Allowed

Mustafa v. State of U.P. and Another

Allahabad HC3 May 2018CRLR/1127/2015

Case brief

AI extract

What is this about?

The court allowed a criminal revision, holding that the age of a juvenile accused in a POSCO case was incorrectly determined using a school certificate from a second school instead of the first attended school as mandated by Rule 12 of the Juvenile Justice Rules 2007, and remanded the case for fresh inquiry.

What did the court decide?

The impugned orders were set aside; the Juvenile Justice Board directed to pass order afresh after affording opportunity to both parties to produce and cross-examine evidence on the date of birth ment

Mustafa Vs State of U.P. and Another — Bail and Remand | Allahabad HC (2018)

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Court No. - 28

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Case :- CRIMINAL REVISION No. - 1127 of 2015

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Revisionist :- Mustafa Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Vinod Singh Counsel for Opposite Party :- Govt.Advocate,Nazrul Islam Jafri

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Hon'ble Umesh Chandra Tripathi,J.

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1. Heard Sri Vinod Singh, learned counsel for the revisionist, Sri Nazrul Islam Jafri, learned counsel for the opposite party no. 2 and Sri L.D. Rajbhar, learned A.G.A., for the State.

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2. This criminal revision has been preferred against the judgment and order dated 28.2.2015 passed by Additional Sessions Judge, Court No. 13, Ghaziabad in Criminal Appeal No. 156 of 2003 (Mustafa Vs. State and another) dismissing the appeal against the order dated 25.6.2013 passed by the Juvenile Justice Board, Ghaziabad in Case No. 304 of 2012 arising out of Case Crime No. 551 of 2010 under Sections 302, 201, 120-B IPC, P.S. Vijaynagar, District Ghaziabad. By the order dated 25.6.2013 passed by the Juvenile Justice Board, Ghaziabad, the opposite party no. 2 was declared juvenile.

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3 . Opposite party no. 2 (Rahat Ali) was declared juvenile on the basis of his school certificate of Shri R.D.S. Memorial Public School, Haibatpur, Shahaberi, Gautam Budh Nagar, in which date of birth of Rahat Ali was mentioned as 20.10.1994. In that school certificate, Rahat Ali was admitted in class-III on 4.7.2004 and he passed class-V there.

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4. Revisionist has not filed any school certificate of Rahat Ali before Juvenile Justice Board. In appeal, revisionist has filed leaving certificate of Rahat Ali from Prathmik Vidyalaya, Shahaberi, Gautam Budh Nagar, Gautam Budh Nagar, in which Rahat Ali was firstly admitted. In that school leaving certificate, date of birth of Rahat Ali is mentioned as 6.12.1991.

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5. Appellate Court held that date of birth of Rahat Ali shown in Prathmik Vidyalaya, Shahaberi, Gautam Budh Nagar, Gautam Budh Nagar is not supported by any

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evidence. Informant has not shown any ground on which basis, date of birth of Rahat Ali is mentioned as 6.12.1991.

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6 . Learned counsel for the revisionist contended that as per Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, the age of juvenile shall be determined on the basis of date of birth from the school first attended in absence of matriculation certificate. Learned Juvenile Justice Board and learned appellate court has ignored the statutory provision and determined the age on date of birth of Rahat Ali on the basis of school certificate of Shri R.D.S. Memorial Public School, Haibatpur, Shahaberi, Gautam Budh Nagar where he was admitted in class-III and that was not his first attended school, which is not sustainable.

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7. Learned counsel for the opposite party No. 2 and learned A.G.A., contended that there is no illegality in the orders passed by the courts below.

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8. Provision of Rule 12 (3) Juvenile Justice (Care and Protection of Children) Rules, 2007 provides as follows:-

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"(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--

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(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;

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(iii) the birth certificate given by a corporation or a municipal authority or a Panchayat,

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(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.

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and, while passing orders in such case shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the Clauses (a) (i), (ii), (iii) or in the absence whereof, Clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

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9 . From perusal of the record, it reveals that Sri Aarif Ali

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father of Rahat Ali appeared before the Juvenile Justice Board but he was not cross-examined by the counsel of the revisionist on point of date of birth of Rahat Ali mentioned in the school certificate first attended by him. Record of date of birth mentioned in the first attended school was not placed before Board. The Juvenile Justice Board as well as Appellate Court have not held that leaving certificate of Rahat Ali issued from Prathmik Vidyalaya, Shahaberi, Gautam Budh Nagar, Gautam Budh Nagar in which his date of birth is mentioned as 6.12.1991, is forged document.

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10 . Appellate Court should not consider the date of birth mentioned in the school certificate of Shri R.D.S. Memorial Public School, Haibatpur, Shahaberi, Gautam Budh Nagar, where Rahat Ali was admitted in class-III and was not school first attended by Rahat Ali.

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11 . In view of above, orders passed by the courts below is against law and as such, the same are not sustainable.

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12 . Consequently, this criminal revision stands allowed and the judgment and order dated 28.2.2015 passed by Additional Sessions Judge, Court No. 13, Ghaziabad in Criminal Appeal No. 156 of 2003 (Mustafa Vs. State and another) and the order dated 25.6.2013 passed by the Juvenile Justice Board, Ghaziabad in Case No. 304 of 2012 arising out of Case Crime No. 551 of 2010 under Sections 302, 201, 120-B IPC, P.S. Vijaynagar, District Ghaziabad are set aside.

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13 . The Juvenile Justice Board, Ghaziabad is directed to pass order afresh after affording opportunity to both the parties to adduce evidence on the point of date of birth mentioned in Prathmik Vidyalaya, Shahaberi, Gautam Budh Nagar, expeditiously.

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14 . Office is directed to send back the lower court record to the court concerned without any delay.

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Order Date :- 3.5.2018 Jaswant

Mustafa v. State of U.P. and Another

Case brief

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Mustafa v. State of U.P. and Another

Case brief

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