1. This revision under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the ''Act') is directed against the order dated 21.7.2010 passed by Addl. Sessions Judge, Court No. 3, Farrukhabad, whereby the application 36-B filed by the accused Rohit @ Abhishek Shukla for declaring him a juvenile in conflict with law was rejected.
2. Heard Sri Ram Raj Pandey, learned counsel for the revisionist and learned AGA for the State.
3. The facts are that revisionist is an accused in the aforesaid Sessions Trial. During the course of trial, an application 36-B was moved on behalf of accused Rohit @ Abhishek Shukla for declaring him a juvenile on the ground that his date of birth was 1.12.1986 and on the date of incident i.e. 26.6.2002, he was about 15 years of age. A copy of the Scholar Register and transfer certificate form issued by Sri Baba Shanker Giri Junior High School, village- Timrua and High School Mark-sheet of 2005 issued by Principal Maiku Singh Yadav Inter College, Satya Nagar, Musepura, Etah were also filed to show that the date of birth of the revisionist was 1.12.1986.
4. Objections were filed by the prosecution on the ground that copy of the Scholar Register and Mark-sheet were forged and original documents should be summoned. The accused was major at the time of incident. The name of the accused is Rohit whereas the educational certificates and the mark-sheet are in the name of Abhishik Shukla.
5. Learned Addl. Sessions Judge examined one Khan Singh Botham, teacher in Baba Shanker Junior High School and came to the conclusion that in the records of the Sessions trial, name of the accused is Rohik Shukla. Even in the application of recall of warrant, affidavit, personal bond and other documents, the name of the accused has been mentioned as Rohit Shukla s/o Vimlesh Chand Shukla and the name Rohit @ Abhishek Shukla has not been mentioned in any of the document or vakalatnama. Learned Addl. Sessions Judge also observed that brother of the revisionist had already been declared a juvenile. This application was moved after evidence of P.W.-1 was recorded and the application was moved simply to get benefit of the Act. Therefore, application was rejected. Hence this revision.
6. Learned counsel for the revisionist submitted that name of the accused-revisionist is Rohit @ Abhishek Shukla and the educational certificates i.e. copy of the Scholar Register and Transfer Certificate Form and the High School Mark-sheet are his educational documents and did not belong to any other person. The revisionist is known as Rohit Shukla as well as by the name of Abhishek Shukla. Learned counsel submitted that under Section 7-A of the Act, no proper enquiry was conducted by learned Sessions Judge. As per the copy of the Scholar Register, the name of the student is recorded as Abhishek Shukla and names of the parents of the student are recorded as Smt. Kunti Shukla and Sri Vimlesh Chand Shukla, who are the parents of the revisionist. Besides revisionist, there is no other son of his parents by the name of the Abhishek Shukla. If there was any doubt regarding identity of the revisionist as to whether the revisionist is not Abhishek Shukla, a proper enquiry must have been conducted by learned Sessions Judge. In this respect the application of the revisionist could not have been dismissed by learned Addl. Sessions Judge without proper enquiry.
7. The contention is that the educational certificate belong to the son of Kunti and Vimlesh Chand Shukla, who are admittedly the parents of the revisionist. It is not the case of the State and complainant that there is some other brother of the revisionist by the name of Abhishek shukla. Therefore, learned trial court should have held that Abhishek Shukla and Rohit Shukla are one and the same person. The parents of the revisionists could have been examined by the trial court and the police could also have been directed to make an enquiry as to whether the educational certificates or mark-sheet belong to the revisionist or not and the application of the revisionist should not have been dismissed merely on the basis that the name of the accused in the record of the Sessions Trial i.e. personal bond, application for warrant recall and charge-sheet etc. is Rohit Shukla whereas the certificate and the mark-sheet belong to one Abhishek Shukla. Learned counsel further submitted that it was the duty of the prosecution to establish that Abhishek Shukla is some one else other than the revisionist.
8. Learned AGA supported the impugned order. Section
9. Section 7-A of the Act provides as under :-
"7-A Procedure to be followed when claim of juvenility is raised before any Court.- (1) Whether a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be :
Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect."
10. According to Section 7A of the Act, the claim of the juvenility may be raised before any court at any stage. Therefore it cannot be a ground to reject the application that the application has been filed after start of evidence. When a claim of juvenility is raised before any court, the court is bound to hold an enquiry and to take such evidence as may be necessary (but not an affidavit), so as to determine the age of the accused on the date of incident. It was the specific case of the revisionist in the application that his name is Rohit @ Abhishek Shukla and there was a dispute regarding identity of the accused as to whether he was Rohit or Abhishek Shukla or was known by both names, it was the duty of the trial court to hold a proper enquiry on this question and it should have recorded the statements of parents of the accused to find out correct truth and also to direct the prosecution to lead evidence on the basis of which prosecution claimed that the revisionist was not Abhishek Shukla. Simply because the name of the accused in the records of the Sessions Trial is Rohit Shukla, it does not prove that he is not Abhishek Shukla. Learned Sessions Judge could have also directed the police to conduct an enquiry as to whether Abhishek Shukla and Rohit Shukla are different persons or one and the same person. Description of names of the parents in the Scholar Register clearly indicates that this certificate has been issued in respect of Abhishek Shukla, who was the son of the parents of the revisionist. It is not the case of the prosecution or the complainant that Rohit Shukla is another son of parents of the revisionist. The police could have found that Abhishek Shukla is another son of the parents of the revisionist or some other person on the basis of interrogation of proper persons and the trial court should have examined those persons but nothing was done by learned trial court. Learned Trial court appears to have been in a hurry to dispose of the application without proper enquiry. If the case of the prosecution was that the educational certificates and the mark-sheet belong to some other person, the prosecution could have been directed to summon and produce the said person in Court. The rejection of the application of the revisionist without any evidence on this point was not at all justified. The clerk or the Principal of the Maiku Singh Inter College of district Etah should also have been summoned. Moreover on the medical examination of the revisionist by a duly constituted board should also have been directed by learned Sessions Judge to ascertain the age of the revisionist.
11. It will not be out of place to mention that in an enquiry under Section 7A of the Act, the trial court has to play an active role and is not a silent spectator or a referee between two rival parties. It is duty of the trial court to actively participate in the proceedings and may summon any witness necessary for just decision of the case.
12. In view of the aforesaid, the order passed by the learned Addl. Sessions Judge cannot be sustained.
13. The revision is allowed. The impugned order dated 21.7.2010 is set aside. Learned Addl. Sessions Judge is directed to decide the application 36-B afresh after holding a proper enquiry as envisaged under Section 7A of the Act and rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, after recording the specific finding on the basis of evidence as to whether Rohit Shukla and Abhishek Shukla is one and the same person or are different persons. If Abhishek Shukla is a different person, his statement should also be recorded by the trial court and the burden of producing him shall be on the prosecution, who disputes the educational certificate. However, the burden of proving the fact that Abhishek Shukla and Rohit Shukla are one and the same person shall be on the revisionist.