RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO.125 OF 2007 (Old No.214/1996) Fanu @ Irfan S/o Mahmood Ali R/o Village Belpur, P.S. Bhagwanpur, Distt. Hardwar …….. Revisionist Versus The State & another … Respondents Dated: March 09, 2009 Sri Sohail Siddiqui & Sri Vinay Kumar, learned counsel for the revisionist Sri M.A. Khan, learned brief holder for the State/Respondent No.1 None for respondent No.2 despite sufficient service HON. DHARAM VEER, J. This criminal revision, preferred by the revisionist under Section 38 of The Juvenile Justice Act, 1986 (hereinafter to be referred as the Act), is directed against the judgment and order dated 06.01.1996 passed by Ist Addl. Sessions Judge, Meerut in Criminal Appeal No.86/1995, Fanu @ Irfan Vs. State, as well as against the judgment and order dated 18.4.1995 passed by Principal Judicial Magistrate, Juvenile Court, Meerut Division, Meerut in Case No.19/9 of 1995. 2. I have heard Sri Sohail Siddiqui and Sri Vinay Kumar, Advocates for the revisionist and Sri M.A. Khan, Brief Holder for the State/Respondent No.1. None is present for respondent no.2 though service is reported 2 to be sufficient. Perused the entire material available on record. 3. In brief, the facts of the case are that on 21.10.1994, when Km. Farzana had gone in the sugarcane field, then the revisionist-accused Fanu had committed rape with her at about 3:00 P.M. On hearing the scream of victim, Daud and Janu reached on the place of occurrence. On seeing these persons, revisionist-accused Fanu ran away from the spot. After that the victim Farzana was taken to the village. Then the victim Farzana and those witnesses narrated the entire incident to the complainant Nisar, father of victim. With the same averments, an FIR was lodged by Nisar on 22.10.1994 at 12:10 P.M. at P.S. Bhagwanpur, Distt. Hardwar. The revisionist/accused-Fanu moved an application for declaring him Juvenile. After hearing counsel for the parties and appreciating the material on record, the learned Principal Judicial Magistrate, Juvenile Court, Meerut Division, Meerut vide his judgment and order dated 18.4.1995 dismissed the application of the revisionist-accused for declaring him juvenile. Against the said judgment and order-dated 18.4.1995, the revisionist-accused preferred an appeal u/s 37 of the Act before the court of Sessions Judge, Meerut which was transferred to I Addl. Sessions Judge, Meerut for disposal according to law. The said appeal was registered as Crl. Appeal No.86/1995. Learned I Addl. Sessions Judge, Meerut vide his judgment and order dated 06.1.1996 dismissed the appeal preferred by the revisionist/appellant. Against these two aforesaid orders dated 6.1.1996 and 18.4.1995, the revisionist preferred the present 3 revision before High Court of Judicature at Allahabad. The High Court of Judicature at Allahabad vide judgment and order dated 2.4.1996 has allowed the revision preferred by revisionist-accused and declared the revisionist-Fanu as a Juvenile. Against that order, respondent no.2-Nisar, complainant and father of victim, preferred a Criminal Appeal before Hon’ble the Supreme Court of India which was registered as Criminal Appeal No.1170/1997 (Arising out of SLP (Crl) No.3391/1996). The Hon’ble Supreme Court vide its judgment and order dated 5.12.1997 allowed the appeal preferred by respondent no.2-Nisar/complainant and the judgment and order dated 2.4.1996 passed by High Court of Judicature at Allahabad was set aside and the High Court was requested to re-hear the matter on priority and pass a proper order in accordance with law. Now, after the creation of State of Uttarakhand and as per Section 35(2) of the U.P. Re-Organization Act, 2000, the present revision has been transferred to this Court. 4. The word ‘Juvenile’ has been defined in Section 2(h) of the Act which reads as under: - “(h) “juvenile” means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years” 5. Learned Principal Judicial Magistrate, Juvenile Court, Meerut has dismissed the application of revisionist-accused for declaring him Juvenile on the ground that in the Electoral Roll, which was prepared on 1.1.1995, the age of the revisionist-accused-Fanu, 4 which finds place at Sl. No.197, has been shown as 18 years. Further in the Family Register, the date of birth of the revisionist-accused has been shown as 9.5.1977. According to this document, the age of the revisionist- accused on the date of occurrence was about 17 years. Even the learned Magistrate, before whom the revisionist-accused was present, was of the opinion that ostensibly the revisionist-accused does not seem to be juvenile which means that he is above 16 years of age. On the basis of the above-said position of the case, learned Magistrate has dismissed the application of the revisionist. 6. The revisionist has also filed in support of his case an age certificate issued by Chief Medical Officer, Hardwar in which the age of the revisionist-accused has been opined as about 15 years. To further support his case, the revisionist also produced a Leaving Certificate issued by Principal, Madarsa Gulzar Farid Piran Kaliyar, Distt. Hardwar in which the date of birth of revisionist- accused is mentioned as 20.01.1981. 7. The learned Principal Judicial Magistrate, Juvenile Court, Meerut has not relied the documents produced by the revisionist on the ground that as per the medical certificate, the age of the revisionist- accused is about 15 years. It is settled law that two years age margin can be given on the either side. If two years age margin would be given on the higher side, then the revisionist is aged about 17 years and this fact gets corroboration from the Electoral Roll, Family Register as well as from the observation made by learned Magistrate about the age of revisionist. 5 8. With regard to the School Leaving Certificate issued by Principal, Madarsa Gulzar Fareed Peeran Kaliyar (Hardwar), Sri Shakeel Hasan, Principal was examined before the Principal Judicial Magistrate, Juvenile Court, Meerut. He has stated in his cross- examination that at the time of admission, the father of revisionist-accused had not produced any proof relating to date of birth of revisionist-accused and whatever the date of birth of revisionist-accused was written by the father of revisionist-accused, that was considered as true by him. He further stated that he had not brought any document in the court from which it can be derived that the school is a recognized school. Thus, the school leaving certificate being that of some unrecognized and un-aided school also does not seem to be reliable. 9. As such on the basis of the above-said discussion, as the school was not recognized and even as per settled law, if two years age margin would be given in the age of revisionist on the higher side as has been shown in the medical certificate, then certainly the revisionist was about 17 years of age i.e. more than 16 years on the date of incident i.e. on 21.10.1994. Since, the learned Magistrate was of the view after seeing the revisionist-accused that he was not a juvenile i.e. more than 16 years of age and the entry in Family Register as well as Electoral Roll also supported the view, therefore, I also concur the view taken by learned Magistrate for not declaring the revisionist-accused as Juvenile which was subsequently affirmed by learned I Addl. Sessions Judge, Meerut. 6 10. In view of the above-said discussion, I do not find any illegality, impropriety or incorrectness in the impugned judgments and order dated 18.04.1995 passed by Principal Judicial Magistrate, Juvenile Court, Meerut Division, Meerut as well as in the judgment and order dated 6.1.1996 passed by I Addl. Sessions Judge, Meerut. 11. For the reasons as recorded above, the revision is devoid of merits and is accordingly dismissed. The judgment and order dated 18.04.1995 passed by Principal Judicial Magistrate, Juvenile Court, Meerut Division, Meerut as well as the judgment and order dated 6.1.1996 passed by I Addl. Sessions Judge, Meerut, are hereby affirmed. 12. Let the record of the case be sent back to the court concerned for compliance of the order forthwith. (Dharam Veer, J.) March 09, 2009 Rajeev Dang