Allahabad High Court
Rajiullah @ Khurshid vs State Of U.P. And Another on 22 August, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:144857 Reserved on : 04.08.2025 Delivered on : 22.08.2025 Court No. - 80 Case :- APPLICATION U/S 482 No. - 24289 of 2024 Applicant :- Rajiullah @ Khurshid Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dr. C.P. Upadhyay,Mumtaz Ahmad Siddiqui Counsel for Opposite Party :- Amit Daga,G.A.,Harbansh Prasad Pandey Hon'ble Rajeev Misra,J.
1. Heard Dr. C.P. Upadhyay, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Amit Daga, the learned counsel representing first informant/opposite party-2.
2. Perused the record.
3. Applicant-Rajiullah @ Khurshid, who is a named as well as charge-sheeted accused and also facing trial before court below, has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:
“It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to allow the present application and quash/ set aside the order dated 03.07.20240 and 29.05.2024 by which the learned Trail court Passed conditinal order passed in Special Sessions Trial No. 331/2022 (State v. Rajiullah @ Khurshid and others) arising out of Case Crime No.173 of 2022 U/s 363, 504, 338, 376 DA, 377, 323 I.P.C and Section 5/6 of POCSO Act P.S.-Shankargarh, District-Prayagraj.
It is further prayed that this Hon’ble court may be graciously be pleased to stay the effect and operation of the order dated 03.07.2024 and 29.05.2024 by which the learned Trial Court passed conditional order, passed in Special Sessions Trial No 331/2022 (State v. Rajiullah @ Khurshid and others) arising out of Case Crime No.173 of 2022 U/s 363, 504, 338, 376 DA, 377, 323 I.P.C and Section 5/6 of POCSO Act P.S.-Shankargarh, District- Prayagraj during pendency of the present application, otherwise, the applicant shall suffer irreparable loss and injury, and/or pass such other and further orders which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”
4. It transpires from record that in respect of an incident, which is alleged to have occurred on 21.06.2022, a delayed F.I.R. dated 26.06.2022 was lodged by first informant/opposite party-2, Akbar Ali (father of the prosecutrix) and was registered as Case Crime No.0173 of 2022 under Sections 363, 504 I.P.C, P.S.-Shankargarh, District-Prayagraj. In the aforesaid F.I.R. three persons namely Nazim, Hashim and Khurshid were nominated as named accused.
5. As per the prosecution story as unfolded in the F.I.R. dated 26.06.2022, named accused are alleged to have enticed away the minor daughter of the first informant/opposite party-2 namely X aged about 15 years.
6. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He recorded the statements of first informant/prosecutrix and other witnesses under Section 161 Cr.P.C. The prosecutrix in her aforesaid statement has fully supported the F.I.R. Investigating Officer also recovered the High School Certificate/Mark-sheet of the prosecutrix wherein her date of birth is recorded as 01.01.2007. Photocopy of the High School Certificate/Marksheet of the prosecutrix has also been brought on record and is appended at page 62 of the paper book. Subsequent to above, the prosecutrix was medically examined. Her Medico Legal Examination Report is also on record as annexure-3 to the affidavit filed in support of present application. As per the said report, injuries were found on the body of the prosecutrix. With regard to the private part of the prosecutrix, the Doctor has opined as follows:
“Hymen-Menstruation is going on.Torned and healed ”
Thereafter statement of the prosecutrix was recorded under Section 164 Cr.P.C., which is on record as Annexure-4 to the affidavit filed in support of this application. The prosecutrix in her aforesaid statement has rejoined her previous statement under Section 161 Cr.P.C. and has clearly implicated the applicant for dislodging her modesty by committing rape upon her. On the basis of above and other material collected by him during course of investigation, Investigating Officer, came to the conclusion that offence complained of is fully established against accused/applicant. He, therefore, opined to submit a charge-sheet. Accordingly, Investigating Officer submitted the charge sheet/police report dated 28.01.2021 in terms of Section 173 (2) Cr.P.C. whereby only one of the named accused i.e. Rajiullah @ Khurshid (applicant herein) was charge sheeted under Sections 363, 504, 338, 376 DA, 377, 323 I.P.C and Section 5/6 of POCSO Act. The other two named accused appear to have been exculpated.
7. After submission of aforementioned charge-sheet/police report, cognizance was taken upon same by Court concerned in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C. Resultantly Special Sessions Trial No. 331 of 2022 (State v. Rajiullah @ Khurshid and others) under Sections 363, 504, 338, 376 DA, 377, 323 I.P.C and Section 5/6 of POCSO Act P.S.-Shankargarh, District-Prayagraj came to be registered.
8.The concerned Special Judge proceeded with the trial. He accordingly framed charges against charge-sheeted accused i.e. applicant. Applicant denied the charges so framed against him and demanded trial. Resultantly, the trial procedure commenced.
9. Prosecution in discharge of its burden to bring home the charges so framed, adduced the prosecutrix as P.W.-1. The prosecutrix in her deposition before court below has supported the F.I.R. and further implicated the applicant in the crime in question. However, in her deposition, the prosecutrix has stated certain facts adverse to herself regarding the Institution where she had studied/ where she had not studied and further that she had failed while pursuing her studies.
10. At this juncture, an application dated 28.02.2024 was filed by accused/applicant before court below with the prayer that medical determination regarding age of prosecutrix be conducted by directing X-Ray of the prosecutrix and further to obtain a report from the Chief Medical Officer, Prayagraj regarding medical determination of age of the prosecutrix.
11. Aforementioned application filed by accused/applicant was opposed by the prosecution. However, no written objections to the same were filed by the prosecution/first informant/opposite party-2.
12. Ultimately, court below vide order dated 29.05.2024 allowed the said application but with the rider that medical determination of age of the prosecutrix can be undertaken provided the parents of the prosecutrix agree to the same.
13. It appears that no consent was given by the parents of the prosecutrix regarding medical determination of age of the prosecutrix. Resultantly, no exercise in that regard could be undertaken.
14. Subsequent to above, another application dated 21.06.2024 was filed by the accused/applicant before court below with the prayer that for getting the medical determination of age of the prosecutrix, directions be issued to the Investigating Officer/ S. H. O., Shankargarh to get X-Ray of the prosecutrix done and on basis of the said X-Ray report, the Chief Medical Officer, Prayagraj be directed to determine the age of the prosecutrix so that justice be done.
15. Aforementioned application dated 21.06.2024 filed by accused/applicant came to be rejected by court below vide order dated 03.07.2024, on the findings that previously the accused/applicant had filed an application dated 29.05.2024 for medical determination of age of the prosecutrix, the same was allowed but it was directed that medical determination of the age of prosecutrix shall be conducted only when consent regarding same is accorded by the parents of the prosecutrix. The medical determination of age of the prosecutrix cannot be directed to be conducted mandatorily. What will be the effect of the refusal of the parents of the prosecutrix to get medical determination of age of the prosecutrix done shall be determined at the time of the judgement in the trial. The certificates pertaining to Educational Qualifications of the prosecutrix are on record and defence will have adequate opportunity to contradict the same. As per Section 34 (2) of the POCSO Act, the age of the prosecutrix has to be determined upon the evidence but at the time of judgement.
16. Thus feeling aggrieved by the orders dated 03.07.2024 and 29.05.2024 passed by court below i.e. the Additional Sessions Judge/ Additional Special Judge, POCSO Act, Court no.2, Prayagraj, accused/applicant has now approached this Court by means of present application under Section 482 Cr.P.C.
17. Dr. C. P. Upadhyay, the learned counsel for accused/applicant in challenge to the orders impugned contended that the orders impugned in present application are manifestly illegal and therefore liable to be quashed by this Court. In furtherance of aforesaid submission, it was further contended by the learned counsel for applicant that the High School Mark-sheet/Certificate of the prosecutrix was recovered during the course of investigation. Same has also been brought on record of present application and is appended at page 62 of the paper book. As per said certificate, the date of birth of the prosecutrix recorded therein is 01.01.2007 whereas the occurrence giving rise to present criminal proceedings is alleged to have occurred on 21.06.2022. As such, the prosecutrix was aged about 15 years, 5 months and few days on the date of occurrence. However, inspite of the High School Certificate of the prosecutrix being available on record no credence can be attached to the same nor can the age of the prosecutrix be determined with reference to her date of birth recorded therein. Elaborating his submission, the learned counsel for applicant submitted that since the prosecutrix in her deposition before court below, copy of which is on record at page 67 of the paper book, has herself stated that she has not studied in the institutions, in respect of which the school leaving certificates etc. have been brought on record, which are at pages 55, 56, 58 of the paper book, she had studied in another institution and further that she had failed while pursuing her studies, therefore, it cannot be said that the date of birth of the prosecutrix has been correctly recorded in the High School Certificate of the prosecutrix. As such, the date of birth of the prosecutrix recorded in the High School Certificate is doubtful and thus unworthy of credit. It was on account of above, the application dated 28.02.2024 was filed by accused-applicant before Court below for a direction to get medical determination of age of the prosecutrix. Court below also allowed the said application but with the rider that medical determination of age of the prosecutrix shall be undertaken only when the parents of the prosecutrix accord their consent. He would thus submit that once Court below itself came to the conclusion that medical determination of age of the prosecutrix can be directed to ascertain the true age of the prosecutrix, therefore, the rider imposed in the order dated 29.05.2024 that medical determination of age of the prosecutrix can be conducted provided the parents of the prosecutrix agreed to the same is also manifestly illegal and arbitrary. On the above conspectus, he, therefore, submits that orders impugned in present application are liable to be quashed by this Court. .
18. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the present application. Learned A.G.A. submitted that since part of the order dated 29.05.2024 passed by court below is in favour of applicant, therefore, the prayer prayed for by means of present application to quash the order dated 29.05.2024 appears to be misconceived. It is then contended by the learned A.G.A. that in view of the fact that High School Certificate of the prosecutrix is available on record, therefore, no good ground exists to get the age of the prosecutrix determined by way of medical determination of age. The subsequent application dated 21.06.2024 filed by accused/applicant was rightly rejected by court below as being not maintainable. On the above premise, the learned A.G.A. thus contended that no good or sufficient ground has emerged on record to quash the orders impugned in present application. As such, the present application is liable to be dismissed by this Court.
19. Mr. Amit Daga, the learned counsel representing first informant/opposite party-2 has also opposed the present application. He has adopted the arguments raised by the learned A.G.A in opposition to this application. In additional to above, he submits that the date of birth of the prosecutrix recorded in the certificates issued by the Institutions previously attended by the prosecutrix is similar to the date of birth of the prosecutrix recorded in the High School Certificate/Marks-sheet of the prosecutrix. In support of above, he has invited the attention of Court to the documents occurring at pages 55, 56, 58 and 59 of the paper book. He, therefore, submits that once the documentary evidence, which can be relied upon for determination of the age of the prosecutrix is on record i.e. High School Certificate and the date of birth of the prosecutrix recorded therein is similar to her date of birth mentioned in the documents issued by the Institutions previously attended by the prosecutrix, therefore, it cannot be said that the date of birth of the prosecutrix recorded in the High School Certificate is doubtful. Since no documentary evidence exists on record contradicting the date of birth of the prosecutrix recorded in the High School Certificate, therefore, the prayer made by accused/applicant for medical determination of age of the prosecutrix is wholly misconceived. In view of above, no medical determination of age of the prosecutrix in law is permissible. As such, no illegality can be attached to the orders impugned. It was thus contended by the learned counsel for first informant/opposite party-2 that present application is liable to be dismissed by this Court..
20. Before proceeding to consider the rival submissions, it is necessary to note the provisions under which the age of the prosecutrix /victim/child under the POCSO Act can be determined. The Apex Court in the case of Jarnail Singh Vs. State of Haryana, (2013) 7SCC 263, has held that the age of the prosecutrix/victim/child under the POCSO Act has to be determined in accordance with the procedure provided in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. Since the Juvenile Justice (Care and Protection of Children) Act, 2000 has already been repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the Act of 2015), therefore, by necessary implication, the age of the prosecutrix/victim/child under the POCSO Act (on the date of occurrence) can be determined only with reference to Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The judgement rendered in the case of Jarnail Singh (Supra) has been reaffirmed/followed in the subsequent judgements of Supreme Court in (i) Mahadeo S/o Kerba Maske Vs. State of Maharashtra and another, (2013) 14 SCC 637 (ii) State of Madhya Pradesh Vs. Anoop Singh (2015) 7 SCC 773.
21. For ready reference Section 94 of the Act of 2015 is reproduced herein under:
“Section 94 – Presumption and determination of age-
(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(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 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.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.”
22. It is apposite to mention here that the provisions contained in Section 94 of the Act, 2015 operate in a preferential manner. Meaning thereby that the court shall first endeavour to decide the age of the prosecutrix/victim/child with reference to the date of birth of the prosecutrix/victim/child recorded in documents mentioned in Section 94 (2) (i) of the Act, 2015. Only in case no document as mentioned in Section 94 (2) (i) is available that court can take recourse to Section 94 (2) (ii) of the Act, 2015. However, in case no document as mentioned in Section 94 (2) (ii) of Act, 2015 is available then as a last resort, court can get the age of the prosecutrix/victim/child determined mandatorily as per the mandate of Section 94 (2) (iii) of the Act of 2015.But in no circumstances, the age of the prosecutrix/victim/child can be determined by both ways i.e with reference to the date of birth recorded in the documents recognized under Section 94 of the Act of 2015 and by medical determination of age.
23. Subsequently, the Supreme Court, in P. Yuvaprakash Vs. State of M.P., 2023 SCC Online SC 846, considered the true import of the provisions contained in Section 94 of the Act, 2015. Court upon a holistic view of the provisions contained in Section 94 of the Act, 2015 ultimately denuded that as per the framework of Section 94 of the Act, 2015 only three categories of documents are recognized therein for determining the age of the prosecutrix/victim/child. At this juncture, it would be appropriate to reproduce the relevant observations made by Court itself in paragraphs 11, 12, 13, 14 and 19 of the aforesaid report. Accordingly, paragraphs 11, 12, 13, 14 and 19 of the aforesaid report are reproduced herein below :-
“11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act which reads as follows:
34. Procedure in case of commission of offence by child and determination of age by Special Court. ? (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).
(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.
(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.
12. In view of Section 34 (1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:
94. Presumption and determination of age. ? (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(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 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.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:
(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.
14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through ?an ossification test? or ?any other latest medical age determination test? conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.
19. It is clear from the above narrative that none of the documents produced during the trial answered the description of ?the date of birth certificate from the school? or ?the matriculation or equivalent certificate? from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim?s age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating ?that the age of the said girl would be more than 18 years and less than 20 years?. In the cross-examination, she admitted that M?s age could be taken as 19 years. However, the High Court rejected this evidence, saying that ?when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor?. This finding is, in this court?s considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim?s bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9.”
24. It is thus apparent that the age of the prosecutrix/victim/child under the POCSO Act can be determined only in accordance with the provisions of Section 94 the Act of 2015. Since the provisions contained in Section 94 operate in a preferential manner, therefore, the same have to be applied in a preferential manner. Meaning thereby that the provisions contained in Section 94(2)(i) of the Act of 2015 shall have preference over Section 94(2)(ii) of the said Act and aforesaid provision shall have preference over Section 94(2)(iii) of the Act of 2015. In view of aforementioned scheme of the Act, Court is required to determine the age of the prosecutrix/victim/child under the POCSO Act with reference to his/her date of birth recorded in any document mentioned under Section 94(2)(i) of the Act of 2015. Only when, document mentioned under Section 94(2)(i) of the Act is available, Court can proceed to determine the age of the prosecutrix/victim/child with reference to his/her date of birth recorded in any document described under Section 94(2)(ii) of the Act of 2015. However, in case, no document as detailed in Section 94(2)(ii) of the Act of 2015 is available then as a last resort, Court can resort to the provisions of Section 94(2)(ii) of the Act of 2015, which provides for medical determination of age. However, in no circumstance, the age of the prosecutrix can be determined with reference to his/her date of birth recorded in any document recognized under Section 94(2)(i) and 94(2)(ii) of the Act of 2015 and by way of medical determination of age simultaneously.
25. Therefore, once the High School Certificate of the prosecutrix is available on record, which document is higher in the order of preference then other mode available for determining the age of the prosecutrix cannot be undertaken. In view of above, no medical determination of the age of the prosecutrix could have been directed by Court below. As such, the direction contained in the order dated 29.05.2024 passed by Court below that medical determination of age of the prosecutrix can be undertaken provided the parents of the prosecutix give their consent is itself wholly illegal. As such, no benefit can be derived by the accused/applicant from the same.
26. Coming to the second aspect of the matter that as per the statement of the prosecutrix, certain adverse facts have emerged in the deposition of the prosecutrix and therefore, medical determination of age of the prosecutrix was required appears to be fanciful and attractive but devoid of substance. In the absence of any cogent and reliable evidence adduced on behalf of the accused/applicant in rebuttal to the date of birth of the prosecutrix recorded in the High School Certificate, no direction can be issued to declare the age of the prosecutrix by way of medical determination of age of the prosecutrix. The certificates issued by the Institution previously attended by the prosecutrix mention the same date of birth of the prosecutrix as recorded in her High School Certificate.
27. A case near to the issue involved in present case came up for determination before the Apex Court in Sanjeev Kumar Gupta Vs. State of U.P. and Others, (2019) 12 SCC 370.
28. In aforementioned case, two different dates of birth of the accused were recorded. In the High School Certificate of the accused, the date of birth recorded was 17.12.1998, whereas in the application for Aadhar Card and Driving Licence, the date of birth declared was 17.12.1995. The prosecution had seriously opposed the claim of the accused that he is a juvenile, which was admittedly based on the date of birth of deceased recorded in the High School Certificate. Accordingly, the Apex Court observed that the burden is upon the accused to show/establish as to how the date of birth 17.12.1998 came to be recorded in the High School Certificate. Paragraphs 17, 18, 19, 20 and 21 of the report are relevant in respect of the controversy in hand. Accordingly, the same are extracted herein under:-
17. The 2015 Act came into force on 15-1-2016. Section 111 repeals the earlier the 2000 Act but stipulates that despite the repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of the new legislation. Section 94 contains provisions in regard to the determination of age, is in the following terms:
94. Presumption and determination of age.(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age.
(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 Examination Board concerned, 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 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.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the Examination Board concerned in the same category [namely (i) above]. In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the 2007 Rules made under the 2000 Act. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.
18. Ms Jaiswal submitted that Section 94 deals with a matter of procedure. Hence, it was urged that though the incident in the present case is alleged to have taken place on 18-8-2015 and the application claiming the benefit of juvenility was submitted on 9-12-2015, the application should be governed by the provisions of Section 94 and not by Section 12(3) of the 2007 Rules. For the purpose of the present case, we have proceeded to analyse the facts on the basis of the provisions of Rule 12(3) of the 2007 Rules (as was urged on behalf of the second respondent). We have, as will be analysed hereafter, come to the conclusion that even on that basis, the second respondent was not a juvenile on the date of the incident. In other words, whether the case is approached from the standpoint of Rule 12(3) of the 2007 Rules or Section 94(2) of the 2015 Act does not ultimately make any difference to the conclusion.
19. Now it is in this background that it becomes necessary for the Court to determine whether the High Court, in the exercise of its revisional jurisdiction, was justified in reversing the view of the learned Sessions Judge that the second respondent was not a juvenile on the date of the incident. In seeking to place reliance on the date of birth (17-12-1998) recorded in the CBSE matriculation certificate, the learned counsel appearing on behalf of the second respondent has submitted that under the provisions of Rule 12(3)(a) the said certificate has precedence over any other evidentiary document. In the course of the hearing of the appeal, we directed the CBSE to produce its records and to file an affidavit indicating the basis on which the date of birth was recorded in the matriculation certificate. The affidavit filed by the CBSE indicates that the date of birth in the records maintained by the CBSE was recorded purely on the basis of the final list of students forwarded by Maa Anjani Senior Secondary School, Etah Road, Shikohabad.
20. The affidavit of the Assistant Secretary, CBSE states: Maa Anjani Senior Secondary School, Etah Road, Shikohabad, sent final list of students registered for Class IX (2011-12) as (eligible for Class X Examination Year 2013) of the School to the Central Board of Secondary Education, Regional Office, Allahabad. In the said final list of students registered for Class IX (2011-12) (eligible for Class X Examination for year 2013) at Serial No. 00068 shows the name of Puneet Yadav, son of Shri Rameshwar Singh and Smt Vishesh Devi and his date of birth has been shown as 17-12-1998 which contains the signature and photograph of Puneet Yadav. The date of entry has been shown as 8-9-2011.
***
the Principal, Maa Anjani Senior Secondary School, Shikohabad, vide letter dated 4-2-2013 sent Roll Number-wise List of 248 candidates for Class X-2013 to the Assistant Secretary (Examination), CBSE, Allahabad. Name of Puneet Yadav, son of Rameshwar Singh and Mrs Vishesh Devi, Roll No. 5156848 has been shown with date of birth as 17-12-1998 at p. 896 of the list, with the signature of Puneet Yadav.
***
the Certificate for Secondary School Examination (Session 2011-13) (true copy of which was been appended as Annexure CA-1 received by the Central Board of Secondary Education with the order dated 16-4-2019 [Sanjeev Kumar Gupta v. State of U.P., 2019 SCC OnLine SC 980] of this Hon’ble Court) showing the date of birth of Puneet Yadav as 17-12-1998 was issued on the basis of aforementioned records of the Central Board of Secondary Education.
21. CBSE has stated before this Court that the date recorded in the matriculation certificate was purely on the basis of the final list of students forwarded by the Headmistress of Maa Anjani Senior Secondary School, Shikohabad. The Headmistress of Maa Anjani Senior Secondary School, Shikohabad deposed during the enquiry before the JJB, Firozabad. In the course of her examination, Headmistress Dipti Solanki stated:
We note down the date of birth of the student at the time of admission as per the information given by the parents and at the same time we obtain an affidavit but we could not procure an affidavit from this student. I have committed a mistake by not procuring an affidavit from this student. The date of birth was entered on the basis of the information given by the parent/father.
The Headmistress further stated:
The father did not produce any record at the time of admission in respect of the date of birth of the student. They would have been asked to produce the record of Class 4 at the time of admission but they did not. I cannot tell the reason thereof. The students are admitted without any document up to Class 5.
The above deposition indicates that the second respondent was admitted to Maa Anjani Senior Secondary School, Shikohabad in the fifth standard and was a student of the school until he completed his matriculation. The second respondent attended Saket Vidya Sthali, Jedajhal, Firozabad until the fourth standard. The school register and transfer certificate form of that school specifically contain an entry in regard to the date of birth of the second respondent as 17-12-1995.
29. It is thus apparent that except for the date of birth of the prosecutrix recorded in the High School Certificate, there is no other date of birth of the prosecutrix on record. In view of above, none of the grounds urged by the learned counsel for applicant for getting the age of the prosecutrix declared by medical determination of age are cogent and sufficient enough to allow the present application.
30. In view of the discussion made above, this Court finds that no illegality has been committed by Court below in passing the order dated 03.07.2024. Moreover, the order dated 29.05.2024 is itself illegal, as such, no right accrue in favour of accused/applicant to seek medical determination of age of the proecutrix on the basis of said order. Since the High School Certificate of the prosecutrix is on record and there being no documentary evidence on record to contradict the date of birth of the prosecutrix recorded therein, therefore, as per the mandatory scheme of Section 94 of the Act of 2015, no direction in that regard i.e. medical determination of age of the prosecutrix can be issued.
31. As a result, the present application fails and is liable to be dismissed.
32. It is, accordingly, dismissed.
Order Date :- 22.08.2025
Vinay