- (1.) This revision has been filed by the revisionist against the judgment and order dated 13.1.2009 passed by learned Additional District Judge, Court No. 9, Muzaffar Nagar.
(2.) The brief facts of this case are that the revisionist is involved in Case Crime No. 215 of 2007 under Section 302/307 I.P.C., Police Station Charthawal, District Muzaffar Nagar. On 12.6.2007, the mother of the revisionist moved an application before the Juvenile Justice Board ( for short "the Board") as constituted under Section 4 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (For short "the Act") with the prayer that the revisionist be declared a juvenile as on the date of the alleged incident his age was less than 18 years. The learned Board considered the said application, collected oral as well as documentary evidence and after considering the evidence available before him and hearing the learned counsel for both the parties, allowed the said application by holding that on the relevant date the revisionist was a juvenile. The complainant/opposite party no. 2 Smt. Khatizan felt aggrieved by the order passed by the Board and preferred an appeal before the learned Sessions Judge under Section 52 of the Act. The said appeal was registered as Criminal Appeal No. 11 of 2008 and was transferred to the court of IX Additional Sessions Judge for its disposal in accordance with law. The learned Judge heard the learned counsel for the parties and thereafter by a detailed judgment, he allowed the appeal and set aside the order passed by the Board through which the Board had declared the revisionist a juvenile. Hence the present revision. This case was listed on 29.9.2010 for hearing. On that date no one was present on behalf of opposite party no. 2 despite notice of the present revision. Learned counsel for the revisionist and learned A.G.A. were present. Heard learned counsel for the revisionist and learned A.G.A. It has been submitted from the side of the revisionist that the judgment and order impugned has been passed in a mechanical manner and without application of judicial mind, that the order is illegal and perverse, that various statements and documents filed before the Board have been misread and misinterpreted by the learned appellate court. It has further been submitted that the date of birth of the revisionist has been mentioned in the High School marksheet as 18.6.1989 and this has been ignored by the learned Judge without any rhyme or reason and without assigning proper reason. It has also been submitted that the date of birth as mentioned in the High School marksheet has been duly corroborated by the school leaving certificate issued by the school of the revisionist. It has further been contended by learned counsel for the revisionist that various mandates as given by the Apex Court have been ignored and misinterpreted by the learned appellate court and, therefore, the judgment and order impugned herein is bad in the eyes of law and, therefore, it should be quashed and the order of the learned Board should be restored. The contentions of the learned counsel for the revisionist have been vehemently opposed by learned A.G.A.
(3.) The date of the order passed by the learned Board is 24.1.2008 and that of the learned lower appellate court is 13.1.2009. On that date the Juvenile Justice (Care & Protection of Children) Rules, 2007 (for short "the Rules") had come into force. Rule 12 of the Rules prescribes the procedure to be followed in determination of age of a juvenile. This Rule prescribes that "In every case concerning a child or a juvenile in conflict with law, the age of such type of juvenile shall be determined in accordance with the procedure given in this rule keeping in view the physical appearance or documents, if available, and keeping in view the procedure as laid down in sub Rule 3 of Rule 12 of the Rules." The said sub rule 3 of Rule 12 of the Rules is as follows : 12. (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, 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.;