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CRL.REV.P. 336/2013 Page 1
HIGH COURT OF DELHI
CRL.REV.P. 336/2013
MUJAHID ALI ..... Petitioner
Through: Mr. Anurag Jain, Advocate
HIGH COURT OF DELHI
CRL.REV.P. 336/2013
MUJAHID ALI ..... Petitioner
Through: Mr. Anurag Jain, Advocate
VERSUS
STATE NCT OF DELHI ..... Respondent
Through: Mr. Mukesh Gupta, Additional Public Prosecutor for respondent-
State with SI Kuldeep Bhoriya
Through: Mr. Mukesh Gupta, Additional Public Prosecutor for respondent-
State with SI Kuldeep Bhoriya
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 07.08.2013
Crl.M.A. No.9189/2013 (Exemption)
Allowed subject to all just exceptions.
Crl.M.A. No.9189/2013 (Exemption)
Allowed subject to all just exceptions.
CRL.REV.P. 336/2013 & Crl.M.A. No.1190/2013 (Stay)
Petitioner's prayer for being declared as a juvenile stands rejected vide order of 10th April, 2013. Impugned order places reliance upon earlier order of 15th September, 2012 vide which petitioner was directed to be got examined by a duly constituted medical board in a government hospital for age determination.
Petitioner is facing trial in FIR No.44/2011 under Section 21 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 registered at P.S.
Special Cell, Delhi as he was found in possession of 1 k.g. of Heroin.
Impugned order discards petitioner's mark-sheet (Ex.CW2/A) issued by
2013:DHC:3948
Petitioner's prayer for being declared as a juvenile stands rejected vide order of 10th April, 2013. Impugned order places reliance upon earlier order of 15th September, 2012 vide which petitioner was directed to be got examined by a duly constituted medical board in a government hospital for age determination.
Petitioner is facing trial in FIR No.44/2011 under Section 21 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 registered at P.S.
Special Cell, Delhi as he was found in possession of 1 k.g. of Heroin.
Impugned order discards petitioner's mark-sheet (Ex.CW2/A) issued by
2013:DHC:3948
CRL.REV.P. 336/2013 Page 2
U.P. Board of Madarsa Education, Lucknow which records his date of birth as 11th September, 1994 and another educational certificate
(Ex.CW3/A) and a copy of school transfer certificate issued by his first attended Madarsa i.e. Madarsa Zia Ul Quran, Karkrala, Badaun evidencing age of petitioner and has also discarded deposition of petitioner's elder brother (CW-1), but has relied upon medical board's report determining the age of petitioner as more than 20 years as on 25th September, 2012 and thus, impugned order concludes that on the date of offence i.e. 26th July, 2011, petitioner was aged more than 18 years and was not a juvenile.
Learned counsel for petitioner submits that though the impugned order notes that certificate (Ex.CW2/A) issued by U.P. Board of Madarsa
Education, Lucknow is equivalent to 10th class certificate, but still has not relied upon it. It is submitted on behalf of petitioner that there was no justification for the trial court to have doubted the school transfer certificate, which was produced by the Principal of Madarsa (CW-4)and as per Rule 12 of the Juvenile Justice (Care and Protection of Children)
Rules, 2007, the primary evidence i.e. matriculation certificate or its equivalent certificate/school certificate wherein date of birth is recorded ought to be the basis of determination of age to find out whether the accused is a juvenile or not and it is only in the absence of matriculation certificate, birth certificate or school certificate that medical opinion is to be sought regarding the age of accused claiming to a juvenile. Thus, it is submitted that impugned order is patently illegal and deserves to be set aside and petitioner ought to be declared a juvenile.
During the course of hearing, learned Additional Public Prosecutor
U.P. Board of Madarsa Education, Lucknow which records his date of birth as 11th September, 1994 and another educational certificate
(Ex.CW3/A) and a copy of school transfer certificate issued by his first attended Madarsa i.e. Madarsa Zia Ul Quran, Karkrala, Badaun evidencing age of petitioner and has also discarded deposition of petitioner's elder brother (CW-1), but has relied upon medical board's report determining the age of petitioner as more than 20 years as on 25th September, 2012 and thus, impugned order concludes that on the date of offence i.e. 26th July, 2011, petitioner was aged more than 18 years and was not a juvenile.
Learned counsel for petitioner submits that though the impugned order notes that certificate (Ex.CW2/A) issued by U.P. Board of Madarsa
Education, Lucknow is equivalent to 10th class certificate, but still has not relied upon it. It is submitted on behalf of petitioner that there was no justification for the trial court to have doubted the school transfer certificate, which was produced by the Principal of Madarsa (CW-4)and as per Rule 12 of the Juvenile Justice (Care and Protection of Children)
Rules, 2007, the primary evidence i.e. matriculation certificate or its equivalent certificate/school certificate wherein date of birth is recorded ought to be the basis of determination of age to find out whether the accused is a juvenile or not and it is only in the absence of matriculation certificate, birth certificate or school certificate that medical opinion is to be sought regarding the age of accused claiming to a juvenile. Thus, it is submitted that impugned order is patently illegal and deserves to be set aside and petitioner ought to be declared a juvenile.
During the course of hearing, learned Additional Public Prosecutor
CRL.REV.P. 336/2013 Page 3 for respondent-State had extensively referred to trial court's order of 15th September, 2012 and 10th April, 2013 to point out that though certificate
(Ex.CW2/A) is equivalent to matriculation certificate, but it is rightly not relied upon by the trial court as it is not counter-signed by the Principal of
Madarsa from where petitioner had purportedly cleared the Munshi examination. Accordingly to learned Additional Public Prosecutor for respondent-State, certificate (Ex.CW2/A) is prepared on the basis of documents tendered by Madarsa Jamia Barshirya Arbia Kakrala, Badaun, which was not verified by U.P. Board Madarsa and so it has been rightly discarded. As regards certificate (Ex.CW3/A), it is pointed out by learned Additional Public Prosecutor for respondent-State that there is no stamp of Principal in the entire register produced by
M.G.Khan and there were additions and alternations in the year/session at point-A in Ex.CW3/A and in the register produced, the date of admission of student or signatures of the Principal were missing which indicated that the record was not being properly maintained. It is further pointed out that copy of school transfer certificate relied upon by petitioner is a photocopy and in view of discrepancies pointed out in the certificate
(Ex.CW3/A), the photocopy of the school transfer certificate has been rightly discarded by the trial court. It is submitted that deposition of elder brother of petitioner (CW-1) has been rightly discarded by the trial court as he had only remembered the date of birth of petitioner and he could not remember the date of birth of his other brothers and sisters and could not disclose about their educational qualifications. Thus, it is submitted that the impugned order is well merited and this petition is without substance and so, it deserves to be dismissed.
CRL.REV.P. 336/2013 Page 4
Both the sides have been heard and impugned order as well as material on record is perused. No doubt, the procedure to determine the claim of juvenility has to be strictly in accordance with Rule 12 of the
Juvenile Justice (Care and Protection of Children) Rules, 2007, but it does not mean that if the birth certificate, matriculation certificate, etc, are not reliable, then age determination by the Medical Board cannot be made the basis to decide the claim of juvenility raised by an accused.
Since the certificate (Ex.CW2/A) is not counter-signed by the Principal of
Madarsa, therefore, trial court has rightly not relied upon it. Similarly, certificate (Ex.CW3/A) is based upon documents tendered by the Madarsa which were not verified by U.P. Board Madarsa as additions and alterations were found in certificate (Ex.CW3/A) and the register produced to prove said certificate was not properly maintained as is evident from deposition of M.G. Khan (CW-3) and so, trial court was justified in not relying upon certificate (Ex.CW3/A).
The deposition of (CW-4), who has deposed in respect of photocopy of the school transfer certificate, reveals that the school transfer certificate has been issued twice. First school transfer certificate was issued in the year 2009 which did not bear the date of issuance of the certificate nor had contained the particulars of admission file, etc.
Various alterations and additions were found in the relevant columns of the school register produced and so, trial court was justified in not relying upon the school transfer certificate. Deposition of elder brother (CW-1) of petitioner has been rightly discarded by the trial court as upon bare perusal of his deposition, it becomes evident that he is a tutored witness.
In view of the aforesaid, trial court has rightly relied upon the age
CRL.REV.P. 336/2013 Page 5 determined by the Medical Board as ossification centres namely Ischial
Tuberosity of petitioner are found to be completely fused indicating his age more than 20 years on the date of examination. It is relevant to note that at the time of petitioner's initial medical examination, he had given his age as 22 years. Trial court's orders of 15th September, 2012 and 10th April, 2013 rejecting petitioner's claim of being a juvenile, do not suffer from any illegality or infirmity.
Resultantly, this petition and the application are dismissed.
(SUNIL GAUR)
Judge AUGUST 07, 2013 s
(Ex.CW2/A) is equivalent to matriculation certificate, but it is rightly not relied upon by the trial court as it is not counter-signed by the Principal of
Madarsa from where petitioner had purportedly cleared the Munshi examination. Accordingly to learned Additional Public Prosecutor for respondent-State, certificate (Ex.CW2/A) is prepared on the basis of documents tendered by Madarsa Jamia Barshirya Arbia Kakrala, Badaun, which was not verified by U.P. Board Madarsa and so it has been rightly discarded. As regards certificate (Ex.CW3/A), it is pointed out by learned Additional Public Prosecutor for respondent-State that there is no stamp of Principal in the entire register produced by
M.G.Khan and there were additions and alternations in the year/session at point-A in Ex.CW3/A and in the register produced, the date of admission of student or signatures of the Principal were missing which indicated that the record was not being properly maintained. It is further pointed out that copy of school transfer certificate relied upon by petitioner is a photocopy and in view of discrepancies pointed out in the certificate
(Ex.CW3/A), the photocopy of the school transfer certificate has been rightly discarded by the trial court. It is submitted that deposition of elder brother of petitioner (CW-1) has been rightly discarded by the trial court as he had only remembered the date of birth of petitioner and he could not remember the date of birth of his other brothers and sisters and could not disclose about their educational qualifications. Thus, it is submitted that the impugned order is well merited and this petition is without substance and so, it deserves to be dismissed.
CRL.REV.P. 336/2013 Page 4
Both the sides have been heard and impugned order as well as material on record is perused. No doubt, the procedure to determine the claim of juvenility has to be strictly in accordance with Rule 12 of the
Juvenile Justice (Care and Protection of Children) Rules, 2007, but it does not mean that if the birth certificate, matriculation certificate, etc, are not reliable, then age determination by the Medical Board cannot be made the basis to decide the claim of juvenility raised by an accused.
Since the certificate (Ex.CW2/A) is not counter-signed by the Principal of
Madarsa, therefore, trial court has rightly not relied upon it. Similarly, certificate (Ex.CW3/A) is based upon documents tendered by the Madarsa which were not verified by U.P. Board Madarsa as additions and alterations were found in certificate (Ex.CW3/A) and the register produced to prove said certificate was not properly maintained as is evident from deposition of M.G. Khan (CW-3) and so, trial court was justified in not relying upon certificate (Ex.CW3/A).
The deposition of (CW-4), who has deposed in respect of photocopy of the school transfer certificate, reveals that the school transfer certificate has been issued twice. First school transfer certificate was issued in the year 2009 which did not bear the date of issuance of the certificate nor had contained the particulars of admission file, etc.
Various alterations and additions were found in the relevant columns of the school register produced and so, trial court was justified in not relying upon the school transfer certificate. Deposition of elder brother (CW-1) of petitioner has been rightly discarded by the trial court as upon bare perusal of his deposition, it becomes evident that he is a tutored witness.
In view of the aforesaid, trial court has rightly relied upon the age
CRL.REV.P. 336/2013 Page 5 determined by the Medical Board as ossification centres namely Ischial
Tuberosity of petitioner are found to be completely fused indicating his age more than 20 years on the date of examination. It is relevant to note that at the time of petitioner's initial medical examination, he had given his age as 22 years. Trial court's orders of 15th September, 2012 and 10th April, 2013 rejecting petitioner's claim of being a juvenile, do not suffer from any illegality or infirmity.
Resultantly, this petition and the application are dismissed.
(SUNIL GAUR)
Judge AUGUST 07, 2013 s
JUDGMENT