The Allahabad High Court has ordered the trial court to again hear the case against a man accused of rape, cheating, POCSO in Kakod police station of Bulandshahr. .
A single-judge bench of Justice Rahul Chaturvedi passed this order while hearing a Criminal Revision defective filed by Naushad Ali.
By filing the criminal revision, the revisionist is challenging the validity and legality of order dated 07.12.2019 passed by the Special Judge, POCSO Act/Additional Sessions Judge, Bulandshahar in Criminal Case under Sections 363, 366, 376, 120B, 420 I.P.C and Section 4 of POCSO Act, P.S. Kakod, District Bulandshahr, whereby application moved on behalf of revisionist for declaring him to be juvenile has been rejected.
“I have perused the order impugned, whereby the application moved by Smt Sabra, mother of the revisionist, has been rejected holding that on the date of incident the revisionist was major one as his date of birth is 7.4.1994”
-the trial court observed.
The Court noted,
“The counsel for the revisionist has drawn attention of the Court to the provisions of Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 which reads thus:
“94 (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 an age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.”
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Counsel for the revisionist has also drawn attention of the Court to the High School Certificate of the revisionist, whereby it is clear that the revisionist Naushad Ali has passed the High School Examination, 2015 from the Board of High School and Intermediate Education UP and in the certificate his date of birth is mentioned as 4.3.2001.
Submission is that the Special Judge while determining the age of revisionist has not taken into account either of the documents as enumerated in Section 94(2) of the Juvenile Justice Act, 2015 and declined to declare him (revisionist) juvenile.
The Court observed that the Special Judge, POCSO Act has grossly erred in law while relying upon the Learning License of the revisionist and Voter ID card, because none of these documents should be taken into account while determining the age of a juvenile. When in the High School Certificate the age of the revisionist is mentioned, which is available before the learned Special Judge, POCSO Act, he has to determine the age of the revisionist after taking into account the High School Certificate alone, but he has not done so and has wrongly rejected the claim of juvenility relying upon the documents which are not categorized in the Act of 2015.
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“Under the circumstances, the order dated 07.12.2019 passed by the Special Judge, POCSO Act/Additional Sessions Judge, Bulandshahar is hereby quashed and the matter is remanded back to the Special Judge, POCSO Act/Additional Sessions Judge, Bulandshahar with a direction to re-consider and re-visit the entire matter once again and decide the matter afresh, after taking into account the High School Certificate of the revisionist and authenticating and evaluating its genuineness, by passing a well reasoned order on merits strictly in accordance with law within a period of eight weeks from the production of certified copy of the order”
-the Court ordered.
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