making him aged
about 17 years 1 month and 22 days on the
date of occurrence and the medical
examination, which was conducted after a
gap of one year, did show him between 1819 years. Reconciling both the things, the
Juvenile Justice Board concluded that his
age was about 17 years 1 month and 22
days on the date of occurrence.

6. I went through the impugned order
passed in Criminal Appeal whereby the
order of the Juvenile Justice Board was set
aside and the accused was held to be a
major. The learned appellate Court referred
to the statement of juvenile's father wherein
he stated as CW1, that his son, first studied
from Class 1st to 5th in a primary school at
Bhyau and from Class 6th to 10th in Shri
Mahveer Swami, Jain Inter College,
Jalesar. The appellate Court referred to the
oral evidence of CW2, an official from the
11 All. XXX(Minor)S/o Pramod Singh(Juvenile) Vs. State of U.P. & Ors.
971
S.M.S. Jain Inter College who mentioned
that the juvenile studied in his institution
from Class 7th to Class 12th. Contrary to
what, CW1 said , he never said that the
juvenile took admission in Class 6th. He
further stated that a transfer and conduct
certificate of G.S. Primary School, Jalesar
was produced and that no document
pertaining to his primary school, Bhyau
was ever given. Next the appellate Court
referred to the statement of CW3, the
Headmaster of primary school, Bhyau,
Etah, who stated that the juvenile studied in
his institution from Class 1st to Class 5th
and that his date of birth was 12.02.2002,
as per the school records. He deposed that
he left his studies in Class 5th and didn't
take any transfer and conduct certificate
from this school and that hiis name was
struck off owing to his continued absence.

7. After perusal of the above oral and
documentary evidence, the appellate Court was
of the opinion that the date of birth as recorded
in his primary school was correct and not the
date mentioned in his subsequent school's
records. The learned appellate Court was also of
the opinion that provisions of Section 94 do not
provide that high school certificate is to be
given primacy over other school certificates.
The appellate Court further observed that where
the school certificates were available, no
occasion for medical examination arose,
therefore, the order of the Juvenile Justice
Board was bad in law as it was based on the
medical examination of the accused and that the
Juvenile Justice Board failed to consider the
evidence of the official of the primary school,
where the juvenile first attended his studies. On
the basis of above analysis, the appeal was
allowed and his date of birth was declared as
12.02.2002 on the basis of school record of
primary school. Consequently, he was adjudged
a major on the date of the occurrence.

8. The provisions of Section 94 are as
below:

"(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."
972 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Section 94(2)(iii) shows that only
in the absence of documents, as described
in clause (i) and (ii), his age shall be
determined by the ossification test or any
other
medical
techniques.
What
is
important to note is that the above
provision nowhere says that where multiple
documentary evidence which essentially
fell in the category as described in Section
94(2)(i) of the Juvenile Justice Act are
available, one of it may be given preference
over the other. Now the pertinent
question arises- What a Court is
supposed to do where several records
from
educational
institutions
as
envisaged
in
Section
94(2)(i)
are
available and they show different dates
of birth? Of course the Court shall have to
depend on the document which passed the
test of credibility and admissibility both. In
such cases the comparison between the two
(or more) documents on the anvil of
reliability is inevitable.

10. Coming back to the facts of this
case, this is not disputed that two different
dates of birth have been found in school
records of two institutions. Date of birth is
12.02.2002 in school record where he
studied from Class 1st to Class 5th and it is
15.03.2003 in high school certificate. The
evidence oral as well as documentary , has
been reproduced verbatim in Juvenile
Justice Board's order. Perusal thereof
clearly shows glaring gaps and the learned
appellate Court has noticed those gaps and
rightly depended upon the date of birth as
shown in primary school record. In my
view, it stands to logic that the school
record of the school/educational institution
first attended, may be showing correct date
of birth unless there is some fact and
circumstances attracting attention of the
Court regarding recording of date of birth
in such papers prompting the Court to
disbelieve the same. As per established
practice in educational institutions, the date
of birth as recorded in a previous institution
forms a basis of admission in subsequent
institutions. It is a common knowledge that
whenever a student, for some reason,
leaves his previous school and applies to
take admission in some other institution, he
has to produce his school leaving certificate
or transfer and conduct certificate. In
normal course of business of school
admissions, production of a transfer and
conduct certificate is must. In this case, no
transfer and conduct certificate was ever
issued to him when he left his primary
school
and
a
transfer
and
conduct
certificate of some other school (name of
which is conspicuously missing in the oral
testimony of his father), was produced
before the school in which he took
admission in Class 7th. The details of
school where he studied in Class 6th are
missing. It was for the revisionist to explain
the missing link. Non-explanation thereof
naturally impelled the Court to give a
finding that the high school record is not
worth reliance and that some relevant
material has been deliberately withheld.

11. In my view, the learned appellate
Court made no mistake in depending upon
the date of birth mentioned in record of the
primary school first attended by the
student; and I also agree with the
observation of the appellate Court that
where a reliable school certificate was
available, there was no need to call for
medical examination of the student and
much less placing reliance on it.

12. The revision is, accordingly,
dismissed.

13. Copy of the order be certified to
the Court concerned.
11 All. Vinay Pathak Vs. State of U.P. & Ors.
973
----------
(2022) 11 ILRA 973
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.11.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.
THE HON'BLE VIVEK KUMAR SINGH, J.

Crl. Misc. Writ Petition No. 8079 of 2022

Vinay Pathak ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Lalta Prasad Misra, Nadeem Murtaza, Shubham
Tripathi

Counsel for the Respondents:
G.A.

(A) Criminal Law - The Prevention of
Corruption Act, 1988 - Sections 7 -
Offence relating to public servant being
bribed, Section 17-A - Enquiry or Inquiry
or investigation of offences relatable to
recommendations
made
or
decision
taken by public servant in discharge of
official functions or duties, Indian Penal
Code, 1860 - Section 342, 386, 409, 420,
467, 468, 471, 120-B, 504, 506 - if
registration of FIR is mandatory, arrest
of
the
accused
immediately
after
registration
of
FIR
is
not
at
all
mandatory
-
offences
under
the
Prevention of Corruption Act, 1988 as
well as charge of criminal conspiracy,
cannot be said to constitute "acts in
discharge of official duty."(Para -23, 36)

Allegations of the FIR - material/evidences
gathered during investigation - prima facie,
reveal cognizable offences - allegation regarding
extortion of money - petitioner not having any
prior criminal history - sections added after
collecting
relevant
material/evidences
-
investigation
still
in
progress.
(Para
-
3,30,32,36)

HELD:-No interference in light of dictum of the
Apex Court in re; M/s Neeharika Infrastructure
Pvt. Ltd., which states that a mere perusal of
the FIR allegations and evidence collected
during the investigation could reveal the
commission of cognizable offenses. Court's
observations should not be taken negatively or
as protection for the petitioner. Petitioner can
file legal recourse under Section 438 Cr.P.C. or
other applicable laws before the court. (Para -
38,40)

Writ Petition dismissed. (E-7)

List of Cases cited:-

1. Arnesh Kumar Vs St. of Bihar, (2014) 8 SCC
273

2. Yashwant Sinha & ors. Vs C.B.I. through its
Director & anr., (2020) 2 SCC 338

3. M/s Neeharika Infrastructure Pvt. Ltd. Vs St.
of Maha. & ors., AIR 2021 Supreme Court 1918

4. Shankara Bhat & ors. Vs St. of Kerala &
Ors., MANU/KE/2227/2021

5. Satender Kumar Antil Vs CBI & ors., Special
Leave to Appeal (Criminal) No.5191 of 2021

(Delivered by Hon'ble Rajesh Singh
Chauhan, J. & Hon'ble Vivek Kumar
Singh, J.)

1. Heard Dr. L.P. Misra, assisted by
Sri Nadeem Murtaza, learned counsel for
the petitioner, Sri Jaideep Narain Mathur,
learned Senior Advocate, assisted by Sri
S.N. Tilhari, learned counsel for the State
and
Sri
I.B.
Singh,
learned
Senior
Advocate, assisted by Ms. Ashmita Singh,
learned counsel for the complainant/
opposite party no.5.

2. By means of this petition, the
petitioner has prayed following main
reliefs:-