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Sharda Soni @ Sonu Soni vs The State Of Madhya Pradesh on 29 August, 2018

1 Cr.R. No.2943/2018

HIGH COURT OF MADHYA PRADESH, JABALPUR

Criminal Revision No. 2943 of 2018
Parties Name Sharda Soni alias Sonu Soni,
aged about 17 years 03 months and
13 days, S/o Rama Soni
Minor through natural guardian
father, Shri Rama Soni, S/o Shri
Dasai Soni. Occupation Sonari,
R/o Village Ganiyari, Main Road,
Ward No.41, Waidhan,
District Singrauli (M.P.)

-Versus-

The State of M.P.
through Station House Officer,
Police Station Waidhan,
District Singrauli (M.P.)

Bench Constituted Hon’ble Shri Justice B.K.
Shrivastava
Judgment delivered by Hon’ble Shri Justice B.K.
Shrivastava.
Whether approved for reporting Yes / No
Name of counsels for parties For applicant :
Shri Rakesh Dwivedi, Advocate.

For respondent/State :
Shri Aditya Pyasi, Govt. Advocate.

For Objector :
Shri Anil Kumar Dova, Advocate.
Law laid down
Significant paragraphs numbers

ORDER

( 29.08.2018)

1. This revision has been filed under Section 397 and 401 of Cr.P.C
against the order dated 28.04.2018 passed by Special Judge / Sessions
Judge Singrauli, Headquarter Waidhan (M.P.) in Special S.T. No.20/2018.
By the impugned order learned lower Court dismissed the application of
the applicant filed for bail under Section 9 of Juvenile Justice (Care and
Protection of Children) Act, 2015 (in short “Act 2015” hereinafter).

2. The facts of the case are that the accused/applicant was produced

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before the CJM, Singrauli on 09.02.2018 after his arrest in Crime
No.81/2018, registered at Police Station Waidhan under Sections 363, 366-
A, 376(2) of IPC, Section 3(1)(w)(ii), 3(2)(v-a) SC/ST Act and Section 4/6
of POCSO Act. CJM remanded the applicant into judicial custody and
remand paper transmitted to the Sessions Court. On 23.02.2018 the
accused was produced before the Sessions Judge / Special Judge,
Singrauli. On 26.02.2018, an application under Section 9 of the Act, 2015
was filed on behalf of the applicant and in that application it was stated
that the applicant has not completed the age of 18 years. The mark-sheet of
class-Ist, issued by the Indian Children Academy School, Ganiyari Road,
Waidhan, was also filed alongwith aforesaid application.

3. The prosecution opposed the application by filing the written reply
on 05.03.2018. Thereafter, Rama Soni [father of the applicant] was
examined on 08.03.2018 and Principal of aforesaid school was examined
on 14.03.2018. On 26.03.2018, the challan was filed and Special Case
No.20/2018 was registered. On 03.04.2010 the prosecution also examined
witness Manish Tripathi. After hearing the arguments on 04.04.2018 the
Court passed an order on 12.04.2018 for calling the witness Rama Soni for
further examination and the evidence was recorded on 23.04.2018. On
28.04.2018, the order impugned has been passed. It is also appears from
the case that the charges have been framed on 03.07.2018 under Sections
363, 366-A, 376(2)(i), 376(2)(II) of IPC, Section 5(tha)/6 POCSO Act and
Section 3(1)(w)(ii), Section 3(2)(v) of SC/ST Act.

4. By the impugned order the learned lower Court took a note of
Section 94(2) of the Act, 2015 and did not accept the plea of the applicant
that his date of birth is 05.09.2001 and on the date of incident i.e.
03.02.2018 he was below the age of 18 year. The Court mentioned that
except mark sheet of class-I, any other mark-sheet of any higher class has
not been filed. The father unable to explain the basis, upon which he
intimate the date of birth in the School at the time of admission of the
applicant. The Court also mentioned that the applicant is said to be
educated upto Class-Vth, but mark-sheet of Class-Vth has not been
produced.

3 Cr.R. No.2943/2018

5. It appears from para-7 of the impugned order that the lower Court
inquired the matter in exercising the powers given under Section 9(2) of
the Act. In para-8, the Section 94(2) of the Act is also quoted. It is also
appeared from the para-3 of the impugned order that the prosecution
argued before the Lower Court that the marriage agreement has been
executed before the Notary on 06.02.2018, in which the age of the
applicant is mentioned as 20 years and the date of birth 15.08.1999 is also
mentioned in Aadhar Card of the applicant. The trial Court did not discuss
the aforesaid two documents. The trial Court comes to the conclusion that
upon the basis of evidence the applicant is unable to prove that his date of
birth is 15.08.1999, which is mentioned in the School record and held that
the applicant is a boy of above 18 years.

6. “Juvenile Justice(Care and Protection of Children) Act 2015”
came into force with effect from on 15.01.2016. The rules also made
under the aforesaid Act named “The Juvenile Justice(Care and
Protection of Children) Model Rules, 2016” and these rules came into
force with effect from 21.09.2016. Section 94 of the new Act 2015
provide the procedure for determination of the age. Sub-rule-2 of
Section 94 of New Act says :-

“(2) In case, the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought before
it is a child or not, the Committee or the Board, as the case
may be, shall undertake the process of age determination, by
seeking evidence by obtaining

(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical
age determination test conducted on the orders of the
Committee or the Board.

Provided such age determination test conducted on the order of
the Committee of the Board shall be completed within fifteen
days from the date of such order. ”

7. Before the aforesaid Rules, the Section 12 of the Juvenile Justice
(Care and Protection of Children) Act 2007 was applicable. That rules was
considered in Ashwani Kumar Saxena Vs. State of M.P. (2012) AIR

-4- Cr.R. No.2943/2018

SCW 5377. Interpretation of the previous rule 12 will be applicable to the
present Section. In the aforesaid case the Hon’ble Supreme Court has held
in para No.32 and 33, which reads as under:-

“32. “Age determination inquiry” contemplated under Section 7A
of the Act read with Rule 12 of the 2007 Rules enables the court to
seek evidence and in that process, the court can obtain the
matriculation or equivalent certificates, if available. Only in the
absence of any matriculation or equivalent certificates, the court
needs to obtain the date of birth certificate from the school first
attended other than a play school. Only in the absence of
matriculation or equivalent certificate or the date of birth
certificate from the school first attended, the court needs to obtain
the birth certificate given by a corporation or a municipal authority
or a panchayat (not an affidavit but certificates or documents). The
question of obtaining medical opinion from a duly constituted
Medical Board arises only if the above mentioned documents are
unavailable. In case exact assessment of the age cannot be done,
then the court, for reasons to be recorded, may if considered
necessary, give the benefit to the child or juvenile by considering
his or her age on lower side within the margin of one year.

33. Once the court, following the above mentioned procedures,
passes an order, that order shall be the conclusive proof of the age
as regards such child or juvenile in conflict with law. It has been
made clear in sub-rule (5) of Rule 12 that no further inquiry shall
be conducted by the court or the Board after examining and
obtaining the certificate or any other documentary proof after
referring to sub-rule (3) of the Rule 12. Further, Section 49 of the JJ
Act also draws a presumption of the age of the juvenility on its
determination.” [Underline by me]

8. In the case of Jodhbir Singh Vs. State of Punjab AIR 2013 SC 1,
the Hon’ble Supreme Court considered Ashwani Kumar’s case and held in
para 13 as under:-

“13. We are of the view that in a case where genuineness of
the school leaving certificate has not been questioned, the
Session Court and the High Court were not justified in
placing reliance on certain statements made by Parkash
Kaur, mother of the accused in the cross-examination. The
Sessions Court also committed an error in placing reliance
on the certificate issued by the village Chowkidar who was
examined as RW-2. When the law gives prime importance to
the date of birth certificate issued by the school first
attended, the genuineness of which is not disputed, there is
no question of placing reliance on the certificate issued by
the village Chowkidar”. [Underline by me]

9. Therefore, it appears that, if the genuineness of school certificate is
not questioned, then the law gives prima importance to the date of birth
certificate issued by the School. If the evidence stated in Section 94(2) is
5 Cr.R. No.2943/2018

available then the Court could not place reliance upon any other
documents. But it is primarily requirement of the law that the documents
stated in the rule should be genuine. If we see the documents, then it
appears that the mark-sheet of class-I has been issued by the school, which
is duly proved by witness who is Principal of the aforesaid school. Copy
of the scholar register (Ex.P/2) also shows the date of birth as 05.09.2001.
In the admission form (Ex.P/3) the same date of birth has been mentioned
with the photographs of the student. Ex.P/4 is a written application given
by the father of the applicant on 01.07.2006 in which he mentioned that
the date of birth of his son is 05.09.2001. If the mark-sheet of class-I was
produced and other relevant documents were also produced, then there
was no requirement of submission of mark-sheet of class-Vth. But, it is
proper to mention here, that before this Court, the applicant has also filed
mark-sheet of class-Vth, in which same date of birth i.e. 05.09.2001 has
been mentioned. Father of the applicant also stated in his statement that his
son was admitted in that school and got the education till class-Vth.
Therefore, genuineness of the documents is not under questioned. Because
the documents maintained by school in due course of business, then
presumptive value is also attach with the aforesaid documents.

10. If the trial Court was not satisfied with the documents filed by the
applicant comes under category Ist, then it was the duty of the Court to
call the evidence stated in the sub clause-II or III. In this case, the
evidence of sub clause II was not available. Therefore, trial Court was
competent to call the evidence stated in the category No.3, means the trial
Court was competent to call the ossification test report. But the trial Court
only rejected the request of the applicant and relied on the age mentioned
in the arrest memo, while no supporting evidence was available.

11. Therefore, it appears from the entire record that document P/1 is a
genuine document, which is the part of the record maintained by school in
due course of business. It is not found that the record is forged or created
after registration of crime. The law casted the presumptive value of the
school record and no further evidence is required to prove the basis of the
entry. If the date of birth is mentioned in the school record, the Court may
presume that the correct date has been mentioned. Affidavit (Ex.D/2) has

-6- Cr.R. No.2943/2018

been executed after the crime committed. That document has been
executed for the purpose of marriage. Therefore, it can be said that the
intentionally higher age has been mentioned otherwise the applicant could
not succeed to execute the aforesaid affidavit regarding his marriage with
the prosecutrix. The Aadhar card cannot be used as a proof of date of birth.
This document is only for the purpose of identification of particular
person.

12. Therefore, it appears that the applicant was a boy below the age of
18 years at the time of commission of the offence. Therefore, the order
passed by the lower Court dated 28.04.2018 is hereby set-aside. The lower
Court is directed to transmit the record to the concerned Juvenile Justice
Board.

Accordingly, revision is allowed and disposed of.

(B.K.SHRIVASTAVA)
JUDGE

Vin**

Digitally signed by VINOD SHARMA
Date: 2018.08.30 11:53:00 +05’30’

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