{"id":123378,"date":"2010-07-12T00:00:00","date_gmt":"2010-07-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sonu-avanish-shankar-tiwari-vs-state-of-u-p-another-on-12-july-2010"},"modified":"2015-04-08T22:14:26","modified_gmt":"2015-04-08T16:44:26","slug":"sonu-avanish-shankar-tiwari-vs-state-of-u-p-another-on-12-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sonu-avanish-shankar-tiwari-vs-state-of-u-p-another-on-12-july-2010","title":{"rendered":"Sonu @ Avanish Shankar Tiwari vs State Of U.P. & Another on 12 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Sonu @ Avanish Shankar Tiwari vs State Of U.P. & Another on 12 July, 2010<\/div>\n
Reserved\n\n\nCase :- CRIMINAL REVISION No. - 199 of 2010\n\n\nPetitioner :- Sonu @ Avanish Shankar Tiwari\n\nRespondent :- State Of U.P. & Another\n\nPetitioner Counsel :- R.P. Mishra\n\nRespondent Counsel :- Govt. Advocate\n\n\nHon'ble Shri Kant Tripathi,J.\n<\/pre>\n
1. By this revision under section 53 of Juvenile Justice (Care and Protection of Children) Act
\n2000, (hereinafter referred to as “the Act of 2000”), the revisionist Sonu @ Avanish Shankar
\nTiwari has assailed the order dated 27.4.2010 rendered by Special Judge (E.C. Act), Gonda
\nin Sessions Trial No. 183 of 1999, State Vs. Shiv Shankar Tiwari and others, whereby the
\nlearned Special Judge refused to declare the revisionist as a juvenile.\n<\/p>\n
2. Heard Mr. R.P. Mishra the learned counsel for the revisionist, Mr. M.K. Mishra for the
\nrespondent no.2 and the learned AGA for the respondent no.1 and perused the record.\n<\/p>\n
3. It appears that in the aforesaid Sessions Trial, the revisionist Sonu @ Avanish Shankar
\nTiwari is an accused under section 147, 148, 149, 307 and 302 IPC. The incident relating to
\nthe case took place on 13.5.1998. The revisionist Sonu @ Avanish Shankar Tiwari claimed
\nhimself as a Juvenile and pleaded that his date of birth as per the High School certificate was
\n6.7.1981. In the school first attended the date of birth is recorded as 20.3.1981. A copy of the
\nvoter list has been filed by the respondents, which shows that the revisionist was aged about
\n32 years in the year 2009. The learned Special Judge held an inquiry under section 7-A of the
\nAct of 2000 and arrived at the conclusion that the revisionist was more than 18 years on the
\ndate of the occurrence. During the inquiry, the revisionist’s father CW-2 Shiv Shankar Tiwari
\nappeared as a witness in support of the plea of juvenility of the revisionist. One Sri O.S.
\nJackson, a clerk in the Chambers Memorial Girls School, Gonda also appeared as a witness
\nalong with the original school register.\n<\/p>\n
4. The learned Special Judge disbelieved the school record on the ground that the
\n revisionist’s father stated that the revisionist was admitted in the school in the year 1986 and
\nat that time the revisionist was aged about five years but no specific inference regarding the
\ndate of birth could be drawn from such statement. The date of birth mentioned in the school
\nrecord was a relevant material according to the rules but the learned Special Judge failed to
\ngive due consideration to this aspect of the matter and overlooked the rules. The learned
\nSpecial Judge has also placed reliance on Pratap Singh Vs. State of Jharkhand 2005 (2)
\nCriminal Court Cases 334, in which the Apex Court has held that entry in the school record is
\nrelevant and admissible but the entry regarding the age of a person in a school register is of
\nnot much evidenciary value in the absence of the material on which the age was recorded.
\nThe learned Special Judge further placed reliance on Birad Mal Singhavi Vs. Anand Purohit
\nAIR 1988 SC 1376 in which too a similar principle has been propounded.\n<\/p>\n
5. Mr. R.P. Mishra, the learned counsel for the revisionist, submitted that the learned Special
\nJudge travelled beyond his jurisdiction in placing reliance on the aforesaid rulings, specially
\nwhen in the aforesaid cases the rules framed under the Act of 2000 in Uttar Pradesh were not
\ntaken into consideration. Mr. Mishra further submitted that the learned Special Judge has not
\ndecided the case per the rules applicable in this case.\n<\/p>\n
6. The learned counsel for the respondent no.2 on the other hand submitted that the finding of
\nfact can not be upset in this revision. It was also submitted that the matter relates to an
\nincident that took place prior to coming into force of the Act of 2000, therefore, the revisionist
\nis not entitled to the benefit of the Act of 2000 unless it is shown that he was not more than 18
\nyears on the commencement of the Act of 2000, therefore, the revisionist was not in any way
\na juvenile on the date of the occurrence of this case.\n<\/p>\n
7. The Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004 have
\nbeen framed, which deal with the various matters relating to the Juveniles. The Rule 22 (5) of
\nthe said rules is the relevant rule for the purposes of determining the age of the person, who
\nclaims himself as a juvenile. The learned lower Court has not considered the provisions of
\nRule 22 (5) of the said Rules while passing the impugned order and has overlooked the
\nsame. Rule 22 (5) of the said Rules is being reproduced as follows:\n<\/p>\n
          “22 (5) In every case concerning a juvenile or child, the Board shall either
\n          obtain,-\n<\/p><\/blockquote>\n
          (i) a birth certificate given by a corporation or a municipal authority; or\n<\/p><\/blockquote>\n
           (ii) a date of birth certificate from the school first attended; or<\/p>\n<\/blockquote>\n
          (iii) matriculation or equivalent certificates, if available; and<\/p>\n<\/blockquote>\n
          (iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted
\n          Medical Board, subject to a margin of one year, in deserving cases for the
\n          reasons to be recorded by such Medical Board, regarding his age; and, when
\n          passing orders in such case shall, after taking into consideration such evidence
\n          as may be available or the medical opinion, as the case may be, recorded a
\n          finding in respect of his case.”\n<\/p><\/blockquote>\n
8. A similar set of rules have also been framed in the State of Jharkhand, which have been
\nreferred to in the case of Babloo Pasi V. State of Jharkhand & Anr,<\/a> 2009 (64) ACC. 754. In
\nother words, Rule 22 (5) of the U.P. Juvenile Justice (Care and Protection of Children) Rules,
\n2004 is pari materia with Rule 22 (5) of the Jharkhand Juvenile Justice (Care and Protection
\nof Children) Rules, 2003. In the case of Babloo Pasi (supra) the Apex Court has interpreted
\nRule 22 (5) of the Jharkhand Rules and held that in the absence of birth certificate given by a
\ncorporation or a municipal authority or date of birth certificate from the school first attended or
\nthe Matriculation or equivalent certificate, the medical opinion by a duly constituted Board
\nsubject to the margin of one year, in deserving cases shall be relevant for determining the
\nage of the alleged juvenile but the medical opinion per se is not a conclusive proof of the age
\nof the person concerned and it is merely an opinion. The Apex Court further held that it would
\nbe imprudent to formulate a uniform standard for the determination of the age. True the
\nMedical Board’s opinion based on radiological examination is a useful guiding factor for
\ndetermination of the age of a person but is not incontrovertible. The date of birth is to be
\ndetermined on the basis of material on record and appreciation of the evidence adduced by
\nthe parties.\n<\/p>\n
9. Under the Rule 22 (5) of the U.P. Juvenile Justice (Care and Protection of Children) Rules,
\n2004, the date of birth certificate issued by a corporation or a municipal authority or school is
\nthe relevant material for determining the age of the person who claims to be a juvenile. In
\nabsence of these materials, the medical opinion which is controvertible, may be taken into
\nconsideration. While considering the medical opinion, a margin of one year for determining
\nthe age may be given.\n<\/p>\n
10. Apparently, the learned Special Judge has not proceeded to determine the question of
\n juvenility of the revisionist in accordance with the aforesaid rule 22 (5). If the school record
\nentry was not genuine and there was no birth certificate given by a corporation or a municipal
\nauthority, the medical opinion by a duly constituted medical board subject to a margin of one
\nyear ought to have been obtained and taken into consideration but no attempt was made to
\nprocure such opinion.\n<\/p>\n
11. According to the learned Special Judge, the date of birth in the school first attended by the
\napplicant was different from the date of birth recorded in the High School certificate. In the
\nHigh School certificate, the date of birth is 6.7.1981, whereas in the initial institution the date
\nof birth was recorded as 6.3.1981. In my opinion, this aspect of the matter was not very
\nrelevant in view of the fact that the applicant was less than 18 years on the date of occurrence
\non the basis of the date of birth recorded in the initial school as well as in the High School
\ncertificate. The applicant was 16 years, 10 month and 7 days on the date of occurrence
\naccording to the High School certificate and he was 17 years 2 months and 7 days on the
\ndate of occurrence according to the initial school’s record, but according to both the records,
\nhe was less than 18 years. The learned counsel for the respondent no.2 submitted that on the
\ndate of occurrence The Juvenile Justice Act, 1986 was in force and in that Act a person was
\nconsidered to be a juvenile if he was below 16 years on the date of the occurrence. In view of
\nthe fact that the revisionist was more than 16 years on the date of occurrence, he was not a
\njuvenile, therefore, he can not be permitted to claim any benefit of being juvenile under the
\nAct of 2000. The learned counsel for the respondent no.2 further submitted that under the
\nnew Act a person is considered as a juvenile if he has not completed 18 years of age on the
\ndate of the commission of the offence. It may not be out of context to mention that the Act of
\n2000 came into force on 1.4.2.001, therefore, according to the learned counsel for the
\nrespondent no.2 the revisionist had completed more than 18 years before the date of the
\ncommencement of the Act of 2000, therefore, he was not a juvenile. In this connection, the
\nlearned counsel for the respondent no.2 relied on Pratap Singh’s case, Jabar Singh vs.
\nDinesh and<\/a> another 2010 (69) ACC 326 and Munne Vs. State of U.P. 2006 (12) SCC 697
\nand submitted that the revisionist was not a juvenile on the date of occurrence.\n<\/p>\n
12. The learned counsel for the revisionist, in reply submitted that by the Amendment of 2006
\ncertain amendments were made in various sections including section 20 of the Act of 2000
\nand thereby an explanation was added in section 20. After the amendment, the principles laid
\ndown in Pratap Singh’s case (supra) have no material bearing. The explanation to section 20
\n of the Act of 2000 is extracted as follows:\n<\/p>\n
              “Explanation- In all pending cases including trial, revision, appeal or any
\n              other criminal proceedings in respect of a juvenile in conflict with law in any
\n              court, the determination of juvenility of such a juvenile shall be in term of
\n              clause (l) of Section 2, even if the juvenile ceases to be so on or before the
\n              date of commencement of this Act and the provisions of this Act shall apply
\n              as if the said provisions had been in force, for all purposes and at all material
\n              times when the alleged offence was committed.”\n<\/p><\/blockquote>\n
13. The provisions of Act of 2000 as amended by the Amending Act of 2006 have been
\nconsidered by the Apex Court in the case of Hari Ram Vs. State of Rajasthan 2009 (13) SCC\n<\/p>\n
211. The Apex Court held:\n<\/p>\n
              “The said intention of the legislature was reinforced by the amendment
\n              effected by the said amending Act to Section 20 by introduction of the proviso
\n              and the Explanation thereto, wherein also it has been clearly indicated that in
\n              any pending case in any court the determination of juvenility of such a
\n              juvenile has to be in terms of Section 2 (l) even if the juvenile ceases to be so
\n              “on or before the date of commencement of this Act” and it was also
\n              indicated that the provisions of the Act would apply as if the said provisions
\n              had been in force for all purposes and at all material times when the alleged
\n              offence was committed.”\n<\/p><\/blockquote>\n
14. In the case of Jabar Singh Vs. Dinesh (supra) relied upon by the learned counsel for the
\nrespondent no.2 the Amendments of 2006 incorporated in the Act of 2000 were not taken into
\naccount and is silent in regard thereto, therefore, the view expressed in Hari Ram’s case
\n(supra), taking into account, the amendments would prevail.\n<\/p>\n
15. In view of the principles propounded in Hari Ram’s case (Supra) it is crystal clear that if
\nthe revisionist was less than 18 year on the date of occurrence, though the same took place
\nprior to the commencement of the Act 2000, he shall be treated as a juvenile and his case
\ncannot be discarded on account of the fact that he had become more than 18 years on the
\ncommencement of Act of 2000.\n<\/p>\n
16. The revision, therefore, succeeds and is allowed.\n<\/p>\n
17. The impugned order is set aside and the matter is remanded back to the Special Judge,
\n Gonda with the direction to reconsider the matter in the light of the observations made herein
\nabove and pass an appropriate order afresh in accordance with law after providing a
\nreasonable opportunity of hearing to the parties.\n<\/p>\n
Order Date :-12.7.2010
\nRKSh\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Sonu @ Avanish Shankar Tiwari vs State Of U.P. & Another on 12 July, 2010 Reserved Case :- CRIMINAL REVISION No. – 199 of 2010 Petitioner :- Sonu @ Avanish Shankar Tiwari Respondent :- State Of U.P. & Another Petitioner Counsel :- R.P. Mishra Respondent Counsel :- Govt. Advocate Hon’ble Shri Kant […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-123378","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nSonu @ Avanish Shankar Tiwari vs State Of U.P. & Another on 12 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sonu-avanish-shankar-tiwari-vs-state-of-u-p-another-on-12-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sonu @ Avanish Shankar Tiwari vs State Of U.P. & Another on 12 July, 2010 - 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