Hon'ble S.C. Agarwal, J. - (1.) HEARD Sri S.P.S. Raghav, senior advocate assisted by Sri Anil Raghav, learned counsel for the petitioner, learned A.G.A. for the State and perused the material available on record.
(2.) THIS writ petition is preferred with a prayer to quash the order dated 4.8.2010 passed by Addl. Sessions Judge, Court No. 1, Bulandshahar in revision No. 201 of 2010 and order dated 20.5.2010 passed by Chief Judicial Magistrate, Bulandshahar. The petitioner Shekhar Sharma is an accused in case crime No. 161 of 2010 under Sections 384, 302, 504 and 506, IPC, Police Station Khurja City, District Bulandshshar. On 14.4.2010, the petitioner moved an application before Chief Judicial Magistrate, Bulandshahar under Section 7 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 'Act') for declaring him juvenile in conflict with law on the ground that his date of birth was 2nd May, 1992 and the copies of marks-sheet and certificate of Secondary School Examination, 2007 issued by Central Board of Secondary Education, New Delhi (hereinafter referred to as the 'Board') were annexed. It was prayed that he be declared juvenile and his case be separated and be forwarded to Juvenile Justice Board, Meerut. Learned Magistrate rejected the application by order dated 20.5.2010 on the ground that on medical examination, the age of the petitioner was found to be about 20 years. The accused was directed to file transfer certificate of Primary School, which also contains the date of birth to be 2.5.1992. The Principal of Primary School was summoned, but on his behalf one Ashwani Gupta, Clerk was produced, who stated that S.R. Register has been misplaced. On the basis of medical examination report, learned Magistrate found that the petitioner was not a juvenile and consequently rejected the application. The order passed by Chief Judicial Magistrate was challenged before Additional Sessions Judge, Court No. 1, Bulandshahar by way of criminal revision No. 201 of 2010. Learned Sessions Judge rejected the revision on the ground that the date of birth recorded in the primary school was not worth reliance, original S.R. Register was not available and was misplaced and the secondary school certificate and marks- sheet have not been proved and, therefore, on the basis of medical evidence, the accused could not be said to be juvenile. Both these orders have been challenged in this writ petition. Learned counsel for the petitioner submitted that the Courts below placed undue reliance on the fact that s.r. Register has been misplaced, but the statement of the clerk of the primary school reveals that date of birth of the petitioner was 2.5.1992, which should not have been disbelieved. Moreover, the petitioner had filed the copies of marks-sheet and certificate of Secondary School Examination conducted by the Board, which were rejected by learned Sessions Judge on the ground that these copies have been filed along with the affidavit of father of the petitioner and were not admissible. The submission of learned counsel for the petitioner is that if the Magistrate had any doubt about the genuineness of the marks-sheet and certificate issued by the Board, he should have summoned the records from the Board. Moreover, if the Magistrate was not satisfied with the affidavit of the father of the petitioner, father of the petitioner could have been examined as a witness. The contention is that proper opportunity for adducing evidence in support of his juvenility was not provided and despite evidence regarding date of birth of the accused on the basis of secondary school certificate, it was deliberately ignored and reliance was placed on the medical examination report.
(3.) LEARNED A.G.A. supported the impugned orders. Section 7 A of the Act provides as under: "7A. Procedure to be followed when claim of juvenility is raised before any Court.(1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any Court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the Court finds a person to be a juvenile on the date "of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a Court shall be deemed to have no effect." It is thus clear that when the application under Section 7A of the Act was moved before the Chief Judicial Magistrate, he was bound to make an inquiry and to take such evidence as may be necessary, but not on affidavits, so as to determine the age of the accused on the date of the offence. Father of the accused was not examined as a witness. The accused filed the copies of marks-sheet and certificate of Secondary School Examination equivalent to High School Examination, but the same was not relied upon the ground that they have not been proved. If the Magistrate had any doubt about the genuineness of these documents, he was bound to summon the concerned authorities, who had issued such certificates and the doubts could have been removed. Undue importance has been given to the loss of S.R. Register of the Primary School.;