Dismissed

Mohd. Tayyab v. State of U.P. and Anr.

Allahabad HC9 Aug 2023CRLR/2584/2019

Case brief

AI extract

What is this about?

The High Court in Criminal Revision No. 2584 of 2019 dismissed a revision challenging a Juvenile Justice Board order declaring the accused as major. The Board relied on conflicting school records and a medical age determination report placing the accused at 20-21 years. Despite claims of procedural irregularity regarding the appellate hearing notice, the Court found no merit in the revision.

What did the court decide?

The revision challenging the Juvenile Justice Board's order declaring the accused as major is dismissed.

Mohd. Tayyab Vs State of U.P. and Anr. — Bail and Remand | Allahabad HC (2023)

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Reserved On: 19.07.2023 Delivered On: 09.08.2023 Neutral Citation No. - 2023:AHC:162386

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Court No. - 50

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Case :- CRIMINAL REVISION No. - 2584 of 2019

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Revisionist :- Mohd. Tayyab Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Rajrshi Gupta,Rizwan Ahamad Counsel for Opposite Party :- G.A.,Amir Khan

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Hon'ble Ram Manohar Narayan Mishra,J.

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Heard learned counsel for the revisionist, learned counsel for the opposite party No.2, learned AGA for the State and perused the material placed on record.

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Pleadings have been exchanged between the parties.

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Instant criminal revision has been preferred against the impugned order dated 25.8.2019, passed by Additional Session Judge, Court No.1, Bulandshahr, in Criminal Appeal No.195 of 2017 (Mohd. Tayyab Vs. State of Uttar Pradesh and Another), arising out of Case Crime No.374 of 2014, under Section 302 IPC, Police Station- Sikandrabad, District Bulandshahr and the order dated 16.11.2017, passed by Juvenile Justice Board, Bulandshahr in Case No.84 of 2015 (State vs. Tayyab), whereby the application of revisionist to declare him as juvenile with regard to above case has been rejected.

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The factual matrix of the case in brief relevant for the present revision are that the present revisionist is an accused in Case Crime No.374 of 2014, under Section 302 IPC. The FIR of present case was lodged at the instance of one Safique- the first informant. He lodged the FIR against revisionist with allegation that on 15.4.2014, at around 2:00 P.M. accused persons Mohd. Tayyab, Rashid, Abdul Salam and Shahid committed murder of his brother Mohd. Aslam causing fatal injuries to

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him by knives and escaped from the place of occurrence. The FIR was lodged on the same day at 14:50 hours i.e. after 2:50 hours of the incident at police station- Sikandrabad, District Bulandshahr. The police proceeded to investigate the case. A plea of juvenility was taken on behalf of the present revisionist, who is one of the named accused person in the case and case was referred to Juvenile Justice Board. The Juvenile Justice Board recorded the statements of the accused side as well as opposite party and gave a finding on 19.8.2014 to the effect that the applicant Tayyab was below 18 years on the date of incident i.e. 15.4.2014 and a copy of order was directed to be sent to S.O. concerned to ensure compliance of Section 19 of the Juvenile Justice (Care and Protection of Children) Act, 2000. This order was challenged by the first informant before the Court of Session in Criminal appeal No.132 of 2014 as well as by State of U.P. in Criminal Appeal No.59 of 2015 and both the appeals were decided by common judgement dated 27.6.2015 passed by Session Judge, whereby the criminal appeals were allowed and the impugned order dated 19.8.2014 passed by Juvenile Justice Board, Bulandshahr declaring the accused Tayyab juvenile, was set aside. The appellate court remanded the matter regarding plea of juvenility of opposite party Tayyab back to J.J.B., Bulandshahr to conduct further inquiry into juvenility of Tayyab, after affording opportunity of adducing evidence to both the parties and pass appropriate orders in accordance with law. The J.J.B., Bulandshahr heard the plea of juvenility raised on behalf of the accused Tayyab afresh and after considering the various documents filed by the parties far and against the plea of juvenility of the said accused and also the radiological age determination report filed by the CMO, concerned came to the conclusion that the accused Mohd. Tayyab was of 22 years of age on the date of incident vide order dated 16.11.2017. This finding and order was challenged by the present revisionist before the Court of Sessions in Criminal Appeal No.195 of 2017, which was decided by the impugned order dated 28.5.2019 by the Appellate Court, whereby the said

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criminal appeal was dismissed and impugned order passed by the learned J.J.B., Bulandshahr has been affirmed.

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Learned counsel for the revisionist submitted that the courts below have completely mislead the material placed on record while rejecting the plea of juvenility moved on behalf of the revisionist/ applicant. The finding of the courts below are based on surmises and conjunctures. The impugned orders are wholly erroneous and against the settled principles of law as well as in respect of Section 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007, which provides procedure to be followed in determination of age of a juvenile or child in conflict with law. He further submitted that as per the school leaving certificate, which has been duly proved by the Principal of school, which reveals that the date of birth of the revisionist is recorded as 20.1.1998 and said document has never been challenged and are found to be genuine as per the inquiry conducted by the J.J.B. Therefore, there was no occasion on the part of the J.J.B. As well as appellate court to have discarded this proved piece of evidence adduced in respect of age of the revisionist/applicant during the proceeding of determination of age of the revisionist. Thus date of birth i.e. 20.1.1998 claimed and proved on behalf of the revisionist establish that the revisionist was juvenile on the date of the incident. The finding of courts below are against the settled principles of law as propounded by the Hon'ble Apex Court in Ashwani Kumar Saxena vs. State of M.P., 2012 Lawsuit (SC) 607 wherein guidelines for determination of question of juvenility and the documents, which are to be seen for the purpose are elaborated. No opportunity of heairng was afforded to the revisionist at the stage of appeal, which clearly reflective from the order-sheet. The matter was proceeded for hearing on 27.5.2019 and on that application for adjournment was moved on behalf of the appellant on personal ground of counsel and on application dated 3.6.2019 was fixed as next date. However, to utter shock of the revisionist, a manipulation was found to be done in the order-sheet by making over writing on date fixed, which was

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3.6.2019 and it was overwritten as 23.5.2019 but no information of this overwriting or change of date was given to learned counsel for the appellant. However, on 23.5.2019, the matter was again directed to be fixed for 27.5.2019 and being unaware of these two dates, the counsel for the appellant could not appear. On 27.6.2019, the matter as taken without knowledge of the appellant, who is present revisionist and on 28.5.2019, impugned order was passed in absence of the revisionist. The impugned order is illegal, erroneous and perverse and was passed behind the back of the present revisionist. Therefore, the impugned orders passed by the courts below are contrary to law and deserve to be set aside and some appropriate order may kindly be passed in the matter with respect to juvenility of the revisionist.

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Learned counsel for the revisionist placed reliance on paragraph Nos.44 and 45 of the judgement of Apex Court passed in the case of Ashwani Kumar Saxena vs State Of M.P , (2012) 9 SCC 750. Relevant paragraphs of this judgement are re-produced hereinunder:-

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“44. In Shah Nawaz v. State of Uttar Pradesh and Another, (2011) 13 SCC 751 , the Court while examining the scope of Rule 12, has reiterated that medical opinion from the Medical Board should be sought only when matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended or any birth certificate issued by a Corporation or a municipal authority or a panchayat or municipal is not available. The court had held entry related to date of birth entered in the mark sheet is a valid evidence for determining the age of the accused person so also the school leaving certificate for determining the age of the appellant.

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45. We are of the view that admission register in the school in which the candidate first attended is a relevant piece of evidence of the date of birth. The reasoning that the parents could have entered a wrong date of birth in the admission register hence not a correct date of birth is equal to thinking that parents would do so in anticipation that child would commit a crime in future and, in that situation, they could successfully raise a claim of juvenility.”

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Per contra, learned AGA as well as learned counsel for the opposite party No.2 submitted that the Juvenile Justice Board wrongly declared the

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revisionist as juvenile in initial order dated 19.8.2014, in absence of Principal Magistrate. The order was passed by two members of the Board, wherein it is stated that the President (Principal Magistrate) is on leave. This order was challenged by the first informant as well as by the State of U.P. before the Court of Session and the Session Court allowed the appeals and held the impugned order as not sustainable under the law. The matter was remanded back to the Juvenile Justice Board to hear and decide the question of juvenility of the accused/applicant afresh. The board considered the question of juvenility of the applicant in the light of the documentary and oral evidence of the parties and held the applicant as major, having attained age of majority on the date of offence. The accused assailed the order of J.J.B., Bulandshahar before the Court of Session, which was affirmed by the impugned judgement of the Appellate Court. In the body of ordersheet of the appellate court dated 17.5.2019, the next date is shown as 23.5.2019, which was fixed on adjournment application moved by the applicant and he was given last opportunity. However, in margin of the order-sheet, some overwriting below the signature of first informant appeared. On 23.5.2019, the advocates were abstaining from work, first informant was present and 27.5.2019 was fixed as next date. On 27.5.2019, arguments of respondents were heard, as appellant was absent and the matter was decided on 28.5.2019. Even in absence of learned counsel for the appellant, the appellate court in judgement dated 28.5.2019 has considered the grounds of appeal as well as documents submitted in respect of plea of juvenility by the appellant.

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Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2017 provides as under:

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“12 Procedure to be followed in determination of Age.

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(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.

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(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.

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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;

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(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 Ihe juvenile in conflict with law.

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(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.

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(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

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any other documentary proof referred to in sub-rule (3) of this rule.

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(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.”

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There is some diversion between the Rules, 2017 as well as Section 94 of the Juvenile Justice (Care and Protection) Act, 2015, which was came into force on 15.1.2016, as the offence in the present case is said to have committed on 15.4.2014, the procedure for determination of age given in the Juvenile Justice (Care and Protection) Rules, 2017 will be applicable in present case. The Rule 12 provides for consideration of following evidence in respect of age determination of a child or juvenile in conflict with law:- (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; 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 the age as regards such child or the juvenile in conflict with law.

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A reliance was placed on behalf of the accused/revisionist on

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academic documents filed in support of the accused with regard to his education from Class-I to Class IIX, wherein his date of birth is mentioned as 20.1.1998 and on that basis, the revisionist claimed himself to be juvenile. Contrary to this, the informant's side placed reliance on the date of birth mentioned in Transfer Certificate of the accused regarding Class V Examination, wherein his date of birth is mentioned as 5.3.1993 and on that basis, it is contended that the revisionist-accused completed 21 years of age on the date of incident i.e. 15.4.2014. Therefore, on the one hand, the accused had claimed to be aged around 16 years on the date of incident, on the other hand informant's side has claimed that the accused had completed age of 21 years on the date of incident and he was major. Both sides have adduced their own evidence in support of their respective claims. The age determination report filed by the CMO dated 7.8.2014 reveals that the accused was around 20 to 21 years of age, based on his external appearance as well as his ossification test conducted to determine his radiological age. This medical age determination was conducted after four months of the incident.

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PW-1 Shamim Bano, the mother of the applicant/revisionist submitted on oath before the J.J.B. That her son Tayyab has studied at Class IIX and his date of birth is 20.1.1998. She has herself visited the school for getting her son Tayyab admitted in the school. The application form was filled up by the teacher. The signature of student Tayyab was not taken at the time of admission. Tayyab was 16 years and 2 months old at the time of registration of the case. She is aged around 46 years. She had nine daughters and three sons, out of which, Rashid is eldest and Tayyab is her 7th child. The learned J.J.B. has obeserved that this witness has shown her age as 46 years in Misc. Case No.84 of 2015 whereas in Misc. Case No.97 of 2014, she has stated her age as 50 years, which was recorded one year back. The date of birth of accused Mohd. Tayyab is mentioned as 5.3.1993 in T.C. Issued from Mohd. Abdul Salam Tamili School, which is placed on record as Ex.Kha-1 and in photocopy of

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passport and PAN card and photocopy of his Passport also, the date of birth of Mohd. Tayyab is recorded as 5.3.1993. During course of proceeding before J.J.B., Bulandshahr with regard to age determination of the revisionist, these documents were exhibited on behalf of the revisionist/applicant namely, application for admission as Ex.Ka-1, copy of admission register as Ex.Ka-2, copy of transfer certificate as Ex.Ka-3, copy of attendance register as Ex.Ka-4, copy of student registration and transfer certificate as Ex.Ka-5,, copy of transfer certificate as Ex.Ka-6, admission form of Saraswati Shishu Mandir Sikandrabad as Ex.Ka-7. The academic documents filed on behalf of the revisionist reveals that an application for admission in Class Ist was moved on behalf of the accused Tayyab at P.M. Adarsh Vidyalaya, Junior High School, Sikandrabad on 7.7.2005 wherein the date of birth of the revisionist is shown as 20.1.1998. Ex.Ka-5 reveals that he studied from Class VI to IIX in P.M. Adarsh Vidyalaya, Sikandrabad between 1.7.2010 to 9.7.2012. He studied from 7.7.2005 to 20.7.2010 in P.M. Adarsh Vidyalaya, Junior High School, Sikandrabad which he left on 15.7.2010, as per his copy of transfer certificate, which is Ex.Ka-6 issued from that school. APW-2 Ravindra Kumar appeared from P.M. Adarsh Vidyalaya, Junior High School, Sikandrabad and proved the academic documents regarding the date of birth of accused, which is recorded as 20.1.1998 in school records. On the other hand, the complainant has examined witness Jagat Singh as OPW-1, who has stated that he is working in M.S. Inter College, Sikandrabad and he has brought S.R. Register of that college and in S.R. Register at Serial No.28206 name of Mohd. Tayyab, son of Mohd. Salam, mother's name Smt. Shamima, who is resident of Nai Basti, Chaudari Wada, Sikandrabad has been recorded. Tayyab has taken admission in class VI on 9.4.2004 and because of non deposition of school fee, his name was struck off on 21.12.2004. He stated that the date of birth of Mohd. Tayyab is 5.3.1993 and this date of birth was recorded on the basis of T.C. Issued by first school attended by Mohd. Tayyab where he studied

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up to Class VIth. It is further deposed that Mohd. Tayyab has passed Class VIth from Mohd. Abdul Salam, Primary School, Sikandrabad and was admitted in class 6^th in M.S. Inter College, Sikandrabad. The witness further deposed that he has brought T.C. Submitted at the time of admission by Mohd. Tayyab, which has been exhibited as Ex.Kha-2 and in the said transfer certificate his date of birth is mentioned as 5.3.1993. He further deposed that student Mohd. Tayyab has submitted the form at the time of admission. The original of same has been brought to the court on which photographs of Mohd. Tayyab is affixed. The student was admitted in school on 9.7.2004. In the said admission form his date of birth is mentioned as 5.3.1993. Both Mohd. Tayyab and his father Abdul Salam have signed the admission form, which is exhibited as Ex.Kha-2. The said student passed Class VIth examination in the year 2004 and a copy of marksheet was also filed alongwith admission form. Learned court below has observed that in the present case, there is contradiction in the date of birth of juvenile in conflict of law in academic record and the same is not conclusive as per the evidence adduced by OPW-2, Income Tax Officer Ajab Singh, who has proved the date of birth of the revisionist as 5.3.1993 as recorded in his PAN Card. The juvenile in conflict in law has propounded his date of birth as 20.1.1998, but as per the evidence adduced by the complainant, the date of birth of revisionist/juvenile is 5.3.1993. Section 7 of J.J. Act, 2000 (as amended in year 2006) makes a provision of inquiry taking of evidence as may be necessary so as to determine the age of a person and to record a finding whether the person in question is juvenile or not.

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Hon'ble Apex Court in Ram Suresh Singh vs. Prabhat Singh, AIR 2009 SC 2085, held that in case the date of birth entered into the school Register has been proved, there is no reason as to why the same should not be given effect to. Even if we had to consider the medical report, it is now well known that an error of two years in determining the age is possible. In the case of Jaya Mala vs. Home Secretary,

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Government of Jammu and Kashmir & Ors., AIR 1982 SC 1297, this Court held that "However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side." An entry in a school register may not be a public document and, thus, must be proved in accordance with law, as has been held by this Court in the case of Birad Mal Singhvi vs. Anand Purohit 1988 (Supp.) SCC 604 , but, in this case the said entry has been proved.

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In present case, two different date of birth of revisionist are mentioned in the records of school claimed to be first attended by the revisionist, hence, the same cannot be considered as conclusive. Learned J.J.B. in order dated 16.11.2017 has placed reliance on age determination given by the C.M.O. concerned in his report wherein age of the accused is opined as around 20 to 21 years. Therefore, if in the light of judgement of Apex Court in Jaya Mala vs. Home Secretary, Government of Jammu and Kashmir and Others (supra), two years margin is given on either side, the age of the revisionist comes in between 19 to 23 years and on that count also, he appears to have attained age of majority on the date of incident.

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Hon'ble Apex Court in Om Prakash vs. State of Rajasthan (2012) 5 SCC 201 considered a case where question of juvenility of accused of committing rape on a minor girl was in question, and observed that Juvenile Justice Act which undoubtedly is a benevolent legislation but cannot be allowed to be availed of by an accused who has taken the plea of juvenility merely as an effort to hide his real age so as to create a doubt in the mind of the courts below who thought it appropriate to grant him the benefit of a juvenile merely by adopting the principle of benevolent legislation but missing its vital implication that although the Juvenile Justice Act by itself is a piece of benevolent legislation, the protection under the same cannot be made available to an accused who in fact is not a juvenile but seeks shelter merely by using it as a protective umbrella or statutory shield. We are under constrain to observe that this will have to

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be discouraged if the evidence and other materials on record fail to prove that the accused was a juvenile at the time of commission of the offence. Juvenile Justice Act which is certainly meant to treat a child accused with care and sensitivity offering him a chance to reform and settle into the mainstream of society, the same cannot be allowed to be used as a ploy to dupe the course of justice while conducting trial and treatment of heinous offences. This would clearly be treated as an effort to weaken the justice dispensation system and hence cannot be encouraged.

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In Parag Bhati (Juvenile) through legal representative vs. State of U.P., AIR 2016 SC 2418, Hon'ble Apex Court placed reliance on medical age determination of the accused, who claimed to be juvenile on the date of offence due to discrepancy in date of birth of the accused recorded in two difference schools and observed that 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, 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 alias Gulam Hossain vs. State of West Bengal (2012) 10 SCC 489 (three Judges Bench) , an enquiry for determination of the age of the accused is permissible which has been done in the present case.

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On the basis of foregoing discussions, I find no infirmity or illegality in the course of action adopted by the courts below while determining the age of the revisionist and there is no illegality, irregularity or perversity in the impugned orders passed by the courts below in this regard. Learned Juvenile Justice Board in impugned orders has rightly placed reliance on the medical age determination of the juvenile in view of conflicting date of births mentioned in school records of the revisionist, which are proved by the evidence of concerned school staff in respect of their claim. The revision is devoid of merits, hence, is liable to be

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dismissed.

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