Point of Law: where it was found on enquiry that educational certificates were fabricated or manipulated, the Court could discard the date of birth as reflected therein.

JUDGMENT :

SANGEETA CHANDRA, J.

1. Heard learned counsel for the revisionist and learned A.G.A. for the State.

2. This Revision has been filed by the revisionist under Section 401 Cr.P.C. against the order dated 05.12.2020 passed by the learned Chief Judicial Magistrate Bahraich in Case Crime No. 715 of 2020 under Sections 363 and 366 I.P.C. Police Station Nanpara, District Bahraich.

3. It has been submitted by learned counsel for the revisionist that the revisionist's daughter was kidnapped by the opposite party no. 2 on 16.11.2020 when she was aged about 14 years. The revisionist lodged an F.I.R. on 16.11.2020. During investigation, the Investigating Officer produced the minor daughter of the revisionist before the Chief Judicial Magistrate Bahraich. The Revisionist gave an application before the Chief Judicial Magistrate Bahraich for custody of daughter because he was the lawful guardian of her daughter. The date of birth of the daughter was 08.03.2006 as per record of the School. Learned Chief Judicial Magistrate in determining the age of the daughter of the revisionist summoned the Head Master of Primary School who in his statement before the learned trial court corroborated that as per the school record, the date of birth of the daughter/victim was 08.03.2006. Despite such statement made by the Head Master and availability of the certificate issued from the School, the Chief Judicial Magistrate Bahraich passed the order dated 05.12.2020. Such order is against the correct position on law as in the new Juvenile Justice Act, 2015, Section 94 clearly provides the parameters to determine the age of a child in need of care and protection.

4. It has been argued that learned trial court has cited judgments for coming to the conclusion that the daughter of the revisionist was major which are not applicable as such judgments were rendered before the Juvenile Justice Act, 2015. Under the new Act, the Date of Birth certificate from the School or the Matriculation or equivalent certificate from the concerned Examination Board and in absence thereof, the birth certificate issued by Municipal Authorities would be the determining factor and in absence of such certificate being available, the age has to be determined by ossification test or any other advanced medical test.

5. Learned counsel for the revisionist has also placed reliance upon a Division Bench judgment rendered by this Court in Habeas Corpus Writ Petition No. 390 of 2021, Vandana @ Bandana Saini and Another vs. State of U.P. and Others, decided on 30.06.2021, wherein the petitioner no. 1 through her alleged husband petitioner no. 2, had filed the Habeas Corpus petition saying that she had been wrongly sent to the custody of Superintendent of Government Women's Asylum Khuldabad, District Prayagraj by an order dated 25.12.2020 passed by the Judge, Child Welfare Committee, Fatehpur. The medical report had stated the age of the detenue to be as 19 years and thus it was claimed that she was major and that she had married the petitioner no. 2 in a Temple in Gujarat and was living with him before she was sent to the Government Women's Asylum against her wishes. It was alleged that School Leaving Certificate had wrongly showed her Date of Birth as 02.04.2004. The court had come to the conclusion that the School Leaving Certificate of the detenue showed her Date of Birth as 02.04.2004 and under Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 as amended, the first preference has to be given to an educational certificate in such matters. Juvenile has been defined as Section 2(5) of the Act as meaning a child below 18 years. Under Section 37 of the Act, the Child Welfare Committee on being satisfied through enquiry that child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child's wishes in case the child is sufficiently mature