Abhishek vs State Of Uttarakhand And Another

Pankaj Purohit, J

Delay Condonation Application (IA No. 2 of 2023) for condoning delay in filing short counter affidavit is allowed. Short counter affidavit filed on behalf of the State is taken on record.

By means of the present C482 application, the applicant has put to challenge the order dated 26.06.2023, passed in Special Sessions Trial No.14 of 2022, State Vs. Abhishek, under Section 376 AB of IPC and Section 5(m)/6 of POCSO Act, 2012, passed by F.T.S.C./Additional Sessions Judge, Roorkee, Haridwar.

It is submitted by learned counsel for the applicant that an F.I.R. was lodged against the applicant on 26.11.2021 under Section 376(3) of IPC and Section 5(m)/6 of POCSO Act, 2012, registered in Police Station-Manglaur, District-Haridwar (annexure no.1).

After investigation a charge sheet was submitted against the applicant and he is presently facing trial before the learned Special Sessions Judge (POCSO), Haridwar in S.S.T. No.14 of 2022, State of Uttarakhand Vs. Abhishek.

During trial an Application No.34 Ka/1 (annexure no.5) was moved by the applicant before the learned Special Sessions Judge (POCSO), Haridwar stating therein that on the date of occurrence i.e., on 26.11.2021, the applicant was less than 16 years of age – being 13 years, 18 months and 4 days.

In support of his aforesaid averment, he relied upon a certificate issued by the Headmaster of Bal Shiksha Niketan, Junior High School, Village-Kurdi, District-Haridwar wherefrom the applicant was dropped out. The said document is at page no.51 of this paper book.

On the Application No.34 Ka/1 the matter was referred by the learned Special Sessions Judge (POCSO), Haridwar vide order dated 20.02.2023 to the Medical Board to be constituted by the Chief Medical Officer, Haridwar.

In sequel to the order passed by learned Special Sessions Judge (POCSO), Haridwar, the Medical Certificate issued by the District Hospital, Haridwar dated 27.02.2023 (annexure no.9), which was produced before the learned Special Sessions Judge (POCSO), Haridwar and on the basis of the said Certificate learned Special Sessions Judge (POCSO), Haridwar, found applicant above 18 years of age and rejected application of the applicant vide impugned order dated 26.06.2023 (annexure no.10).

It is feeling aggrieved by the order dated 26.06.2023 the applicant is before this Court.

It is contended by counsel for the applicant that learned Special Sessions Judge (POCSO), Haridwar directed the Chief Medical Officer, Haridwar to constitute a Medical Board, but instead of constituting the Medical Board, a Medical Certificate was submitted on 27.02.2023.

It is further contended by counsel for the applicant that in the Medical Certificate of the radiological examination of the applicant, he was found to be in the midst of 18 to 19 years of age.

It is also contended by learned counsel for the applicant that the age of the applicant is calculated on the date of radiological examination while the age should have been calculated on the alleged date of incident i.e., 26.11.2021.

Learned counsel for the applicant submitted that it is only on the basis of the aforesaid Medical Certificate the learned Special Sessions Judge (POCSO), Haridwar, found the applicant to be between 18 to 19 years of age.

According to learned counsel for the applicant the reasoning which has been assigned by the learned Special Sessions Judge (POCSO), Haridwar is perverse as the date of juvenility is to be seen on the date of incident.

It is further submitted by learned counsel for the applicant that in the counter affidavit of the State, particularly, in para no.4, it has been stated that the Medical Certificate was not issued by the Medical Board and only one Doctor has conducted the radiological examination of the applicant.

Having heard learned counsel for the parties and having perused the documents, available on record, especially the Medical Certificate issued by District Hospital, Haridwar dated 27.02.2023, this Court is of the opinion that apparently the Certificate has not been issued by a Medical Board only under the orders of Chief Medical Officer in pursuance of the order dated 20.02.2023 passed by learned Special Sessions Judge (POCSO), Haridwar.

This Court is of the view that since the applicant has not been examined by the Medical Board, therefore, the reliance placed by learned Special Sessions Judge (POCSO), Haridwar to the said Certificate while rejecting the said application moved by the petitioner is totally misconceived.

Accordingly the impugned order dated 26.06.2023, passed in Special Sessions Trial No.14 of 2022, State Vs. Abhishek, under Section 376 AB of IPC and Section 5(m)/6 of POCSO Act, 2012, passed by F.T.S.C./Additional Sessions Judge, Roorkee, Haridwar, is hereby quashed. It is provided that the learned Special Sessions Judge (POCSO), Haridwar, shall direct the Chief Medical Officer, Haridwar to reconstitute a Medical Board in sequel to the earlier order dated 20.02.2023 in order to ascertain the age/juvenility of the applicant, on the date of incident i.e., 26.11.2021. The Medical Board shall submit its report without any unnecessary delay.

With these observations, the C482 application is hereby allowed.