- (1.) WE have heard Mr Servesh Kumar Mishra- learned counsel for the revisionist and Mr M.P. Rai- learned counsel for the respondents, and perused the record.
(2.) THE revisionist challenges the order dated 29.10.2011 passed by the learned Additional Sessions Judge (Temporary Ex-cadre) Court No. 1, Fatehpur on the application of the accused- respondent No. 2, Subhadra Pathak, under section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (herein-after referred to as 'The Act'). This is the second order passed on the application of respondent No. 2 claiming juvenility. The first order was passed by another Additional Sessions Judge rejecting the application. That order was challenged in Criminal Revision No. 2984 of 2012, which was allowed by this Court and the case was sent back to the lower court with the direction that a fresh inquiry be made in accordance with the observations made in the order of the revision, that is, the lower court was to ascertain whether the matriculation certificate and mark-sheet produced by the revisionist (accused) was genuine, and the date of birth shown in the certificate had any reasonable basis. The learned Additional Sessions Judge passed this order after taking evidence from both the sides and held the respondent No. 2 as juvenile. He adopted the procedure given in the Sub-rule 3 of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (herein-after referred to as 'The Central Rules') and rejected the evidence of the prosecution which included the certificates of school first attended, Junior High School, and High School failed. The dispute in this revision is confined to the question whether the procedure provided under the Central Rules should apply to the facts or the procedure provided under U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004(herein-after to be referred to as the 'U.P. Rules'), in determination of the age of the accused. The matrix that brought on the facts of this case with regard to the age of respondent No. 2 discloses that the respondent claimed juvenility before the trial court in Case Crime No. 122 of 2008, under section 302 and 394 IPC, P.S. Dhata, district Fatehpur. He produced a Junior High School certificate and a High School Certificate which carried the date of birth as 09.08.1991. The documents were got verified by the witnesses. The prosecution on the other hand produced school certificates beginning from Primary School and Junior High School Certificates and a High School Certificate, in which the respondent-accused applied for but did not appear at the examination, and therefore failed. In these certificates the date of birth of the accused has been found entered as 01.08.1989. The incident having taken place on 14.09.2008, the accused was not juvenile on the date of occurrence if the age of the accused be calculated from 01.08.1989, and he certainly fell below 18 years if his age were counted from 09.08.1991. The Additional Sessions Judge passing the impugned order went along with the procedure given under Rule 12(3) of the Central Rules, and therefore relied on the High School Certificate for determination of the age. Had he followed the U.P. Rules and considered certificates beginning from Primary School till High School (failed) the accused would not have been adjudged a juvenile.
(3.) CRIMINALITY bears heavily upon unbridled adolescence, which harbours both juvenility and adulthood with a fine divide. Judicial solicitude is confronted with endeavours with a vengeance to transgress the divide, and thus in the absence of express provision in the Act or the Rules to hear the other party even in this important matter, necessarily calls for notice to the aggrieved, who could help the Court in cross-verifying the claim of the accused with regard to his age. However in the present case, the matter has been pursued upto this Court by a member of the victim's family.;