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CRL.REV.P. 214/2013 Page 1
HIGH COURT OF DELHI
CRL.REV.P. 214/2013 & Crl.M.A. No.4070/2013
SHREEPAL SINGH ..... Petitioner
Through: Mr. Sunil Upadhyay, Advocate
HIGH COURT OF DELHI
CRL.REV.P. 214/2013 & Crl.M.A. No.4070/2013
SHREEPAL SINGH ..... Petitioner
Through: Mr. Sunil Upadhyay, Advocate
VERSUS
STATE GOVT. OF NCT OF DELHI ..... Respondent
Through: Mr. Mukesh Gupta, Additional Public Prosecutor for respondent-
State with SI Arvind Mr. A.K. Sherawat, Advocate
Through: Mr. Mukesh Gupta, Additional Public Prosecutor for respondent-
State with SI Arvind Mr. A.K. Sherawat, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 14.08.2013
Petitioner is the complainant/first informant of FIR No.241/2012 under Section 302 of IPC registered at P.S. Gazipur, Delhi, who is aggrieved by impugned order of 18th October, 2012 (Annexure-B) vide which Juvenile Justice Board's order of 28th August, 2012 declaring accused-Shipra as of major age has been set aside and accused-Shipra has been declared to be a juvenile.
While entertaining this petition, proceedings before the Juvenile
Justice Board was stayed as it was found that the impugned order relies upon the Delhi Juvenile Justice (Care and Protection of Children) Rules, 2007 whereas the applicable Rules are of the year 2009.
In this petition, setting aside of impugned order and restoration of
2013:DHC:4074
Petitioner is the complainant/first informant of FIR No.241/2012 under Section 302 of IPC registered at P.S. Gazipur, Delhi, who is aggrieved by impugned order of 18th October, 2012 (Annexure-B) vide which Juvenile Justice Board's order of 28th August, 2012 declaring accused-Shipra as of major age has been set aside and accused-Shipra has been declared to be a juvenile.
While entertaining this petition, proceedings before the Juvenile
Justice Board was stayed as it was found that the impugned order relies upon the Delhi Juvenile Justice (Care and Protection of Children) Rules, 2007 whereas the applicable Rules are of the year 2009.
In this petition, setting aside of impugned order and restoration of
2013:DHC:4074
CRL.REV.P. 214/2013 Page 2
Juvenile Justice Board's order is sought.
During the course of the hearing, it was pointed out by petitioner's counsel that Juvenile Justice Board had rightly relied upon the date of birth furnished at the time of admission in the first attended school and appellate court has erroneously relied upon the Delhi Juvenile Justice
(Care and Protection of Children) Rules, 2007 which gives precedence to the matriculation certificate while relying upon the old Rules and infact, the correct age of accused-Shipra is reflected in the first-attended school certificate and it has not been shown as to how her date of birth changes in the matriculation certificate. Thus, setting aside of impugned order and restoration of Juvenile Justice Board's order is sought.
Learned counsel for accused-Shipra supports the impugned order and submits that first attended school certificate has been rightly discarded by the appellate court as the affidavit furnished by father of accused was undated and it was not notarized/verified and even if case of accused-Shipra is considered under the amended Rules, still reliance ought to be placed upon the matriculation certificate and Juvenile Justice
Board had erroneously ignored it. Lastly, it was submitted that the proceedings ought to be continued before the Juvenile Justice Board as accused-Shipra is a juvenile and because petitioner has concealed the fact that earlier petitioner's son had filed similar petition and the same was withdrawn on 1st April, 2013. It is also pointed out that respondent-State has also filed similar petition which is now coming up for hearing on 27th August, 2013.
Be that as it may.
Since this matter has been finally heard at length, therefore, this
Juvenile Justice Board's order is sought.
During the course of the hearing, it was pointed out by petitioner's counsel that Juvenile Justice Board had rightly relied upon the date of birth furnished at the time of admission in the first attended school and appellate court has erroneously relied upon the Delhi Juvenile Justice
(Care and Protection of Children) Rules, 2007 which gives precedence to the matriculation certificate while relying upon the old Rules and infact, the correct age of accused-Shipra is reflected in the first-attended school certificate and it has not been shown as to how her date of birth changes in the matriculation certificate. Thus, setting aside of impugned order and restoration of Juvenile Justice Board's order is sought.
Learned counsel for accused-Shipra supports the impugned order and submits that first attended school certificate has been rightly discarded by the appellate court as the affidavit furnished by father of accused was undated and it was not notarized/verified and even if case of accused-Shipra is considered under the amended Rules, still reliance ought to be placed upon the matriculation certificate and Juvenile Justice
Board had erroneously ignored it. Lastly, it was submitted that the proceedings ought to be continued before the Juvenile Justice Board as accused-Shipra is a juvenile and because petitioner has concealed the fact that earlier petitioner's son had filed similar petition and the same was withdrawn on 1st April, 2013. It is also pointed out that respondent-State has also filed similar petition which is now coming up for hearing on 27th August, 2013.
Be that as it may.
Since this matter has been finally heard at length, therefore, this
CRL.REV.P. 214/2013 Page 3
Court is not inclined to now adjourn this matter to 27th August, 2013 as certified copy of deposition of father of accused as well as material witnesses and of witness from school which was first attended by accused- Shipra has been placed on record today.
Upon extensively hearing both the sides and on perusal of the impugned order, Juvenile Justice Board's order and the copies of the deposition of material witnesses and the material on record, I find that liberty was granted to file fresh petition when petitioner's son had withdrawn the earlier petition. After having perused the deposition of material witness (CW-1) from the first attended school of accused and deposition of father of accused, I find that no explanation is coming from any quarter as to how the date of birth i.e. 20th April, 1994, as reflected in the first attended school certificate of accused, changes to 16th October, 1994 in the matriculation certificate of accused.
It is true that the affidavit/undertaking filed by father of accused at the time of admission of respondent-accused in the first attended school i.e. Divya Jyoti Public School does not bear any date nor it is duly attested or notarized and so appellate court has rightly discarded it.
However, appellate court has grossly erred in relying upon the matriculation certificate of respondent-accused because no explanation is forthcoming as to how the date of birth changes from 20th April, 1994 in the first attended school of accused to 16th October, 1994 in the matriculation certificate of accused. Therefore, it is not safe to even rely upon the matriculation certificate of accused. Birth certificate of respondent-accused is not forthcoming. In such a situation, the only option available under Rule 12 of the Delhi Juvenile Justice (Care and
Court is not inclined to now adjourn this matter to 27th August, 2013 as certified copy of deposition of father of accused as well as material witnesses and of witness from school which was first attended by accused- Shipra has been placed on record today.
Upon extensively hearing both the sides and on perusal of the impugned order, Juvenile Justice Board's order and the copies of the deposition of material witnesses and the material on record, I find that liberty was granted to file fresh petition when petitioner's son had withdrawn the earlier petition. After having perused the deposition of material witness (CW-1) from the first attended school of accused and deposition of father of accused, I find that no explanation is coming from any quarter as to how the date of birth i.e. 20th April, 1994, as reflected in the first attended school certificate of accused, changes to 16th October, 1994 in the matriculation certificate of accused.
It is true that the affidavit/undertaking filed by father of accused at the time of admission of respondent-accused in the first attended school i.e. Divya Jyoti Public School does not bear any date nor it is duly attested or notarized and so appellate court has rightly discarded it.
However, appellate court has grossly erred in relying upon the matriculation certificate of respondent-accused because no explanation is forthcoming as to how the date of birth changes from 20th April, 1994 in the first attended school of accused to 16th October, 1994 in the matriculation certificate of accused. Therefore, it is not safe to even rely upon the matriculation certificate of accused. Birth certificate of respondent-accused is not forthcoming. In such a situation, the only option available under Rule 12 of the Delhi Juvenile Justice (Care and
CRL.REV.P. 214/2013 Page 4
Protection of Children) Rules, 2009 is to invoke Sub-Section 3 (b) of aforesaid Rule 12 to obtain the medical opinion from a duly constituted medical board regarding the age of accused as no conclusive proof of the age of accused is available.
In the light of aforesaid, impugned order as well as order of
Juvenile Justice Board is set aside with direction to Juvenile Justice
Board to get a medical opinion from the duly constituted medical board and to determine the age of accused-Shipra with expedition and till then, the inquiry proceedings on merits be kept in abeyance. Juvenile Justice
Board be apprised of this order forthwith.
This petition and the application are accordingly disposed of.
(SUNIL GAUR)
Judge AUGUST 14, 2013 s
Protection of Children) Rules, 2009 is to invoke Sub-Section 3 (b) of aforesaid Rule 12 to obtain the medical opinion from a duly constituted medical board regarding the age of accused as no conclusive proof of the age of accused is available.
In the light of aforesaid, impugned order as well as order of
Juvenile Justice Board is set aside with direction to Juvenile Justice
Board to get a medical opinion from the duly constituted medical board and to determine the age of accused-Shipra with expedition and till then, the inquiry proceedings on merits be kept in abeyance. Juvenile Justice
Board be apprised of this order forthwith.
This petition and the application are accordingly disposed of.
(SUNIL GAUR)
Judge AUGUST 14, 2013 s
JUDGMENT